State v. Nolen
| Decision Date | 25 May 2022 |
| Docket Number | A170062 |
| Citation | 319 Or.App. 703,511 P.3d 1110 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Nicky Lane NOLEN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Egan, Judge, and Pagán, Judge.*
Defendant appeals from a judgment of conviction for eight counts of first-degree sexual abuse, and one count of first-degree sodomy for alleged conduct involving his granddaughter, K, a minor child.1 On appeal, he raises four assignments of error. We reject his fourth assignment without discussion and write to address his first three assignments in which he contends that the trial court erred by admitting certain prior bad acts evidence under OEC 404(3) and OEC 403. Specifically, he argues that the court erred in admitting (1) testimonial evidence regarding defendant's sexual abuse of his stepdaughter, T; (2) defendant's prior convictions for second-degree rape and second-degree sexual abuse of T; and (3) evidence of defendant's prior abuse of his daughter, C. In defendant's view, the court erred in concluding that the evidence was relevant for a nonpropensity purpose of demonstrating that defendant had a sexual purpose during the alleged conduct. For the reasons explained below, we agree with defendant, and, accordingly, we reverse and remand.
The relevant facts to our analysis are undisputed. In January 2019, nine-year-old K reported to her father, defendant's son, and her mother, that defendant had touched her in her "private area" on multiple occasions. Police were contacted, and K was taken to foster care. Police accompanied K to CARES, where she again repeated the same statements to CARES employees. Following the investigation, the state indicted defendant for multiple sex crimes regarding K.
Before trial, the state filed a motion in limine seeking to admit evidence under OEC 404(4)2 of prior sexual abuse involving children that was committed by defendant.
Defendant, in response, filed a motion in limine to exclude that evidence as either speculative, or, in the alternative, as inadmissible prior bad acts evidence.
The court held a pretrial hearing, at which the parties presented arguments about the admissibility of the prior bad acts evidence. The state sought to offer the other acts evidence regarding T and C to "show [defendant's] sexual purpose in touching [K.]" As relevant to T, the state sought to admit defendant's previous guilty plea in 2004 to second-degree rape and second-degree sexual abuse for misconduct that began when T was around nine years old. The state also sought to admit the testimony of T regarding the sexual misconduct.
The evidence that the state sought to admit concerning C was testimony from C regarding alleged sexual misconduct by defendant that occurred when C was in the second to fifth grade. Defendant was not convicted of any charges related to C; the charges had been dropped as part of plea negotiations. The state explained that C would testify that she was abused by the defendant in a similar manner as K when she was in the second to the fifth grade.
During the hearing, the state argued that the evidence was not being offered for a propensity purpose under OEC 404(4) —although the state did assert that propensity evidence is admissible in child sexual abuse cases—but that the state was offering the evidence for the nonpropensity purpose of demonstrating sexual purpose under OEC 404(3).3 The state argued that at trial they would have to prove that defendant not only touched K, but that when the touching occurred, it was done for a sexual purpose; as an element of first-degree sexual abuse pursuant to ORS 163.427,4 which, the state argued, requires that "sexual contact" be established. Therefore, the state's theory of admissibility for the prior acts evidence was that the evidence demonstrated that defendant "is sexually aroused by children and that, when this touching happened, it was done for a sexual purpose and not by accident or for some other type of purpose." The state further argued that a limiting instruction would be sufficient to controvert the potential prejudice caused by the evidence and prevent the jury from using the other acts evidence as propensity evidence.
Defendant opposed the admission of the other acts evidence, arguing that it was irrelevant and should not be admitted under OEC 401. Defendant then argued that, even if the other acts evidence was relevant, it would be improper to admit it as nonpropensity evidence under OEC 404(3). Defendant argued, relying on State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), that the other acts evidence was propensity evidence that should not be admitted under OEC 404(3) because it had "little to no cognizable probative value," and that the risk that the jury may conclude "that the defendant acted in accordance with [the] past acts on the occasion of the charged crime will be substantial." Lastly, defendant argued that the other acts evidence was unduly prejudicial under OEC 403 because of the high likelihood that the jury would use the evidence as propensity evidence.
The trial court concluded that the other acts evidence was highly relevant, meeting the requirements of OEC 401, and that it was appropriate to admit it under OEC 404(3) for the purpose of demonstrating that defendant acted with a sexual purpose during the alleged touching of the victim. The court explained that the other acts evidence had high probative value because it was "highly relevant" to prove "the nature of the conduct" alleged. Further, the court explained that any potential prejudicial danger that the jury will misuse the other acts evidence will be addressed by the use of a limiting instruction provided to the jury before the evidence is presented and again before closing arguments.
At trial, the state presented T's testimony and defendant's conviction relating to the sexual abuse of T, as well as the testimony of C relating to the charged but not convicted sexual abuse of C. The state argued that the other acts evidence demonstrated defendant's sexual purpose during the alleged touching of the victim in the instant case. A limiting instruction was given to the jury before the presentation of the other acts evidence and before closing arguments.5 The jury returned guilty verdicts on all but one of the charged counts, and the trial court entered a judgment of conviction. This timely appeal followed.
On appeal, defendant argues that the other acts evidence required the jury to use propensity-based reasoning to infer sexual purpose and therefore the trial court erred by admitting the other acts evidence under OEC 404(3). We review the trial court's decision to admit other acts evidence for errors of law. State v. Levasseur , 309 Or. App. 745, 747, 483 P.3d 1167, adh'd. to as clarified on recons. , 312 Or. App. 733, 489 P.3d 630 (2021).
Since the trial court ruled on the motion, we have considered the issue of whether it is proper to admit evidence of a defendant's prior crimes and convictions under OEC 404(3) to show sexual purpose.
OEC 404(3) concerns the admissibility of other acts evidence and bars "the use of other-acts evidence ‘to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion.’ " State v. Martinez , 315 Or. App. 48, 52-54, 499 P.3d 856 (2021). OEC 404(3) bars propensity based other acts evidence because other acts evidence is not admissible to prove the "character" of a person. "Character" for evidence law purposes "means a person's disposition or propensity to engage or not to engage in certain types of behavior." Id . at 52, 499 P.3d 856.
When offering evidence under OEC 404(3), "the proponent must articulate a theory of relevance that does not logically ‘depend on propensity reasoning.’ " Id . at 53, 499 P.3d 856 (citing Levasseur , 309 Or. App. at 753, 483 P.3d 1167 ). That requires the proponent to identify the logical path that it will be asking the fact-finder to follow, and if any step requires propensity-based reasoning, it is not admissible under OEC 404(3). State v. Skillicorn , 367 Or. 464, 482, 479 P.3d 254 (2021). Meaning that, if any step of any theory of relevance brought forth by a party "allow[s] a party to argue propensity," then that other acts evidence is not admissible under OEC 404(3). Levasseur , 309 Or. App. at 752-53, 483 P.3d 1167. "To the extent that propensity evidence is admissible, it is under OEC 404(4) [.]" Id . at 753, 483 P.3d 1167.
Turning to the parties’ arguments on appeal, the state's theory of admissibility under OEC 404(3) is that evidence that defendant had previously been convicted or accused of sexually abusing other children close in age to K, provides nonpropensity evidence that, when defendant allegedly assaulted K, he did so with a sexual purpose.6 See Levasseur , 309 Or. App. at 753, 483 P.3d 1167. The state argues that evidence of defendant's sexual purpose is admissible under a nonpropensity theory since the first-degree sexual abuse statute requires that sexual contact be established as an element. The trial court and the state presented jury instructions that the other acts evidence was conditionally admissible only if the jury had first found that defendant had assaulted K.
Defendant argued that the state's theory of admissibility necessarily implicates propensity-based reasoning because it requires an inference that defendant, who had been attracted to children in the past, must therefore have had a sexual purpose during subsequent alleged...
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