State v. Pitt

• Decision Date: 18 October 2012
• Docket Number: SC S058996).,(CC 011381,CA A137399
• Citation: 352 Or. 566,293 P.3d 1002
• Parties: STATE of Oregon, Respondent on Review, v. Douglas Leroy PITT, Petitioner on Review.
• Court: Oregon Supreme Court

352 Or. 566

293 P.3d 1002

STATE of Oregon, Respondent on Review,

v.Douglas Leroy PITT, Petitioner on Review.

(CC 011381; CA A137399; SC S058996).

Supreme Court of Oregon.

Argued and Submitted May 4, 2011.

Decided Oct. 18, 2012.

On review from the Court of Appeals.^*

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review.

Mary H. Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Shannon T. Reel, Assistant Attorney General.

Before BALMER, Chief Justice, and DURHAM, DE MUNIZ, KISTLER, WALTERS, and LINDER, Justices.^**

DURHAM, J.

A jury convicted defendant of two counts of first-degree unlawful sexual penetration, ORS 163.411, and two counts of first-degree sexual abuse, ORS 163.427. Defendant appealed, assigning error to the trial court's order denying his motion in limine¹ to exclude evidence of prior uncharged sexual misconduct involving the victim, A, and another individual, R. The Court of Appeals affirmed defendant's convictions, concluding that the trial court did not err in declining to exclude the challenged evidence because it was relevant to bolster the victim's credibility in identifying defendant as her abuser. State v. Pitt, 236 Or.App. 657, 237 P.3d 890 (2010). We granted review to decide whether the Court of Appeals properly affirmed the trial court's decision to deny defendant's motion in limine. For the reasons set forth below, we reverse the decision of the Court of Appeals and the circuit court.

Defendant was charged in Clatsop County Circuit Court with sexually abusing A, the four-year-old daughter of defendant's girlfriend, Snider. In the summer of 2001, defendant moved into a Lane County residence with Snider and A. Snider's sister, Finney, and Finney's four-year-old daughter, R, also lived at that residence. In September, defendant, Snider, and A moved to Clatsop County. Shortly after the move, Snider noticed a change in A's behavior. A began having nightmares, wetting the bed, and resisting being left alone. In December, A pointed to her genital area and told Snider that defendant “touches me there.” A referred to defendant as “Doug.” Snider then took A to the police station, where officers arranged to have A evaluated at the Lighthouse, a child abuse assessment center.

At the Lighthouse, Dr. Stefanelli conducted an interview and physical examination of A. During the examination, A disclosed that defendant had touched her genital area more than once. Stefanelli also found physical evidence consistent with sexual abuse. Based on a June 1999 medical examination of A that showed no physical signs of sexual abuse, Stefanelli diagnosed A as having been sexually abused between June 1999 and December 2001.

The Lighthouse staff subsequently referred A to Dr. Berdine, a clinical psychologist, for further evaluation. When Berdine met with A a few days later, A stated that defendant had touched her genital area when she lived in Clatsop County. A also disclosed that defendant had touched her genital area when she lived in Lane County, and that she had seen defendant touch R's genitals there too.

A and R were later interviewed at the Lane County Child Advocacy Center by the center's director, Broderick. Both interviews were conducted separately and were videotaped. During Broderick's interview with A, A stated that defendant had touched her genital area and that she had observed defendant touch R in a similar manner. When R was interviewed, she too disclosed that defendant had touched her genital area, and that she had observed defendant touch A as well.

Defendant was charged by indictment with two counts of first-degree unlawful sexual penetration and two counts of first-degree sexual abuse, based on conduct involving A that occurred in Clatsop County. Defendant's case was initially tried in 2002 and defendant was convicted of all charges. Defendant appealed his convictions, and the Court of Appeals reversed and remanded the matter for retrial. See State v. Pitt, 209 Or.App. 270, 147 P.3d 940 (2006), adh'd to on recons.,212 Or.App. 523, 159 P.3d 329 (2007) (reversal based on a violation of defendant's constitutional right to confront witnesses against him). This case concerns the proceedings on retrial.

On remand and before trial, defendant moved to exclude all evidence of prior uncharged misconduct involving A and R that took place in Lane County. At a hearing on defendant's motion, defendant contended that that evidence was inadmissible character evidence under OEC 404(3).²Specifically, defendant argued that the evidence was irrelevant to prove “intent” under OEC 404(3) because his “defense is and has always been that this didn't happen, that he didn't do it, if it did happen, it wasn't him. And so the question of intent is not really at issue in this case.” Defendant added, “We're not arguing that this was an incidental touching, that it was an accidental touching, that it was a touching for some other purpose.” The state, on the other hand, asserted that proof of multiple incidents of sexual abuse “would bear upon the absence of mistake or accident, in addition to going to defendant's intent.”

In a letter opinion denying defendant's motion, the trial court applied the analysis set out in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). ³ Under that analysis, the court found that: (1) the charges required the state to prove that defendant had acted with intent; (2) the Lane County incidents would have required intent as well; (3) A was the same victim and R was in the same class of victims; (4) defendant faced similar charges in Lane County for his conduct there; (5) the physical elements of the conduct were the same or very similar; and (6) the evidence was probative of defendant's knowledge but could confuse the jury. Examining those factors in whole, the trial court determined that the evidence was relevant “in determining one of the necessary elements of each count, the mental state.” The trial court further reasoned that, because defendant had indicated during the hearing on his motion that he may raise the defense that someone else committed the crime—specifically that A's statements stemmed from an alleged incident of sexual abuse of A by her father David in 1999 and that David, who had ongoing contact with A, could have been responsible for the physical evidence present—“then [the] identity of who committed the crime is at issue.” Therefore, the trial court concluded that the evidence could be admitted at trial, and it denied defendant's motion.

In accordance with that ruling, the state offered evidence at trial relating to defendant's charged conduct as well as his prior uncharged conduct. In particular, A testified that defendant had touched her genital area in Clatsop County (charged conduct) and that defendant had touched her and R in Lane County (uncharged conduct). R also testified that she thought, but was not certain, that defendant had touched her genital area in Lane County (uncharged conduct). Stefanelli further testified about the physical evidence that she had discovered in her examination of A, as well as her diagnosis that A had been sexually abused.

On cross-examination of the witnesses, defendant elicited testimony that young children are highly suggestible; that A and R lived in a chaotic environment during the time of the alleged abuse; that both defendant and R's father were named Doug and therefore the reference to “Doug” was potentially ambiguous; and that A's father David was accused of sexually abusing A in 1999 and had had ongoing contact with A since that time. Stefanelli also stated on cross-examination that she could not identify a particular individual as A's abuser based on the physical evidence present. Defendant did not otherwise raise an OEC 404(3) objection to the introduction of uncharged misconduct evidence during the trial on remand.

After closing arguments, the trial court instructed the jury to consider the evidence of defendant's prior uncharged conduct “for two limited purposes”:

“first, as to whether defendant acted with knowledge as to the alleged criminal conduct in this case, or second, as to the identity of the person who committed the allegations in this case, i.e., whether the defendant or someone else committed the alleged criminal conduct. Specifically you are not to draw the inference that the evidence of the other conduct makes defendant guilty of the charges in this case.”

The jury found defendant guilty of all charges.

Defendant appealed and assigned error to the trial court's order denying his motion in limine. Defendant reprised his pretrial arguments that the uncharged misconduct evidence was inadmissible.⁴

The Court of Appeals affirmed the trial court's decision to deny defendant's motion in limine, but it did so on narrower grounds than those relied on by the trial court. The Court of Appeals reasoned that the uncharged misconduct evidence was relevant and admissible under OEC 404(3) to prove the identity of the perpetrator in light of defendant's position that, if the sexual abuse had occurred, another person was responsible. The court acknowledged that the evidence did not comport with the “identity” exception to OEC 404(3) as discussed in Johns. In Johns, this court had explained that “evidence of other crimes offered to prove identity is strictly limited to crimes committed ‘by the use of a novel means or in a particular manner’ so as to earmark the acts as the handiwork of the accused.” 301 Or. at 551, 725 P.2d 312. Notwithstanding that stated limitation, the Court of Appeals explained in its opinion that, “[b]y arguing that [A] was abused by someone else, defendantcontested the accuracy of the victim's identification of him as the perpetrator of the charged acts.” Pitt, 236 Or.App. at 663, 237 P.3d 890. The court...