State v. Taylor
| Decision Date | 17 November 2021 |
| Docket Number | A168298 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kevin Lavin TAYLOR, aka Kevin Lavan Taylor, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
David Sherbo-Huggins, 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.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
In this criminal appeal, defendant contests his conviction for third-degree sexual abuse. In a single assignment of error, defendant argues that the trial court erred in admitting, under OEC 404(3), other-acts evidence depicting defendant's encounter with a woman other than the victim of his sexual-abuse charge shortly before his encounter with the victim. For the reasons that follow, we conclude that the trial court did not err in admitting the challenged evidence as probative of defendant's plan and related mental state. Accordingly, we affirm.
We review a trial court's determination of relevance under OEC 401 for errors of law. State v. Stockton , 310 Or. App. 116, 123, 483 P.3d 657 (2021). We likewise review a trial court's determination that other-acts evidence is relevant and admissible under OEC 404(3) for legal error. Id. In this case, the trial court ruled that the challenged evidence was relevant and admissible under OEC 404(3) during a pretrial hearing on defendant's motion in limine ; thus, our review is limited to the record that was before the trial court at that time. See State v. Warren , 291 Or. App. 496, 510, 422 P.3d 282, rev. den., 363 Or. 744, 430 P.3d 567 (2018). We state the facts accordingly.
One afternoon, J, the victim in this case, was studying on the first floor of the library at her community college. While J was seated at a large table divided into study carrels, a man later identified as defendant sat down next to her. After seating himself, defendant "slowly encroached upon [J's] space," causing her to respond by "stomp[ing] on his foot at one point."1 Even after J asserted her personal space in that manner, the encroachment continued, and, ultimately, "[J] felt [defendant's] hand reach under [the desk] and touch [J's] vagina, sort of around the pubis." J stood up, gathered her books, and moved to a different table. A few minutes later, J texted a friend about the touching, and, after an exchange of messages, she reported the incident to a librarian and campus security.
Defendant denied having had any contact with the woman shown on the video. Although the state was apparently unable to identify that person as a potential witness, the state charged defendant with third-degree sexual abuse and harassment related to the upstairs encounter. Defendant waived his right to a jury trial on those charges and, following a bench trial, was acquitted of those offenses.
As for the charges related to J, defendant asserted that, because he had waived jury as to the charges arising from the upstairs incident, the security footage of that incident was not relevant to any charge being tried to the jury. Defendant further contended that the jury would be confused by the challenged video evidence because "[it] doesn't show any crime has been committed" and, thus, should be excluded as unfairly prejudicial under OEC 403.2 Finally, defendant argued that the evidence was "pure propensity" evidence and should be excluded under OEC 404(3).
The state countered that the video was relevant to establish defendant's mental state, specifically to show that defendant had knowingly or intentionally subjected J to sexual contact. The state noted that the video recording depicted conduct consistent with the behavior that J had described defendant engaging in with regard to her, namely, defendant (1) wandering through the same library on the same day; (2) choosing—from among other available options—an empty seat next to a woman who, like J, was seated alone at a table divided into study carrels; and (3) gradually spreading out his legs to the point that they extended into the woman's personal space.3 Given those similarities, the state argued that the video was relevant to prove that defendant had engaged in knowing conduct with respect to J, because it suggested that his contact with her had not been a mistake, demonstrated defendant's motive in approaching J, and reflected defendant's plan and preparation in approaching each of the women in the library.
After reviewing the video, the court concluded that it was admissible, stating:
At trial, the state played the challenged video recording before the jury during its case-in-chief and while cross-examining defendant. The jury ultimately found defendant guilty of third-degree sexual abuse, ORS 163.415. Defendant appeals the resulting conviction, assigning error to the admission of the video recording of the upstairs encounter.
On appeal, defendant argues that the video evidence was not relevant for any of the purposes advanced by the state and that its admission at trial was harmful. In response, the state primarily argues that the challenged video was relevant to show that defendant had a plan to commit sexual abuse in the library at the time of the charged crime, and that, as evidence of defendant's plan, the challenged evidence was also probative of defendant's motive and the absence of any mistake on his part—in other words, that defendant acted pursuant to that plan.
Under OEC 404(3), "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person to show that the person acted in conformity therewith." Other-acts evidence may, however, be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. As has often been said, OEC 404(3) is an inclusive—rather than exclusive—rule of evidence, meaning that other-acts evidence may be admissible "so long as it is relevant for any purpose other than to prove propensity." State v. Turnidge , 359 Or. 364, 429, 374 P.3d 853 (2016), cert. den. , ––– U.S. ––––, 137 S. Ct. 665, 196 L.Ed.2d 554 (2017). That is, the admissibility of other-acts evidence is not controlled by the relationship of the evidence to one of OEC 404(3) ’s enumerated purposes; rather, its admissibility turns on whether it is relevant to a fact at issue in some way other than proving a propensity to commit certain acts. State v. Pitt , 352 Or. 566, 576, 293 P.3d 1002 (2012). Notably, however, evidence that is admissible under OEC 404(3) remains subject, upon request, to OEC 403 balancing of its probative value against its potential for unfair prejudice and other concerns. See State v. Baughman , 361 Or. 386, 404-05, 393 P.3d 1132 (2017).
As noted, the state argues that the challenged evidence was properly admitted by the trial court for the nonpropensity purpose of proving a plan. Specifically, the state contends that the video evidence of defendant sitting next to another woman and engaging in "protracted man spreading with his legs" to the point of physical contact demonstrates that he had engaged in a "kind of preparatory step or trial run before engaging in the charged conduct" towards J.
Plan, which is an established theory of admissibility for other-acts evidence under OEC 404(3), is further divided into two categories: Evidence either may tend to show that a person acted pursuant to a "true plan," or it may reflect a "spurious plan." Turnidge , 359 Or. at 439, 374 P.3d 853. In a true-plan scenario, the other-acts evidence is offered to "show that the defendant in fact and in mind formed a plan, including the charged and [other acts] as stages in the plan's execution." Id. (internal quotation marks and some brackets omitted). In contrast, evidence of a spurious plan consists of other-acts evidence "offered to show that a defendant engaged in a pattern or systematic course of conduct from which the existence of a plan is to be inferred." Id. (emphasis in original).4
We understand the state's argument to focus on the true-plan rationale. The facts of Turnidge illustrate that rationale. In Turnidge , the Supreme Court concluded that evidence of a 1995 bomb threat qualified as true-plan evidence under the state's theory that the bomb threat was a trial run for the later 2008 bombing that gave rise to the defendant's charges. Id. at 441, 374 P.3d 853. The challenged other-acts evidence in Turnidge consisted of testimony that, in 1995, the defendant had made a bomb threat to a local bank and directed the teller to take $50,000 to an outhouse located at a construction site near the bank. Id. at 426, 374...
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