State v. Thompson
| Decision Date | 16 November 2022 |
| Docket Number | A175103 |
| Citation | 322 Or.App. 729 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. EDWARD SAMUEL THOMPSON, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and submitted October 4, 2022
Lane County Circuit Court 19CR49992; A175103 Debra K. Vogt, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Powers, Judge, and Pagán Judge.
Defendant was convicted of four counts of first-degree rape (Counts 1 4, 7, and 10), one count of first-degree sodomy (Count 2) and five counts of first-degree sexual abuse (Counts 3, 6, 9, 12, and 15) against K, a family friend whom he babysat.[1] He appeals the judgment of conviction, assigning error to the trial court's admission of certain "other acts" evidence, specifically evidence (1) of uncharged allegations by defendant's niece, S, that defendant had raped and sexually abused her in a hotel bathroom; (2) that defendant was convicted of sexually abusing his foster sister in 1996; (3) that defendant raped that foster sister from the time he was 12 to 15 years old and sexually abused other foster siblings; (4) of defendant's admission that he sexually abused 13 minor females and males when he was a juvenile; (5) of defendant's admissions that he still struggles with his sexual attraction to females between the ages of 7 and 12, and that he has struggled like addicts do with their addictions; (6) of defendant's admission that he masturbates to thoughts and fantasies about his past minor victims; and (7) of defendant's admission that he had viewed child pornography in the past.[2]
In its written opinion and order, the trial court held that the evidence was admissible "for purposes other than to show that the defendant acted in conformity with a trait of his character, it is specifically relevant to provide motive, intent and plan," citing OEC 404(3).[3] The court further concluded that, under OEC 403,[4] "the probative value of the evidence * * * outweighs the danger of unfair prejudice, confusion of the issues or misleading the jury," explaining that it was "highly probative of the defendant's sexual interest in [K]," which was relevant to proving that defendant acted with the purpose of arousing or gratifying his sexual desire, that he planned to become K's care provider so he would have the opportunity to sexually abuse her, and that he had motive to sexually abuse her.
The state concedes that the evidence was not relevant for any nonpropensity purpose under OEC 404(3). We agree. As the state recognizes, its theory of relevance for admitting the evidence depended on a propensity inference; thus, the trial court erred in admitting the challenged evidence for a noncharacter purpose under OEC 404(3). See State v. Cave, 321 Or.App. 81, 86, 516 P.3d 279 (2022) . Here, as in Cave, if the evidence was admissible, "it was admissible as propensity evidence under OEC 404(4),[5] not as nonpropensity evidence under OEC 404(3)." 321 Or.App. at 87.
The state further concedes, in response to defendant's memorandum of additional authorities, that, under our recent decisions in Cave and State v. Travis, 320 Or.App. 460, 513 P.3d 614 (2022), the trial court erred because it is not clear that the court considered the relevance of the evidence as propensity evidence under OEC 404(4).[6] Again, we agree and accept the state's concession. The record in this case does not permit an inference that the trial court considered the evidence for a propensity purpose under OEC 404(4), such that its OEC 403 balancing was not affected by the error in admitting the evidence under OEC 404(3). See State v. Baughman, 361 Or. 386, 405, 393 P.3d 1132 (2017) (); Cave, 321 Or.App. at 87-88 (); Travis, 320 Or.App. at 466 ().
As in Cave, this is not an instance "where the trial court's explanation of its ruling indicates that it clearly considered the propensity-based nature of the evidence in its OEC 403 balancing." 321 Or.App. at 88. To the contrary, although the state could be understood to have argued that the evidence was also admissible under OEC 404(4), the trial court unambiguously stated in its ruling that it was admitting the evidence for "other than" propensity purposes- specifically, motive, intent, and plan-citing OEC 404(3), and never mentioning OEC 404(4). We thus understand the court to have admitted the challenged evidence solely on the basis of OEC 404(3). Because the court conducted its OEC 403 balancing through that lens, we cannot conclude that the court considered the "specific prejudices" associated with propensity evidence. Id. at 89. As the Supreme Court has observed;
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