State v. Wieland

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: WARREN
• Citation: State v. Wieland, 887 P.2d 368, 131 Or.App. 582 (Or. App. 1994)
• Decision Date: 14 December 1994
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. William W. WIELAND, Respondent-Cross-Appellant. CM93-0029; CA A79690.

Page 368

887 P.2d 368

131 Or.App. 582

STATE of Oregon, Appellant-Cross-Respondent, v. William W. WIELAND, Respondent-Cross-Appellant.

CM93-0029; CA A79690.

Court of Appeals of Oregon.

Argued and Submitted June 29, 1994.

Decided Dec. 14, 1994.

Janet A. Metcalf, Asst. Atty. Gen., argued the cause for appellant--cross-respondent. With her on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

David E. Groom, Deputy Public Defender, argued the cause for respondent--cross-appellant. With him on the brief was Sally L. Avera, Public Defender.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

WARREN, Presiding Judge.

Defendant is charged with the 1986 aggravated murder of his mother-in-law. On the state's pretrial motion, the trial court ruled that evidence of a fire on defendant's farm in 1984 was admissible and that evidence of fires on defendant's farm in 1991, after the murder, was not. The state appeals the exclusion of the evidence of the 1991 fires, and defendant cross-appeals the ruling to admit evidence of the 1984 fire.

Defendant is a dairy farmer. In June, 1986, there were three fires in defendant's house. The first started in the attic of the house, possibly caused by an electric exhaust fan. The second was intentionally set; crumpled paper was set afire in a bathroom drawer. The third fire, which destroyed the house, started in paper boxes that were in the dining room. Defendant's mother-in-law lived on the farm, although in a different house than defendant, his wife and two children. She was found murdered on the farm in mid-July, 1986. Defendant was charged with aggravated murder, for having killed the victim to conceal his identity as an arsonist. The state's theory is that defendant intentionally set the three fires in 1986, that the victim found out that he was the arsonist, and that defendant killed her to keep her from revealing his identity as the arsonist.

This case involves evidence of other fires on defendant's property. In 1984, there was a fire in a barn on defendant's dairy. The source of the fire was an electric fence box that defendant had recently installed. Defendant had worked as an electrician in the past. Defendant had earlier told an employee that the employee "would find $600 lying around" if the employee burned down the barn, and that, after the barn burned, defendant had said that the house would be next, because he knew how to get money from insurance companies.

In 1991, after defendant and his family had moved to Washington and purchased another dairy farm, there was a series of fires on the Washington farm. There had been a flood in 1990, resulting in substantial losses to the dairy from which it was unable to recover. On September 12, 1991, defendant gave notice to the seller that he intended to make no further payments on the mortgage. Early in the morning of September 16, there were four fires on the farm; three in outbuildings, all of which were destroyed, and one in the house, which was extinguished before it caused significant damage. The fires were set using flammable liquids. A neighbor reported seeing defendant's vehicle leaving the scene.

Another fire at defendant's Washington farm was reported on November 18, 1991. It destroyed the house. Although defendant was no longer living at the farm, his truck had been seen at the property the evening before the fire. Fire investigators concluded that the fire had been intentionally set.

Before trial, the state sought a ruling that evidence of the 1984 fire and the 1991 fires would be admissible. In his response to the state's motion, defendant agreed that, because of the allegations in the indictment charging aggravated murder, evidence of the 1986 fires is admissible. The trial court ruled that evidence of the 1984 fire is admissible but that evidence of the 1991 fires is not.

On appeal, the state challenges the trial court's exclusion of evidence of the 1991 fires on defendant's dairy farm in Washington. It argues that that evidence is admissible under OEC 404(3), which provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The state asserts that the evidence is independently relevant for a noncharacter purpose. It claims that the evidence is logically relevant to prove (1) that all of the 1986 fires were caused by arson, and (2) that the 1984, 1986 and 1991 fires were all set by a single arsonist, who is a member of defendant's immediate family. Defendant responds that the 1991 fires have no logical relevance to this case, because the state is not required to prove arson in this prosecution for aggravated murder. He also asserts that, because the state's theory is that defendant killed the victim in order to prevent her from revealing his identity as the person setting the fires on his dairy in 1986, fires of which the victim had no knowledge are irrelevant. Because the victim had died by the time the 1991 fires occurred, she could not have been aware of them and, therefore, they cannot be relevant. Finally, he asserts that, even if the evidence of the 1991 fires is relevant, its probative value is outweighed by its prejudicial effect.

In State v. Hampton, 317 Or. 251, 855 P.2d 621 (1993), the Supreme Court discussed admissibility under OEC 404(3). It said:

"The general rule is that the prosecution may not introduce evidence of other crimes, wrongs, or acts committed by a defendant to suggest that, because the defendant is a person of criminal character, it is more probable that the defendant committed the crime for which he or she is on trial. OEC 404(3); State v. Johnson, 313 Or 189, 194, 832 P.2d 443 (1992). Evidence of other crimes, wrongs, or acts may be admitted, however, if it is introduced to prove some other relevant purpose, such as to prove a defendant's motive for committing the crime. OEC 404(3); State v. Johnson, supra, 313 Or at 194 [832 P.2d 443].

"A three-part test, the first two parts of which are relevancy considerations and the third part of which involves the OEC 403 balancing test, governs the admissibility of evidence of other crimes, wrongs, or acts for 'other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident' under OEC 404(3):

" '(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3).' State v. Johnson, supra, 313 Or at 195 [832 P.2d 443] (footnotes omitted)." 317 Or. at 253-54, 855 P.2d 621. (Footnotes omitted; brackets in original.)

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401. The state's theory of this case is that defendant killed the victim in order to conceal his identity as the person who set the three fires on his dairy in 1986. Defendant's theory is that the 1986 fires were either accidental, or they were set by someone other than him. In order to prove its theory, the state asserts that it must prove that the 1986 fires were caused by arson. It relies on what it calls the "doctrine of chances" in support of its argument that proof of the fires in 1991 tends to prove that all of the 1986 fires were deliberately set. Defendant argues that the doctrine of chances has never been adopted in Oregon and, therefore, cannot support admission of the evidence.

The Supreme Court explained the theory in State v. Johns, 301 Or. 535, 552, 725 P.2d 312 (1986):

"Imwinkelried writes that Wigmore's theory [of admissibility of prior crime evidence involving the issue of mens rea ] is based upon the doctrine of chances and under the doctrine the proponent uses uncharged misconduct evidence inductively and probabilistically:

" ' * * * The doctrine teaches us that the more often the defendant performs the actus reus, the smaller is the likelihood that the defendant acted with an innocent state of mind. The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault. In isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, the defendant's act takes on an entirely different light. The fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual or objectively improbable to be believed. The coincidence becomes telling evidence of mens rea.' Imwinkelried, Uncharged Misconduct Evidence 8, § 5.05 (1984) (footnotes omitted)."

We read Johns as accepting...