State v. Wright

• Decision Date: 29 December 2016
• Docket Number: A153774
• Citation: 387 P.3d 405,283 Or.App. 160
• Parties: State of Oregon, Plaintiff-Respondent, v. Robert Ellis Wright, Jr., Defendant-Appellant.
• Court: Oregon Court of Appeals

283 Or.App. 160

387 P.3d 405

State of Oregon, Plaintiff-Respondent,

v.Robert Ellis Wright, Jr., Defendant-Appellant.

A153774

Court of Appeals of Oregon.

Argued and submitted February 26, 2015.

December 29, 2016

Matthew Blythe, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. On the supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN, P.J.

In this criminal case, defendant appeals a judgment convicting him of one count of fourth-degree assault, ORS 163.160, of his wife, arguing that the trial court erred in admitting evidence that defendant had previously threatened to kill her. The trial court admitted the evidence on the theory that it was relevant to show that, contrary to defendant's assertions, he had caused the complainant's injuries intentionally, not accidentally. On appeal, defendant contends, among other things, that the court erred in admitting the evidence because the state failed to carry its burden of demonstrating, as required by OEC 404(3), that the evidence was logically relevant to show something other than defendant's bad character. We agree that the court erred in admitting the evidence of the threat, and we conclude that that error was not harmless. Accordingly, we reverse defendant's conviction and remand for further proceedings.

" ‘We evaluate the denial of a defendant's motion to exclude evidence of other acts in light of the record made before the trial court when it [made its decision].’ " State v. Johnson , 281 Or.App. 51, 53, 380 P.3d 1023 (2016) (quoting State v. Brumbach , 273 Or.App. 552, 553, 359 P.3d 490 (2015), rev. den. , 359 Or. 525, 379 P.3d 516 (2016) (citing State v. Pitt , 352 Or. 566, 575, 293 P.3d 1002 (2012) )). Because the state's request to present evidence of defendant's prior threat against the complainant, and defendant's objection to that request, took place during trial, we recount the evidence presented before that request and during the hearing on the request.

One afternoon in December 2011, shortly after the complainant arrived home from work, defendant and the complainant had an altercation at their home. The complainant's boss, who had dropped her off, heard the altercation and called 9-1-1. A Klamath County Sheriff's Deputy responded, and the complainant told him that defendant had punched her twice in the face. The complainant had an abrasion on her face, and defendant had recent injuries on his knuckles.

In an interview with the deputy, defendant said that he had not punched the complainant. Instead, he asserted that, while he had been angrily pulling his coat out of a closet during the argument, the closet door had gotten caught on the coat and the door had bounced off of his own face and then hit the complainant's face as well. He also said that the complainant had tried to push him out the door, and that, while she was doing that, he put his arm out in front of him and "stiff-armed" her, accidentally hitting her face with an open hand. At trial, the complainant testified that she had tried to push defendant out the door and that her injuries were caused accidentally by the closet door, as defendant had asserted to the deputy. She denied that defendant had punched her.

During the complainant's testimony, the state sought to present evidence of a threat that defendant had made against the complainant at some point in the past. At a hearing outside the presence of the jury, the complainant testified, without elaboration, that, "a few years ago," defendant had threatened to take her out into the woods and kill her. The court decided that, in light of defendant's assertion that he had injured the complainant accidentally, not intentionally, and the suggestion that he might have been acting in self-defense (by "stiff-arming" the complainant while she tried to push him out the door) the evidence was admissible under State v. Harris , 81 Or.App. 574, 726 P.2d 943 (1986), rev. den. , 302 Or. 476, 731 P.2d 442 (1987), which we discuss in more detail below. Here, it suffices to note that, in Harris , we applied the test that the Supreme Court established in State v. Johns , 301 Or. 535, 549–56, 725 P.2d 312 (1986), for admission of certain evidence to prove "intent" under OEC 404(3). In making its ruling, the trial court in this case applied the Johns test and, following our application of the test in Harris , decided that the evidence satisfied its requirements.

After the ruling, the complainant testified before the jury that, sometime in the past, defendant had threatened to take her out into the woods to kill her. The jury found defendant guilty, and he appeals the resulting conviction.

Before setting out the parties' arguments, we explain the relevant law in some detail. In this case, our analysis is governed by 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."¹

In State v. Hampton , 317 Or. 251, 855 P.2d 621 (1993), the Supreme Court articulated a general test for admissibility of "evidence of other crimes, wrongs or acts" 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).’ "

Id. at 254, 855 P.2d 621 (quoting State v. Johnson , 313 Or. 189, 195, 832 P.2d 443 (1992) (alteration in Hampton )); see also State v. Turnidge, 359 Or. 364, 450, 374 P.3d 853 (2016) (Turnidge ) (citing Hampton in discussion of relevance of motive evidence).

In Johns , 301 Or. at 549–56, 725 P.2d 312, the Supreme Court addressed the relevance and admissibility of evidence of other crimes, wrongs or acts—also known as "prior bad acts"—to prove intent under a doctrine-of-chances theory. The doctrine of chances is premised on the view that " ‘an unusual and abnormal element[—accident—]might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.’ " Id. at 553, 725 P.2d 312 (quoting John Henry Wigmore, 2 Evidence § 302, 246 (Chadbourne Rev. 1979)). The doctrine is " ‘the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.’ " Id. (quoting Wigmore, 2 Evidence § 302 at 246).

Because the idea underlying the doctrine of chances is that " ‘similar results do not usually occur through abnormal causes,’ " id. (quoting Wigmore, 2 Evidence § 302 at 246), "[i]n order for other acts evidence to be logically relevant under the doctrine of chances, the other act must be similar to the charged act." State v. Tena , 281 Or.App. 57, 64, 384 P.3d 521 (2016).² Thus, "in Johns , the court formulated a six-factor test for determining whether another act is sufficiently similar to a charged act to be admitted on a doctrine-of-chances theory."³ Tena , 281 Or.App. at 64–65, 384 P.3d 521.

After Johns was decided, both we and the Supreme Court applied the Johns test to a wide variety of evidence offered to show intent under OEC 404(3), sometimes without considering whether the evidence was offered on a doctrine-of-chances theory. See, e.g. , State v. Moen , 309 Or. 45, 67, 68, 786 P.2d 111 (1990) (applying Johns test to evidence of recent threats against the victim that showed the defendant's "hostile motive, which in turn is probative of [the defendant's] intent"); Harris , 81 Or.App. at 578, 726 P.2d 943 (in an attempted murder case, applying Johns test to evidence that defendant disliked "whites" and acted violently when he had been drinking).

However, in Turnidge , the Supreme Court recently explained that the Johns test applies only to evidence admitted under a doctrine-of-chances theory. 359 Or. at 434–37, 374 P.3d 853. The court explained, "Prior bad acts evidence can be relevant to a defendant's intent on theories other than the doctrine of chances." Id. at 436, 374 P.3d 853. If the theory of relevance on which the evidence is offered does not rely on the doctrine of chances, the evidence is not subject to the Johns test. Id. The court explained that evidence that shows a defendant's motive—for example, in a homicide case, a recent threat to kill the victim if she dated another man—might be admitted to show that the defendant killed the victim intentionally after he saw her on a date with another man. Id. That type of evidence is not admitted under a doctrine-of-chances theory and, consequently, is not subject to the Johns test. Id. at 436–37;see also Tena , 281 Or.App. at 70, 384 P.3d 521 ("Evidence offered to prove intent by showing the defendant's motive is not subject to the Johns analysis."); Johnson , 281 Or.App. at 56, 380 P.3d 1023 ("[F]ollowing Turnidge , evidence of ‘hostile motive’ need not meet the Johns test.").

Instead of applying the Johns test, the court in Turnidge considered...