State v. Zybach

• Decision Date: 05 October 1988
• Citation: 761 P.2d 1334,93 Or.App. 218
• Parties: STATE of Oregon, Respondent, v. John Michael ZYBACH, Appellant. 10-86-02070; CA A42508.
• Court: Oregon Court of Appeals

Page 1334

761 P.2d 1334

93 Or.App. 218

STATE of Oregon, Respondent, v. John Michael ZYBACH, Appellant.

10-86-02070; CA A42508.

Court of Appeals of Oregon.

Argued and Submitted Nov. 25, 1987.

Decided Oct. 5, 1988.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause, for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before JOSEPH, C.J., and WARREN and ROSSMAN, JJ.

JOSEPH, Chief Judge.

Defendant appeals his conviction for rape in the second degree. He contends that the trial court erred by admitting evidence of "other crimes" or "other bad acts." OEC 404(3). ¹ We reverse.

The court admitted evidence of three contacts or attempted contacts between the victim, a juvenile, and the defendant which occurred after the alleged rape. The first incident occurred approximately one month afterward, when he exposed his penis and attempted to kiss her. In the second, six or seven months later, defendant approached the victim and her friend, kicked them in the buttocks and attempted to kiss the victim. In the third, defendant approached the victim's friend, asked her about the victim and told the friend to meet him later that evening and not to tell anybody. After that, the friend's mother called the police, who were then told of all three incidents.

On a motion in limine, defendant argued that the state could not offer evidence of his character in its case-in-chief before he had put his character in issue. He also argued that evidence of other crimes or other bad acts is not admissible to prove the character of an accused. The state contends that, notwithstanding the general rule against admissibility of "other crimes" evidence, evidence of other contacts of a sexual nature between a defendant and the purported victim of a sexual offense is admissible, because it is relevant to showing the propensity of the defendant to pursue sexual activities with the victim. The state relies on State v. Kristich, 226 Or. 240, 242, 359 P.2d 1106 (1961); State v. Risen, 192 Or. 557, 565, 235 P.2d 764 (1951); State v. Pace, 187 Or. 498, 507, 212 P.2d 755 (1949); State v. Eggleston, 31 Or.App. 9, 13, 569 P.2d 1088 (1977), rev. den. 281 Or. 99 (1978); and Barzee v. Cupp, 29 Or.App. 705, 707, 564 P.2d 1366 (1977). The state also contends that it is entitled to prove its case to the best of its ability and that evidence of contacts or attempted contacts between defendant and the victim after the charged offense tend to explain why the victim delayed reporting the crime and lends credibility to her allegations.

Adoption of the Evidence Code in 1981 deprived the cases upon which the state relies of their substantial authority. Under OEC 404, evidence of the character of an accused is admissible when it is an essential element to be proved in a case. However, that evidence is not admissible solely to prove that he acted in conformity with that character. OEC 404(2); ² see State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975). In addition, the prosecution may not introduce evidence of the accused's bad character or propensity to commit a crime unless and until the accused himself, or through the testimony of another witness, has put his character or propensity in issue. State v. Davis, 54 Or.App. 133, 136, 634 P.2d 279 (1981); State v. Henley, 27 Or.App. 607, 611, 557 P.2d 33 (1976), rev. den. (1977). What is sought to be avoided is the danger of prejudice by tempting the jury to decide the case on an improper basis when the nature of the crime is itself inflammatory and the potential for prejudice is high. We apply a rule of inclusion narrowly in cases involving sex crimes. Youngblood v. Sullivan, 52 Or.App. 173, 176, 628 P.2d 400, rev. den. 291 Or. 368, 634 P.2d 1347 (1981); State v. Sicks, 33 Or.App. 435, 438, 576 P.2d 834 (1978).

The trial court allowed the state to introduce evidence of the first incident in its case-in-chief to show defendant's propensity for illicit sexual contacts with the victim. In so doing, the court relied on the cases listed above on which the state relies, in particular, State v. Pace, supra, which held:

"In prosecutions for statutory rape, evidence of other similar criminal acts with the same child is admissible to show the lustful disposition of the defendant and the probability of his having committed the particular act charged in the indictment." 187 Or at 507, 212 P.2d 755. (Citation omitted.)

The court erred in the light of OEC 404(2) and (3).

OEC 404(3) expressly provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person or to show that the person acted in conformity with that character. Such evidence may, however, be admissible for other purposes which are stated in OEC 404(3). The exceptions to the rule against evidence of a person's character are carefully delimited in OEC 404(2). The code's drafters did not see fit to include the exception stated in Pace. The evidence of the uncharged misconduct had a substantial likelihood of causing the jury to convict defendant as a "bad person" or, more narrowly, because he has a propensity to commit sexual acts with children, rather than because the charged offense was proven.

The court also allowed the state to prove the second contact as supposedly relevant to why the victim delayed reporting the crime. It is not at all apparent why it would have that probative effect but, in any event, its overwhelming probative effect would be to show defendant's bad character. It would not be admissible for that purpose unless defendant had opened the door by putting his character "clearly and expressly" in issue. State v. Davis, supra, 54 Or.App. at 138, 634 P.2d 279; State v. Henley, supra, 27 Or.App. at 611, 557 P.2d 33. He had not done that.

At the pretrial hearing, the trial court excluded evidence of the third contact, presumably because "other victims" evidence is ordinarily not relevant to the charged crime. The court then said that, if the state "feels a need to show that the defendant made inquiry concerning [the victim] to [the friend] on March 2nd, that would be permitted, regardful [sic] it is rather sanitized * * *." Later, at the beginning of the trial and before anyone had testified, the state argued that the contact was relevant to show why the victim delayed reporting the crime and that defendant's conversation with the victim's friend convinced both of them to report the rape to their parents. The trial judge then changed his mind, stating:

"[I]t is admissible.

" * * *

"Particularly if there is some impeachment of her in the case-in-chief, [the jury] can draw a reasonable inference that it sounds just a bit suspicious. That is, if something of that nature could be masked in secrecy for that length of time for no particularly strong or apparent reason, and suddenly be revealed.

"Certainly no new or renewed claimed overture or attack on the victim. All of a sudden she reports that she has something that she has kept so precious and secret for so long. And hence, the jury could infer without explanation there is some doubt as to her veracity; therefore, some doubt as to her testimony on the matters alleged in the indictment. They may anyway, for all the court knows.

"But for the court to deprive the state of available evidence to fill in that chain in its case-in-chief seems to be improper for the court to do.

" * * *

"And it has, it seems to me, a valid evidentiary proof, merit that is admissible in this case. And that will be the ruling of the court.

"Neither the court, nor the prosecutor can anticipate anymore that the defendant can remain silent or call no witnesses.

"The burden is on the state to prove its case beyond a reasonable doubt, by competent, admissible evidence."

It was reversible error to allow evidence of the contact between defendant and the victim's friend without defendant having raised the issue of delayed reporting. Even if it was reasonable to anticipate that defendant might cross-examine the victim or the friend about the reporting delay, it was not proper to approve rehabilitative testimony before there had been any impeachment.

Reversed and remanded for a new trial.

ROSSMAN, Judge, dissenting.

It has been settled law for years that evidence of sexual contact between a defendant and a victim of a sexual offense is admissible to show the disposition of the defendant to pursue the victim. See State v. Kristich, 226 Or. 240, 242, 359 P.2d 1106 (1961); State v. Risen, 192 Or. 557, 565, 235 P.2d 764 (1951); State v. Pace, 187 Or. 498, 507, 212 P.2d 755 (1949); State v. Eggleston, 31 Or.App. 9, 13, 569 P.2d 1088 (1977), rev. den. 281 Or. 99 (1978); Barzee v. Cupp, 29 Or.App. 705, 707, 564 P.2d 1366 (1977).

There is no basis for the majority's supposition that the legislature intended to change this rule by adopting the Oregon Evidence Code. According to the majority, the exceptions to the rule against using evidence of a person's character to prove that he acted in conformity with that character on the occasion in question are "carefully delimited in OEC 404(2)." 93 Or.App. at 222, 761 P.2d 1336. That fails to acknowledge, however, that OEC 404(2) does not pertain to evidence intended to show the defendant's lustful disposition or sexual propensity. Rather, such evidence traditionally has been viewed as "admissible for other purposes." See Getz v. State, 538 A.2d 726, 732 (Del.Supr.1988); McCormick, Evidence 560-1, § 190 (3rd Ed.1984)...