State v. Nolen ( 2022 )

703
Argued and submitted December 15, 2020, reversed and remanded
May 25, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
NICKY LANE NOLEN,
Defendant-Appellant.
Washington County Circuit Court
18CR02816; A170062
511 P3d 1110
Defendant appeals from a judgment of conviction for eight counts of first-
degree sexual abuse, and one count of first-degree sodomy. Defendant argues
that the trial court erred by admitting various other acts evidence under OEC
404(3) for the nonpropensity purpose of demonstrating sexual purpose. Held: The
trial court erred in admitting the other acts evidence under OEC 404(3) because
the state’s theory of relevance required the jury to use propensity-based reason-
ing. The erroneous admission of that evidence likely affected the verdict and
therefore was not harmless.
Reversed and remanded.
Oscar Garcia, Judge.
David O. Ferry, 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.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Mooney, Presiding Judge, and Egan, Judge, and
Pagán, Judge.*
EGAN, J.
Reversed and remanded.
______________
* Egan, J., vice DeVore, S. J.; Pagán, J., vice DeHoog, J. pro tempore.
704 State v. Nolen
EGAN, J.
Defendant appeals from a judgment of conviction for
eight counts of first-degree sexual abuse, and one count of
first-degree sodomy for alleged conduct involving his grand-
daughter, K, a minor child. 1 On appeal, he raises four assign-
ments of error. We reject his fourth assignment without dis-
cussion and write to address his first three assignments in
which he contends that the trial court erred by admitting
certain prior bad acts evidence under OEC 404(3) and OEC
403. Specifically, he argues that the court erred in admitting
(1) testimonial evidence regarding defendant’s sexual abuse
of his stepdaughter, T; (2) defendant’s prior convictions for
second-degree rape and second-degree sexual abuse of T;
and (3) evidence of defendant’s prior abuse of his daughter, C.
In defendant’s view, the court erred in concluding that the
evidence was relevant for a nonpropensity purpose of demon-
strating that defendant had a sexual purpose during the
alleged conduct. For the reasons explained below, we agree
with defendant, and, accordingly, we reverse and remand.
The relevant facts to our analysis are undisputed. In
January 2019, nine-year-old K reported to her father, defen-
dant’s son, and her mother, that defendant had touched her
in her “private area” on multiple occasions. Police were con-
tacted, and K was taken to foster care. Police accompanied
K to CARES, where she again repeated the same statements
to CARES employees. Following the investigation, the state
indicted defendant for multiple sex crimes regarding K.
Before trial, the state filed a motion in limine seek-
ing to admit evidence under OEC 404(4)2 of prior sexual
abuse involving children that was committed by defendant.
1
Defendant was acquitted on one charge of first-degree unlawful sexual
penetration.
2
OEC 404(4) provides that:
“In criminal actions, evidence of other crimes, wrongs or acts by the
defendant is admissible if relevant except as otherwise provided by:
“(a) ORS 40.180, 40.185, 40.190, 40.195, 40.200, 40.205, 40.210 and,
to the extent required by the United States Constitution or the Oregon
Constitution, ORS 40.160;
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
Cite as 319 Or App 703 (2022) 705
Defendant, in response, filed a motion in limine to exclude
that evidence as either speculative, or, in the alternative, as
inadmissible prior bad acts evidence.
The court held a pretrial hearing, at which the
parties presented arguments about the admissibility of the
prior bad acts evidence. The state sought to offer the other
acts evidence regarding T and C to “show [defendant’s] sex-
ual purpose in touching [K.]” As relevant to T, the state
sought to admit defendant’s previous guilty plea in 2004 to
second-degree rape and second-degree sexual abuse for mis-
conduct that began when T was around nine years old. The
state also sought to admit the testimony of T regarding the
sexual misconduct.
The evidence that the state sought to admit con-
cerning C was testimony from C regarding alleged sexual
misconduct by defendant that occurred when C was in the
second to fifth grade. Defendant was not convicted of any
charges related to C; the charges had been dropped as part
of plea negotiations. The state explained that C would tes-
tify that she was abused by the defendant in a similar man-
ner as K when she was in the second to the fifth grade.
During the hearing, the state argued that the evi-
dence was not being offered for a propensity purpose under
OEC 404(4)—although the state did assert that propensity
evidence is admissible in child sexual abuse cases—but that
the state was offering the evidence for the nonpropensity pur-
pose of demonstrating sexual purpose under OEC 404(3).3
The state argued that at trial they would have to prove that
defendant not only touched K, but that when the touching
occurred, it was done for a sexual purpose; as an element of
first-degree sexual abuse pursuant to ORS 163.427,4 which,
3
OEC 404(3) provides that:
“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 purpose, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
4
ORS 163.427 provides, in part, that:
“(1) A person commits the crime of sexual abuse in the first degree
when that person:
“(a) subjects another person to sexual contact[.]”
706 State v. Nolen
the state argued, requires that “sexual contact” be estab-
lished. Therefore, the state’s theory of admissibility for the
prior acts evidence was that the evidence demonstrated that
defendant “is sexually aroused by children and that, when
this touching happened, it was done for a sexual purpose
and not by accident or for some other type of purpose.” The
state further argued that a limiting instruction would be
sufficient to controvert the potential prejudice caused by the
evidence and prevent the jury from using the other acts evi-
dence as propensity evidence.
Defendant opposed the admission of the other acts
evidence, arguing that it was irrelevant and should not be
admitted under OEC 401. Defendant then argued that, even
if the other acts evidence was relevant, it would be improper
to admit it as nonpropensity evidence under OEC 404(3).
Defendant argued, relying on State v. Williams, 357 Or 1,
346 P3d 455 (2015), that the other acts evidence was propen-
sity evidence that should not be admitted under OEC 404(3)
because it had “little to no cognizable probative value,” and
that the risk that the jury may conclude “that the defendant
acted in accordance with [the] past acts on the occasion of
the charged crime will be substantial.” Lastly, defendant
argued that the other acts evidence was unduly prejudicial
under OEC 403 because of the high likelihood that the jury
would use the evidence as propensity evidence.
The trial court concluded that the other acts evi-
dence was highly relevant, meeting the requirements of
OEC 401, and that it was appropriate to admit it under
OEC 404(3) for the purpose of demonstrating that defendant
acted with a sexual purpose during the alleged touching of
the victim. The court explained that the other acts evidence
had high probative value because it was “highly relevant” to
prove “the nature of the conduct” alleged. Further, the court
explained that any potential prejudicial danger that the
jury will misuse the other acts evidence will be addressed
by the use of a limiting instruction provided to the jury
before the evidence is presented and again before closing
arguments.
At trial, the state presented T’s testimony and defen-
dant’s conviction relating to the sexual abuse of T, as well as
Cite as 319 Or App 703 (2022) 707
the testimony of C relating to the charged but not convicted
sexual abuse of C. The state argued that the other acts evi-
dence demonstrated defendant’s sexual purpose during the
alleged touching of the victim in the instant case. A limiting
instruction was given to the jury before the presentation of
the other acts evidence and before closing arguments.5 The
jury returned guilty verdicts on all but one of the charged
counts, and the trial court entered a judgment of conviction.
This timely appeal followed.
On appeal, defendant argues that the other acts evi-
dence required the jury to use propensity-based reasoning
to infer sexual purpose and therefore the trial court erred
by admitting the other acts evidence under OEC 404(3). We
review the trial court’s decision to admit other acts evidence
for errors of law. State v. Levasseur, 309 Or App 745, 747, 483
P3d 1167, adh’d to as clarified on recons, 312 Or App 733, 489
P3d 630 (2021).
Since the trial court ruled on the motion, we have
considered the issue of whether it is proper to admit evi-
dence of a defendant’s prior crimes and convictions under
OEC 404(3) to show sexual purpose.
OEC 404(3) concerns the admissibility of other acts
evidence and bars “the use of other-acts evidence ‘to prove
that a person has a propensity to engage in certain types
of behavior and that the person acted in conformance with
that propensity on a particular occasion.’ ” State v. Martinez,
315 Or App 48, 52-54, 499 P3d 856 (2021). OEC 404(3) bars
propensity based other acts evidence because other acts evi-
dence is not admissible to prove the “character” of a person.
“Character” for evidence law purposes “means a person’s
disposition or propensity to engage or not to engage in cer-
tain types of behavior.” Id. at 52.
5
The limiting instruction provided that:
“You may consider the evidence from the testimony of [T], [C] and the
Convictions for Rape in the Second Degree and Sexual Abuse in the Second
Degree that has been received only to determine if [defendant] acted with a
sexual purpose in the Sexual Abuse in the First Degree counts. You may not
use this evidence to determine whether [defendant] committed these acts.
You must find from the evidence that the alleged acts occurred beyond a rea-
sonable doubt before you may consider the evidence of sexual purpose.”
708 State v. Nolen
When offering evidence under OEC 404(3), “the pro-
ponent must articulate a theory of relevance that does not
logically ‘depend on propensity reasoning.’ ” Id. at 53 (citing
Levasseur, 309 Or App at 753). That requires the proponent
to identify the logical path that it will be asking the fact-
finder to follow, and if any step requires propensity-based
reasoning, it is not admissible under OEC 404(3). State v.
Skillicorn, 367 Or 464, 482, 479 P3d 254 (2021). Meaning
that, if any step of any theory of relevance brought forth
by a party “allow[s] a party to argue propensity,” then that
other acts evidence is not admissible under OEC 404(3).
Levasseur, 309 Or App at 752-53. “To the extent that pro-
pensity evidence is admissible, it is under OEC 404(4)[.]” Id.
at 753.
Turning to the parties’ arguments on appeal, the
state’s theory of admissibility under OEC 404(3) is that
evidence that defendant had previously been convicted or
accused of sexually abusing other children close in age to
K, provides nonpropensity evidence that, when defendant
allegedly assaulted K, he did so with a sexual purpose.6 See
Levasseur, 309 Or App at 753. The state argues that evidence
of defendant’s sexual purpose is admissible under a nonpro-
pensity theory since the first-degree sexual abuse statute
requires that sexual contact be established as an element.
The trial court and the state presented jury instructions
that the other acts evidence was conditionally admissible
only if the jury had first found that defendant had assaulted
K.
Defendant argued that the state’s theory of admis-
sibility necessarily implicates propensity-based reasoning
because it requires an inference that defendant, who had
been attracted to children in the past, must therefore have
6
Although the state’s pretrial motion in limine initially offered the other
acts evidence under OEC 404(4), the state instead argued, during the pretrial
hearing, that the other acts evidence was admissible under OEC 404(3) for a
nonpropensity purpose of demonstrating sexual purpose. The trial court did not
address whether the other acts evidence was admissible under OEC 404(4) for
propensity purposes because it concluded that the evidence was admissible under
OEC 404(3) for nonpropensity purposes. The state thus argued below, and again
on appeal, that the other acts evidence in this case was indeed admissible under
both OEC 404(3) and OEC 404(4). But the trial court reached its conclusion solely
under OEC 404(3).
Cite as 319 Or App 703 (2022) 709
had a sexual purpose during subsequent alleged conduct.
Defendant explains that such an inference boils down to an
argument about defendant’s character, i.e., that when defen-
dant touches a child in their “private areas” that he does so
with a sexual purpose, rather than for another nonsexual
purpose, based on his prior convictions and prior allegations
against him.
Recently, in Martinez, we determined that the trial
court erred by admitting other acts evidence demonstrat-
ing sexual purpose under OEC 404(3) because it required
propensity-based reasoning. 315 Or App at 56. That case did
not require that we determine whether the sexual purpose
admission of the evidence relied on propensity-based rea-
soning because the state conceded that the evidence was in
fact propensity evidence. However, the state argued that the
evidence had been implicitly admitted by the court under
OEC 404(4). Id. We agreed with the state that, under the
facts of that case, the other acts evidence of sexual purpose
did require propensity-based reasoning, but we concluded
that the trial court had admitted the evidence under OEC
404(3) and as such erred.
Similarly, in Levasseur, we addressed whether other
acts evidence consisting of the defendant’s prior crimes,
where the defendant had attacked his victims in “remark-
ably similar circumstances,” to demonstrate sexual pur-
pose, required propensity-based reasoning. 309 Or App at
753.7 We determined that, under the facts of that case, the
theory of admissibility brought forth by the state necessar-
ily required the jury to infer that the defendant had a pro-
pensity to assault women for sexual purposes. Id. The state’s
theory of admissibility in Levasseur was that
“because defendant attacked his victims in the two prior
incidents under remarkably similar circumstances, it is
more likely that, when he assaulted S in this case, he did
so with a sexual purpose. We are mindful of the state’s the-
ory, and the court’s instruction, that the evidence was con-
ditionally admissible only if the jury found that defendant
had assaulted S. Nevertheless, that theory fundamentally
7
Although Levasseur was not a child sexual abuse case, as the victim in that
case was an adult, the case is nevertheless instructive on our conclusion. Id. at 747.
710 State v. Nolen
relied on propensity-based reasoning. It ultimately reduced
to an argument about defendant’s character: that, when
defendant isolates and attempts to grab women, he does so
in order to sexually assault them—rather than to simply
assault or rob them, or to commit other, nonsexual crimes.
The state’s theory of admissibility required the jury to
infer from defendant’s prior crimes that he has a propen-
sity to assault women for sexual purposes, and that he
acted in conformity with that propensity in this case. That
is propensity-based reasoning.”
Id.Similarly, here, the state’s theory of relevance is
that defendant acted in conformance with his prior con-
victions and prior allegations during the alleged conduct
with K, and that therefore defendant must have had a sex-
ual purpose based on those prior convictions and actions.
Even when the state argues that the other acts evidence was
brought forth to prove an element, their theory of admis-
sibility required propensity-based reasoning because it
ultimately was based on defendant’s character. See id. (the
state’s theory fundamentally relied on propensity-based rea-
soning and ultimately reduced to an argument about defen-
dant’s character). The state’s theory of relevance required
the jury to infer that because defendant had previously been
convicted of, and accused of, sexual abuse consisting of simi-
lar conduct, that when defendant allegedly touched K in this
present case, he did so with a sexual purpose.
As stated in Levasseur and Martinez, admitting evi-
dence that requires the jury to use propensity-based reason-
ing is not admissible under OEC 404(3) and is only admis-
sible under OEC 404(4). Therefore, we agree with defendant
that the trial court erred when it admitted the other acts
evidence as nonpropensity evidence under OEC 404(3) based
on the facts of this case.
To the extent that the state is arguing that we
should affirm on an alternate basis,8 we reject that argu-
ment because as stated in Martinez, “[a] trial court’s decision
8
As we understand the state’s argument, it asks us to affirm on the alter-
native basis that OEC 403 balancing was correctly administered regardless of
whether the other acts evidence was admitted under OEC 404(4) or 404(3).
Cite as 319 Or App 703 (2022) 711
* * * about whether other acts evidence is relevant for a non-
propensity purpose, will have a significant effect on whether
the trial court admits that evidence” under OEC 403. 315 Or
App at 54.
Defendant argues that the trial court’s error was
not harmless as the other acts evidence from T and C likely
affected the verdict. The state does not address harm-
lessness. We agree with defendant that the error was not
harmless, as we cannot conclude that “there is little like-
lihood that the evidence that defendant” not only sexually
abused T, but also abused C, affected the jury’s verdict. See
Martinez, 315 Or App at 59 (citing State v. Baughman, 361
Or 386, 407, 393 P3d 1132 (2017)).
As such, we reverse and remand. “On remand, we
leave it to the trial court to determine ‘whether, after con-
ducting a correct analysis under OEC 404 and 403, other
acts evidence should again be received and whether a new
trial is required or appropriate.’ ” Id. (quoting Baughman,
361 Or at 410).
Reversed and remanded.