State v. Davis ( 2022 )

737
Argued and submitted September 30, 2020, reversed and remanded
May 25, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
THOMAS ALAN DAVIS, JR.,
Defendant-Appellant.
Washington County Circuit Court
C131383CR; A169891
511 P3d 10
Defendant appeals a judgment of conviction for one count of first-degree
kidnapping, one count of attempted first-degree sexual abuse, and one count of
fourth-degree assault. The trial court ruled that two notes written by defendant
were admissible under OEC 404(4) and OEC 403. Both notes described a desire
to engage in violent sexual acts, and defendant left the notes on the cars of two
strangers. In considering their admissibility, the trial court determined that the
notes gave rise to an inference that defendant had “a general interest in violent,
nonconsensual sex with women he does not know,” and, therefore, were relevant
to explain defendant’s “purpose or motive” in attacking the victim. On appeal,
defendant assigns error to the trial court’s ruling that the notes were admis-
sible, arguing that OEC 403 rendered the notes inadmissible because the pro-
bative value of the notes was substantially outweighed by the danger of unfair
prejudice. Held: The Court of Appeals concluded that although the notes written
by defendant were probative, it was an abuse of discretion for the trial court to
determine under OEC 403 that the probative value of the notes was not sub-
stantially outweighed by the danger of unfair prejudice. Consequently, the notes
should not have been admitted into evidence.
Reversed and remanded.
James Lee Fun, Jr., 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.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
738 State v. Davis
Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and Armstrong, Senior Judge.*
TOOKEY, P. J.
Reversed and remanded.
Armstrong, S. J., dissenting.
______________
* Lagesen, C. J., vice Hadlock, J. pro tempore.
Cite as 319 Or App 737 (2022) 739
TOOKEY, P. J.
This case is before us for a second time. In defen-
dant’s first appeal, we reversed and remanded the case after
determining that certain evidence—viz., two notes written
by defendant, both describing a desire to engage in violent
sexual acts, that defendant left for two strangers—had been
erroneously admitted under OEC 404(3), which permits
admission of evidence of other crimes, wrongs, or acts for a
nonpropensity purpose only.1 State v. Davis, 290 Or App 244,
414 P3d 887 (2018). On remand, the trial court reinstated
the original judgment after determining that the notes were
admissible under OEC 404(4) and that the probative value
of the notes outweighed any unfair prejudice under OEC
403.2 See State v. Baughman, 361 Or 386, 410-11, 393 P3d
1132 (2017) (explaining remand in these circumstances).
On appeal, in his first assignment of error, defen-
dant assigns error to the trial court’s ruling on remand that
the notes were admissible. He argues, among other points,
that the trial court erred under OEC 403 in determining
that the probative value of the notes outweighed the sub-
stantial risk of unfair prejudice that their admission into
evidence created.
We conclude that the trial court abused its discre-
tion when it determined that the probative value of the notes
was not substantially outweighed by the danger of unfair
prejudice to defendant under OEC 403. Consequently, we
reverse the trial court’s determination that the notes were
admissible and remand. As a result, we need not reach
defendant’s other assignments of error.
1
OEC 404(3) 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, iden-
tity, or absence of mistake or accident.”
2
OEC 404(4) provides, in part, “In criminal actions, evidence of other crimes,
wrongs or acts by the defendant is admissible if relevant except as otherwise
provided by” certain rules of evidence, and the state and federal constitutions.
OEC 403 provides, “Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair prejudice, confu-
sion of the issues, or misleading the jury, or by considerations of undue delay or
needless presentation of cumulative evidence.”
740 State v. Davis
I. HISTORICAL AND PROCEDURAL FACTS
A. The Notes
Prior to the event giving rise to the charges against
defendant in this case, defendant left handwritten notes
on the cars of two female strangers at two different Target
store parking lots. One of those notes was left 10 days prior
to the event giving rise to the charges against defendant
in this case, and the other note was left approximately two
months prior to that event. During defendant’s first appeal,
we explained that the notes described “a desire to engage in
violent sexual acts,” and more specifically, we explained:
“The two notes are very similar: Both are written in
the second person (using the words ‘you’ and ‘your’), both
graphically describe the women’s bodies, and both express,
in nearly identical terms, a desire to engage in anal inter-
course with the women in a way that would cause them
pain.”
Davis, 290 Or App at 246, 248.
It is undisputed that defendant wrote the notes;
however, there is no evidence in the record that he ever
approached or tried to make physical contact with either
woman.
B. The Event Giving Rise to Charges Against Defendant
and Defendant’s Trial
During defendant’s first appeal, we summarized
the historical facts leading to the charges against defendant
as follows:
“On December 27, 2012, the victim, M, went for a run
near her home. She wore a jacket and jogging pants, and
she listened to music while she ran. As she was running
down the sidewalk, defendant tackled her from behind, and
she blacked out. She could feel defendant ‘dragging’ her,
and when she became fully alert, she was face down in a
shallow ditch near the sidewalk. The ditch was next to an
area with tall grass, brush, and trees. M was able to flip
her body over, and she began to fight defendant, who stood
over her and held one of her hands down. Using her other
hand, M tried to hit defendant and then shoved two of her
fingers into his mouth. At that point, defendant stood up
Cite as 319 Or App 737 (2022) 741
and ran away. As a result of the attack, M suffered abra-
sions, cuts, and an injury to her shoulder.”
Id. at 247.
As a result of that conduct, defendant was charged
with one count of first-degree kidnapping, ORS 163.235
(Count 1); one count of attempted first-degree sexual abuse,
ORS 163.427, ORS 161.405 (Count 2); and one count of
fourth-degree assault, ORS 163.160 (Count 3).
As to the charge of attempted first-degree sexual
abuse, Count 2, the state alleged that defendant unlawfully
and intentionally attempted to subject M to sexual contact
by means of forcible compulsion. ORS 163.427; ORS 161.405.
The state’s theory with regard to that count was that M had
fought defendant off before he could make his sexual pur-
pose unmistakable.
During defendant’s trial, the state presented no
direct evidence of actual or attempted sexual contact with
M, but offered the two notes, described above, that defen-
dant had left on women’s cars in Target parking lots. The
state argued that the notes were admissible because they
were relevant for the purpose of proving “that defendant’s
motive in attacking M was to subject her to forcible sexual
contact.” Davis, 290 Or App at 248. The state made clear
that it “was offering the notes ‘solely’ to prove defendant’s
‘intent,’ ” and characterized the notes as “a clear expression
of defendant’s intent to sexually assault a female stranger.”
Id.Defendant responded that the notes were irrelevant
under OEC 401, and, in the alternative, that even if the
notes had some relevance, any probative value was substan-
tially outweighed by the risk of unfair prejudice under OEC
403. Id. at 248-49.
The trial court admitted the notes under OEC 404(3)
for what it called “the ‘noncharacter purpose’ of explaining
‘what conscious purpose or what motive, if any, that [defen-
dant] had in engaging in a kidnapping and assault’—in
other words, ‘to distinguish whether or not the goal was sex-
ual assault or simply a physical assault.’ ” Davis, 290 Or App
at 249 (brackets in Davis). The trial court instructed the
742 State v. Davis
jury that the notes could be considered only for their rele-
vance to defendant’s motive for attacking M:
“As regards the statements attributed to defendant in
[the notes he left for the female strangers], those state-
ments may only be considered for their value, if any, in
determining the defendant’s motive in committing the
alleged crimes.
“These statements may be considered only if the jury
has first determined that defendant is, in fact, the person
involved in the alleged crimes.”
Additionally, during defendant’s trial, M testified at
trial that she could not identify her attacker, and the state
presented DNA evidence connecting defendant to the scene.
Defendant was convicted on all counts, and he
appealed the resulting judgment.
C. Defendant’s First Appeal
In defendant’s first appeal, we held that the court
committed reversible error in admitting the notes as “non-
character evidence” under OEC 404(3). Id. at 249, 258. We
explained that
“a crucial difference between permissible motive-based
reasoning and a character-based theory of motive is that
the former assumes that a motive might exist because
any person might possess one under those specific circum-
stances. The tendency to have such a motive is simply
human; it does not derive from a trait of character specific
to the person involved in the trial. By contrast, character-
based reasoning is based on inferred behavioral disposi-
tion or propensities, and it relies upon a chain of inferences
that employs the evidence to establish that the person (1) is
more inclined to act or think in a given way than is typical,
and (2) is therefore more likely to have acted or thought
that way on a particular occasion.”
Id. at 252-53 (internal quotation marks, citations, and
brackets omitted; emphases in Davis).
We further explained that the state’s theory of
admissibility was that defendant “was generally interested
in having rough, nonconsensual sex with women he did not
know, and that interest logically makes it more likely that
Cite as 319 Or App 737 (2022) 743
defendant intended to have sexual contact with M, a female
stranger, when he attacked her.” Id. at 254-55 (internal
quotation marks omitted). We determined that “the chain
of inferences relied upon by the state [to establish the rel-
evance of the notes] necessarily requires character-based
reasoning,” because unless “one infers from the notes that
defendant is more inclined to act or think in a sexually vio-
lent way than is typical the notes do not have any tendency
to establish defendant’s specific intent when he attacked M
because nothing about the attack actually confirms that it
is connected to the notes or their content.” Id. at 255 (inter-
nal quotation marks and citation omitted). Thus, the notes
were not admissible “as noncharacter evidence of ‘motive’ ”
under OEC 404(3). Id. at 246; see also State v. Skillicorn,
367 Or 464, 476, 479 P3d 254 (2021) (“If the proponent’s the-
ory of relevance requires the factfinder to employ propensity
reasoning, then the trial court cannot admit the evidence
based on that theory under OEC 404(3). Evidence is barred
by OEC 404(3) if the chain of logical relevance connecting
the evidence to the fact it is proffered to prove relies on an
inference relating to a person’s character or propensities.”
(Internal quotation marks, brackets, and citation omitted.)).
We remanded the case for the trial court to deter-
mine, based on the arguments that the state might put
forth at that point, whether the evidence was relevant, and
if so, to conduct OEC 403 balancing to determine if it was
admissible.
Additionally, during defendant’s first appeal, we
rejected an argument by the state that any error in admit-
ting the notes was harmless. We explained, with regard
to defendant’s conviction for attempted first-degree sexual
abuse that the notes “were qualitatively different from the
rest of the state’s evidence, as they were the only evidence
of an unquestionably sexual nature relied upon by the state
to prove that defendant intended to subject M to sexual
contact.” Davis, 290 Or App at 258. With regard to defen-
dant’s convictions for assault and kidnapping, we explained
that “we cannot conclude that there was little likelihood
of the error affecting the verdict” because “the state also
relied on the notes as demonstrating defendant’s motive for
744 State v. Davis
committing those crimes, a central issue in the case.” Id.Moreover, we explained that the content of the notes was
“extremely graphic and inflammatory.” Id.D. Remand
On remand, the trial court stated that it understood
that the case had been remanded for it to consider whether
“the notes are admissible as character evidence” and that
that analysis is under OEC 404(4) and OEC 403. The parties
provided written memoranda, and the court held a hearing.
The state, relying on State v. Williams, 357 Or 1,
346 P3d 455 (2015), argued that the evidence was relevant
because the notes showed that defendant had a general
interest in violent, nonconsensual sex with female strang-
ers, which logically made it more likely that he intended
to have sexual contact with M, a female stranger, when he
attacked her. The state further contended that the evidence
had at least a tendency to make the existence of a fact of
consequence to the determination of the action—here, defen-
dant’s culpable mental state—more probable. The state also
argued that OEC 403 did not require exclusion of the evi-
dence, and that a new trial was not necessary. The state
moved for reinstatement of the original judgment.
Defendant responded that the notes were not admis-
sible under OEC 404(4) “as they lack relevancy to the issues
in this case.” Defendant further argued that, even if they
were relevant, the notes should nevertheless be excluded
under OEC 403 because the risk of unfair prejudice sub-
stantially outweighed any probative value of the evidence.
The trial court ruled that the notes evidence was
admissible under OEC 404(4), explaining:
“It’s admissible to explain the defendant’s purpose or
motive for attacking the victim; [it] gives rise to reasonable
inference, which is a general interest in violent, noncon-
sensual sex with women he does not know; and relevant to
explain purpose or motive for the attack.
“There is a general interest in nonconsensual sex with
females that are strangers, which is probative of whether
defendant intended to have sexual contact with the victim
when he attacked her on this occasion. That inference of a
Cite as 319 Or App 737 (2022) 745
peculiar sexual interest in nonconsensual sex with female
strangers is probative of that general interest to prove
he was acting in conformity with that interest when he
attacked the victim in the instant case.”
The court also ruled that the probative value of the
notes outweighed any unfair prejudice under OEC 403, and
stated that, if there was a new trial, it would give the same
limiting instruction regarding the jury’s use of the notes
that it gave during the initial trial—e.g., the evidence could
be considered only for its relevance to defendant’s motive
for attacking M, and only after the jury “first determined
that defendant is, in fact, the person involved in the alleged
crimes.” It then granted the state’s motion to reinstate the
judgement.
Defendant again appeals.
II. ANALYSIS
As noted above, in this appeal, defendant argues,
among other points, that the trial court erred under OEC
403 in determining that the probative value of the notes out-
weighed the substantial risk of unfair prejudice that they
created.3 In particular, defendant highlights that the notes
did not “threaten nonconsensual physical attack” and that
defendant did not “engage in any conduct like that described
in the notes during the crime charged—he removed no cloth-
ing, and touched no sexually intimate parts in any way.”
3
On appeal, defendant argues also that “in non-child-sex cases, due pro-
cess does not permit the introduction of propensity-only evidence merely to prove
propensity,” a concept that defendant terms “the propensity rule.” The Supreme
Court “has suggested, but not yet decided, that the federal constitution may, as a
matter of law, prohibit the admission of other acts evidence to prove propensity in
a criminal case in which the defendant is charged with crimes other than child
sexual abuse.” State v. Baughman, 361 Or 386, 403 n 8, 393 P3d 1132 (2017).
For two reasons, we do not address defendant’s due process argument con-
cerning the admission of propensity evidence in non-child-sex abuse cases, which
we understand to be premised on the Due Process Clause of the United States
Constitution. First, it is unnecessary because we conclude that the trial court
erred in its OEC 403 analysis in this case. Second, defendant did not preserve
that argument.
We also note that, on appeal, we do not understand defendant to argue that
the notes were inadmissible because they were irrelevant. See OEC 404(4) (pro-
viding that, in criminal actions, “evidence of other crimes, wrongs or acts by the
defendant is admissible if relevant except as otherwise provided by” certain rules
of evidence, and the state and federal constitutions (emphasis added)).
746 State v. Davis
The state disagrees. In the state’s view, the trial
court properly exercised its discretion to admit the evidence
over defendant’s OEC 403 objection. In so arguing, the state
contends that “the note evidence had a sufficient logical con-
nection to the charged sex offense with the inference it pro-
vided of defendant’s peculiar sexual interest, which in turn
could explain his attack on M (i.e., he intended to subject
her to sexual contact),” and that “defendant’s repeated acts
relating to the notes occurred within a short period prior to
the charged offense.” The state also posits that the state had
a “particularly acute need for the evidence.”
“We review for abuse of discretion a trial court’s
determination under OEC 403 that the probative value of
proffered evidence is not substantially outweighed by the
danger of unfair prejudice.” State v. Terry, 309 Or App 459,
461, 482 P3d 105 (2021). “Our role on appeal is to assess
whether the trial court’s decision falls within the range of
legally permissible choices.” State v. Altabef, 313 Or App 240,
246, 493 P3d 1099 (2021).
As explained below, we conclude the trial court
abused its discretion under OEC 403. Although the notes
have some probative value, that probative value is substan-
tially outweighed by the danger of unfair prejudice to defen-
dant. Before turning to our analysis of that issue, for con-
text, we think it helpful to provide a brief overview of the
operation of OEC 404(3), OEC 404(4), and OEC 403, includ-
ing the due-process concerns underlying application of OEC
403 with regard to propensity evidence admitted under OEC
404(4).
“OEC 404(3) makes other acts evidence inadmissi-
ble to prove a defendant’s character or propensity to commit
the charged crime.” Baughman, 361 Or at 390-391 (empha-
sis in original). It provides:
“Evidence of other crimes, wrongs or acts is not admissi-
ble 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.”
OEC 404(3).
Cite as 319 Or App 737 (2022) 747
OEC 404(4) was enacted after OEC 404(3). “It
makes relevant other acts evidence admissible in criminal
actions, subject to specified exceptions.” Baughman, 361 Or
at 391 (emphasis in original). It provides:
“In criminal actions, evidence of other crimes, wrongs
or acts by the defendant is admissible if relevant except as
otherwise provided by:
“(a) [OEC 406 through 412] and, to the extent
required by the United States Constitution or the Oregon
Constitution, [OEC 403];
“(b) The rules of evidence relating to privilege and
hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
In Williams, “the court recognized the conflict
between those two rules and held that the ‘legislature
intended OEC 404(4) to supersede OEC 404(3) in criminal
cases,’ and to permit the admission of other acts evidence to
prove a defendant’s propensity to commit a charged crime of
sexual abuse.” Baughman, 361 Or at 391 (quoting Williams,
357 Or at 15). The admission of such evidence is, however,
“subject to specified evidentiary rules, including OEC 403.”
Id. OEC 403 permits a court to exclude relevant evidence if
its probative value is substantially outweighed by the dan-
ger of unfair prejudice. It provides:
“Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay or needless pre-
sentation of cumulative evidence.”
OEC 403.
Under OEC 403, the “probative value of evidence
refers to the ‘measure of persuasiveness that attaches to a
piece of evidence.’ ” State v. Moles, 295 Or App 606, 614, 435
P3d 782 (2019), rev’d on other grounds, 366 Or 549 (2020)
(quoting State v. Lawson, 352 Or 724, 757, 291 P3d 673
(2012)). Or, “ ‘[p]ut another way, it is the strength of the rela-
tionship between the proffered evidence and the proposition
748 State v. Davis
sought to be proved.’ ” Id. (quoting State v. Sewell, 257 Or App
462, 469, 307 P3d 464, rev den, 354 Or 389 (2013); brackets
in Moles). “On the other side of the scale, ‘[t]he critical
inquiry in determining whether evidence is unfairly prej-
udicial is whether the evidence improperly appeals to the
preferences of the trier of fact for reasons that are unrelated
to the power of the evidence to establish a material fact.’ ”
Id. (quoting Sewell, 257 Or App at 469; brackets in Moles).
Evidentiary determinations under OEC 403 “must be made
on a case-by-case basis.” Williams, 357 Or at 20.
The Supreme Court has highlighted that balancing
under OEC 403 is not “devoid of due process considerations.”
Baughman, 361 Or at 402.4 Indeed, OEC 403 balancing is
required by the Due Process Clause to “ensure that the
admission of ‘other acts’ evidence is not unfairly prejudi-
cial and a violation of ‘fundamental concepts of justice.’ ”
Williams, 357 Or at 18. Balancing under OEC 403 precludes
“the admission of ‘concededly relevant evidence’ that has
the capacity ‘to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.’ ”
Id. at 402-03 (quoting Old Chief v. United States, 519 US 172,
180, 117 SCt 644, 136 L Ed 2d 574 (1997)). And, as we have
noted, “other acts” evidence, in particular, “has the capac-
ity ‘to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.’ ” Moles,
295 Or App at 614 (quoting Baughman, 361 Or at 402-03).
Moreover, we have highlighted that “evidence of uncharged
sexual misconduct in a prosecution for sex crimes” presents
a “due-process-jeopardizing danger of unfair prejudice” and
has an “inflammatory nature.” Terry, 309 Or App at 465.
Such evidence is, in other words, particularly pernicious.
Our Supreme Court has also opined on the “numer-
ous harmful effects” of other acts evidence when introduced
as propensity evidence, as the notes were in this case.
Skillicorn, 367 Or at 478. Such evidence can “(1) impair the
opposing party’s ability to present its case; (2) distract and
confuse the factfinder; (3) prejudice the factfinder against
4
Separate and apart from balancing under OEC 403, under OEC 404(4)(d),
“trial courts also must exclude evidence, as a matter of law, that would render a
trial fundamentally unfair and violate the Due Process Clause.” Baughman, 361
Or at 402.
Cite as 319 Or App 737 (2022) 749
a person; and (4) result in verdicts based on erroneous
assumptions.” Id.The due process concerns regarding the admission
of other acts evidence to prove propensity are sufficiently
severe that the Oregon Supreme Court has “suggested, but
not yet decided, that the federal constitution”—and, specif-
ically, the Due Process Clause—“may, as a matter of law,
prohibit the admission of other acts evidence to prove pro-
pensity in a criminal case in which the defendant is charged
with crimes other than child sexual abuse.” Baughman, 361
Or at 403 n 8; see Skillicorn, 367 Or at 476 n 2 (“[I]n cases
involving crimes other than child sexual abuse, the Due
Process Clause might prohibit ‘the admission of other acts
evidence to prove propensity.’ ” (Quoting Williams, 357 Or at
17; some internal quotation marks omitted.)). The admission
of other acts evidence in a prosecution for child sexual abuse
might be treated differently than the admission of other
acts evidence in the prosecution of other crimes under the
Due Process Clause due to differences in historical practice.
Williams, 357 Or at 17 (“If this were a case in which defen-
dant had been charged with crimes other than child sexual
abuse, we might be persuaded that due process incorporates
that historical practice and therefore not only requires the
application of OEC 403, but also precludes the admission of
‘other acts’ evidence to prove propensity. However, in this
case, defendant is charged [with] child sexual abuse, and
the historical practice with respect to such charges is not as
clear.”).
Recognizing the inflammatory nature of uncharged
evidence of sexual misconduct in a prosecution for sex
crimes, in United States v. LeMay, 260 F3d 1018, 1028 (9th
Cir 2001), cert den, 534 US 1166 (2002), the Ninth Circuit
identified five nonexclusive factors to guide a court’s exer-
cise of discretion in determining whether to admit such evi-
dence. We have considered such factors in reviewing a trial
court’s exercise of discretion under OEC 403 in the context
of child sexual abuse cases. Terry, 309 Or App at 465; see
also Moles, 295 Or App at 616 (describing the LeMay factors
as “a helpful guide for trial courts applying OEC 403 to bal-
ance the probative value and unfair prejudice of other acts
evidence in a child sexual abuse case”). The LeMay factors
750 State v. Davis
are “(1) the similarity of the uncharged misconduct; (2) the
temporal proximity of the uncharged acts to the charged
acts; (3) the frequency of the prior acts; (4) the existence or
nonexistence of intervening circumstances; and (5) the need
for the evidence in addition to the testimony.” Terry, 309 Or
App at 465.
With that background, we turn our analysis to the
question of whether the trial court abused its discretion
under OEC 403 when it admitted notes evidence.
We begin by examining the probative value of the
notes. As stated above, the trial court admitted the notes
under OEC 404(4) to demonstrate that defendant has a “a
general interest in violent, nonconsensual sex with women
he does not know” and to “explain purpose or motive for the
attack.” That is, the notes were admitted to show that defen-
dant was “acting in conformity with that interest when he
attacked the victim in the instant case.”
We agree with the state and the trial court that
the notes were relevant to demonstrate that, if defendant
attacked the victim, he intended to subject the victim to sex-
ual contact by means of forcible compulsion, which was a
fact of consequence in the state’s prosecution of defendant.
See OEC 401 (“ ‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence.”);
ORS 163.427(1) (“A person commits the crime of sexual
abuse in the first degree when that person * * * [s]ubjects
another person to sexual contact and * * * [t]he victim is sub-
jected to forcible compulsion by the actor.”); ORS 161.405(1)
(“A person is guilty of an attempt to commit a crime when
the person intentionally engages in conduct which consti-
tutes a substantial step toward commission of the crime.”);
see also, e.g., Terry, 309 Or App at 464-65 (in the context of
a prosecution for first-degree sexual abuse of a 15-year-old,
concluding that evidence of the defendant’s prior conviction
for one count of attempted unlawful sexual penetration of a
10-year-old relative and the defendant’s statements about
attraction to 10- to 13-year-old girls were admissible under
OEC 403 and OEC 404(4) to show “defendant had the intent
Cite as 319 Or App 737 (2022) 751
to touch the victim sexually” and that “it was not, in fact, an
accident”).
Further, consideration of the LaMay factors, as a
whole, demonstrate the probative value of the notes on that
point.
We first consider the similarity of the uncharged
misconduct with the charged conduct. There is, at least on
a general level, similarity between what the state sought
to prove and the uncharged misconduct: The state’s theory
was that defendant was attempting to subject M to a violent
sexual act when he attacked her and, in the notes, defen-
dant described “a desire to engage in violent sexual acts.”
Davis, 290 Or App at 246. But there is dissimilarity between
the conduct described in the notes and the conduct the state
sought to prove defendant attempted to engage in: As defen-
dant points out, the notes did not “threaten nonconsen-
sual physical attack” and defendant did not “engage in any
conduct like that described in the notes during the crime
charged.” Moreover, the state’s theory of relevance required
the factfinder to infer that the notes actually relayed defen-
dant’s sexual desires instead of inferring that defendant
placed those notes for some other, nonsexual purpose—for
example, to harass, threaten, or intimidate. Nevertheless,
we think there is a relationship between the proffered evi-
dence (describing a desire to engage in violent sexual acts
with strangers) and the proposition sought to be proved
(that if defendant was the person who engaged in violent
conduct toward M, he did so intending to subject M to sex-
ual contact).
The other LeMay factors also suggest the notes had
probative value. The temporal proximity of the uncharged
acts to the charged acts seemingly militates towards admis-
sibility: The notes were placed just 10 days and two months,
respectively, before the charged acts. Cf. LeMay, 260 F3d
at 1029 (“About eleven years had passed between LeMay’s
abuse of his nieces and his trial for the abuse of D. R. and
A. R. We have held, in the context of Rule 404(b), that the
lapse of twelve years does not render the decision to admit rel-
evant evidence of similar prior acts an abuse of discretion.”).
The frequency of the prior acts factor also, perhaps, militates
752 State v. Davis
towards admissibility. There was evidence that defendant
left notes on strangers’ cars on two occasions; that is, it was
not an “isolated occurrence.” Id. at 1029. The LeMay factor
concerning the existence or nonexistence of intervening cir-
cumstances does not appear to have relevance here. And,
finally, the state had a need for the evidence in addition to
the testimony it presented. As we highlighted during defen-
dant’s first appeal, the notes were “qualitatively different
from the rest of the state’s evidence, as they were the only
evidence of an unquestionably sexual nature relied upon by
the state to prove that defendant intended to subject M to
sexual contact.” Davis, 290 Or App at 258.
Consideration of the LeMay factors, as a whole, leads
to the conclusion that the notes are, concededly, probative.
Nevertheless, particularly in view of the Supreme Court’s
cautionary words in Baughman, 361 Or at 403 n 8—viz.,
“that the federal constitution may, as a matter of law, pro-
hibit the admission of other acts evidence to prove propensity
in a criminal case in which the defendant is charged with
crimes other than child sexual abuse”—we conclude that it
was an abuse of discretion for the trial court to determine
under OEC 403 that the probative value of the notes was not
substantially outweighed by the danger of unfair prejudice.
That is because, in this case, the notes had the capacity “ ‘to
lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged.’ ” Moles, 295 Or
App at 614 (quoting Baughman, 361 Or at 402-03).
As we previously observed during defendant’s first
appeal, “the content of the notes is extremely graphic and
inflammatory.” Davis, 290 Or App at 258. That gives rise to
the risk that the jury would convict defendant not because
defendant engaged in the charged conduct, but, instead,
because the jury believed that defendant serially engaged in
threatening conduct toward female strangers—something
for which he was not on trial in this case. See, e.g., Terry, 309
Or App at 465-66 (in the context of a prosecution for first-
degree sexual abuse of a 15-year-old, concluding evidence of
defendant’s “admissions in therapy about becoming aroused
when changing his daughter’s diaper and touching her vag-
inal area” was inadmissible under OEC 403 because, among
other reasons, “[t]he evidence is highly inflammatory, giving
Cite as 319 Or App 737 (2022) 753
rise to the risk of the jury convicting not because defendant
engaged in the charged conduct but, instead, because he
posed a risk to babies—something he was not on trial for
in this case”). As noted above, that is one of the problematic
features of other acts evidence offered to prove propensity:
It can “prejudice the factfinder against a person.” Skillicorn,
367 Or at 478.
Moreover, as we detailed in defendant’s first appeal,
the notes evidence provided a motive for all of the charged
conduct, which is why we concluded that its admission was
not harmless with regard defendant’s convictions for assault
and kidnapping, notwithstanding the trial court’s limit-
ing instruction. We concluded that, given the nature of the
evidence, a factfinder would potentially consider the notes
evidence not only to determine that, if defendant commit-
ted conduct toward M, he did so with an intent to subject
her to sexual contact (i.e., the purpose for which the notes
were admitted), but also to establish that defendant, in fact,
engaged in conduct constituting kidnapping and assault.
That is problematic, given the dissimilarity between the
conduct of kidnapping and assault, on the one hand, and
the act of placing the notes and the conduct described in
the notes, on the other. In our view, the notes had the poten-
tial to improperly appeal to the “preferences of the trier of
fact for reasons that are unrelated to the power of the evi-
dence to establish [the] material fact” for which they were
admitted in this case. Moles, 295 Or App at 614 (internal
quotation marks omitted). Or, put another way, here, given
the extremely “inflammatory nature” of the notes, we think
the uncharged evidence of sexual misconduct presented a
“due-process-jeopardizing danger of unfair prejudice.” Terry,
309 Or App at 465.
Consequently, notwithstanding their probative value,
we conclude that the trial court abused its discretion when
admitting the notes.5
5
The dissent in this case is well written. Like many well-written opinions,
it grabs the reader’s attention in the very first sentence. It does so by highlight-
ing the graphic and inflammatory language in the two notes left by defendant:
“Defendant left notes on the cars of two complete strangers telling them in
graphic terms how much he loved their ‘bubble-butts’ and wanted to engage in
anal sex while they ‘cry, scream, groan and moan and grunt with pain.’ ” 319 Or
App at 754 (Armstrong, J., dissenting).
754 State v. Davis
III. CONCLUSION
As explained above, the other acts evidence in this
case undoubtedly had probative value. However, as also
explained above, the probative value of that evidence was
substantially outweighed by the danger of unfair prejudice.
Consequently, we reverse and remand.
Reversed and remanded.
ARMSTRONG, S. J., dissenting.
Defendant left notes on the cars of two complete
strangers telling them in graphic terms how much he loved
their “bubble-butts” and wanted to engage in anal sex with
them while they “cry, scream, groan and moan and grunt
with pain.” Then, according to the state, 10 days after he left
the second note, he tackled a complete stranger who was jog-
ging and dragged and put her face down in a ditch; the vic-
tim was able to flip herself over and fight off defendant. This
will be the second time that we have said that the notes left
on the cars were erroneously admitted as evidence of what
defendant intended to do to the victim when he assaulted
her, had she not fought him off. And, in my opinion, we will
have been wrong both times.
In our earlier opinion, we reasoned that the state’s
“motive” or “specific intent” theory for admission of the evi-
dence depended on a propensity inference:
“[T]he chain of inferences relied upon by the state neces-
sarily requires character-based reasoning. * * * [T]o con-
clude that the same motive that drove defendant to leave
sexual notes for two female strangers also induced him
to sexually assault a third person on a different occasion,
one must draw the intermediate inference that the desire
expressed in the notes was not personal to the recipients
but, rather, was reflective of a general desire for violent sex-
ual gratification. That inference depends upon the existence
of a persistent trait intrinsic to defendant: that defendant
has an interest in sexually assaulting any female stranger
But it is that same graphic and inflammatory language that, in our view,
causes a danger of unfair prejudice to defendant. Just as that language grabs
and haunts a reader, it too might grab and haunt a juror, and “lure [a juror] into
declaring guilt on a ground different from proof specific to the offense charged.”
Moles, 295 Or App at 614 (internal quotation marks omitted).
Cite as 319 Or App 737 (2022) 755
and that that interest persists in varying situations through-
out life. Thus, the state’s theory of relevancy depended upon
character-based reasoning, and the trial court therefore erred
by admitting the evidence for a non-character purpose.”
State v. Davis, 290 Or App 244, 255, 414 P3d 887 (2018)
(Davis I) (emphasis altered; internal citation and quotation
marks omitted).
In my view, we made that sequence of inferences too
complicated. A jury could infer defendant’s intention to make
the victim he dragged face down into the ditch scream from
pain from anal sex not because of a “persistent trait” they
inferred from the notes but because that’s what the notes said
he wanted to do to a stranger. The notes were direct evidence
that defendant wanted to make a complete stranger “cry,
scream, groan and moan and grunt with pain.” The notes
may have been “prior bad acts,” but they were also expres-
sions by defendant of exactly what he wanted to do sexually
with strangers around the time that the state claims that
he assaulted a stranger and dragged her face down into a
ditch. See State v. Turnidge, 359 Or 364, 452-53, 374 P3d
853 (2016) (holding that the defendant’s “anti-establishment
views and, more particularly, his negative views toward law
enforcement,” supplied “evidence of his motive for his partic-
ipation in the ultimate explosion that killed and injured law
enforcement officers,” and that “[t]he inference that defen-
dant’s actions were motivated by his beliefs was a logical one
on this record”).
I appreciate that we are bound by our decision in
Davis I, which resulted in the notes being treated as “pro-
pensity” evidence and weighed as such on remand. But I
am not willing to compound our original mistake by now
reversing the trial court’s rebalancing that it undertook on
remand under OEC 403.
In State v. Williams, 357 Or 1, 346 P3d 455 (2015),
our Supreme Court recognized that evidence of a defen-
dant’s sexual purpose can have probative value that is dis-
tinct from merely inviting the jury to convict a defendant
based on the defendant’s character and propensity to act
accordingly:
756 State v. Davis
“[T]here is a slim but distinct difference between using the
underwear evidence to establish defendant’s character and
propensity to act accordingly, and offering that evidence to
establish defendant’s sexual purpose. First, in this case,
defendant’s sexual purpose is an element of the charged
crimes. The state did not offer the evidence to establish
that defendant committed the charged acts; it offered
the evidence to prove an element of the charged crimes—
defendant’s sexual purpose. Second, the state was required
to prove that defendant had acted with a sexual desire that
was aroused or gratified by contact with children. Because
most adults do not have such a desire, the state was entitled
to prove that defendant is an adult who does. The fact that
defendant has a sexual interest in children would not, alone,
establish that defendant acted on that interest in the charged
circumstances, but it is a fact that is logically relevant to that
issue.”
357 Or at 23 (emphasis added).1
Williams also recognized that, under Dowling v.
United States, 493 US 342, 352-53, 110 S Ct 668, 107 L Ed
2d 708 (1990), “an evidentiary rule—such as OEC 403—that
requires a trial court to determine whether the potential
prejudice of ‘other acts’ evidence outweighs its probative
value is sufficient to safeguard a litigant’s due process rights.”
1
In State v. Cave, 298 Or App 30, 42 n 9, 445 P3d 364 (2019), we noted that
“[w]hether evidence establishing a defendant’s sexual purpose toward a child is
propensity or nonpropensity evidence is a question that has not yet been resolved
by the Supreme Court, and it is the subject of significant confusion,” pointing out
seemingly inconsistent parts of Williams. Later, in State v. Levasseur, we deter-
mined that the “state’s theory of admissibility required the jury to infer from
defendant’s prior crimes that he has a propensity to assault women for sexual
purposes, and that he acted in conformity with that propensity in this case. That
is propensity-based reasoning.” 309 Or App 745, 753, 483 P3d 1167, opinion clari-
fied, 312 Or App 733, 489 P3d 630, rev den, 368 Or 788 (2021). For purposes of my
analysis, I assume (consistently with Davis I) that the notes would be admissible
only under OEC 404(4), without wading into the morass of distinctions between
character, propensity, and sexual purpose. Accord State v. Martinez, 315 Or App
48, 55, 499 P3d 856 (2021) (“[T]he state acknowledges that defendant’s abuse of
C was ‘propensity evidence,’ in the sense that ‘it was offered to support an inter-
mediate inference that defendant had a sexual interest in children, which in turn
was relevant to the jury’s determination whether he possessed the requisite cul-
pable mental state for the charged offense.’ ”); see generally State v. Jackson, 368
Or 705, 735, 498 P3d 788 (2021) (Garrett, J., concurring) (pointing out that the
Supreme Court “like many others—has used the word ‘character’ interchange-
ably with ‘propensity.’ The two terms have been equated to the point that we have
routinely described OEC 404(3) as prohibiting ‘propensity evidence,’ even though
that is not what the rule says.”).
Cite as 319 Or App 737 (2022) 757
357 Or at 17 (emphasis added). Williams then described the
“spectrum” of balancing that occurs under OEC 403:
“At one end of the spectrum, ‘other acts’ evidence that is
offered for nonpropensity purposes—i.e., to prove motive,
intent, identity, or lack of mistake or accident—generally
will be admissible as long as the particular facts of the case
do not demonstrate a risk of unfair prejudice that outweighs
the probative value of the evidence. * * * At the other end of
the spectrum, as the state recognizes, when ‘other acts’ evi-
dence ‘goes only to character and there are no permissible
inferences the jury may draw from it,’ it is more likely that
the evidence will be excluded. Such evidence generally will
have little or no cognizable probative value, and the risk
that the jury may conclude improperly that the defendant
had acted in accordance with past acts on the occasion of
the charged crime will be substantial.”
Id. at 19-20 (emphasis in Williams).
Although the issues on appeal in Williams did not
require the court to address the trial court’s OEC 403 bal-
ancing of the sexual-purpose evidence in that case, the court
did cite with approval the Ninth Circuit’s decision in United
States v. LeMay, 260 F3d 1018 (9th Cir 2001). We have
since expounded on that citation. See State v. Moles, 295
Or App 606, 615, 435 P3d 782, rev den, 365 Or 194 (2019),
rev allowed and rev’d in part on other grounds, 366 Or 549(2020). In Moles, we explained that “LeMay is one of the sem-
inal cases on the question of FRE 403 balancing in the con-
text of prior acts of sexual abuse.” 295 Or App at 615. LeMay
identified a number of nonexclusive factors to guide a court’s
exercise of discretion in determining whether to admit evi-
dence of uncharged sexual misconduct in a prosecution
for sex crimes, given the dangers of unfair prejudice that
the evidence presents: (1) the similarity of the uncharged
misconduct; (2) the temporal proximity of the uncharged
acts to the charged acts; (3) the frequency of the prior acts;
(4) the existence or nonexistence of intervening circum-
stances; and (5) the need for the evidence beyond what was
otherwise offered. 260 F3d at 1028.
Our decision in Moles expressly endorsed those fac-
tors as “a helpful guide for trial courts applying OEC 403
to balance the probative value and unfair prejudice of other
758 State v. Davis
acts evidence in a child sexual abuse case.” 295 Or App
615. And, we ultimately affirmed the trial court’s decision
in that case to admit the evidence to show sexual purpose.
We appreciated that the court’s balancing, “even if different
from how this court might ultimately have resolved the bal-
ancing question in the first instance—represents a permis-
sible exercise of the court’s discretion under the totality of
the circumstances in this case.” Id. at 620; see also State v.
Terry, 309 Or App 459, 465, 482 P3d 105 (2021) (reaching a
similar conclusion).
In my view, in light of Williams and our cases apply-
ing the LeMay factors, the trial court acted well within its
permissible range of discretion in determining that the pro-
bative value of the notes was not substantially outweighed
by the risk of unfair prejudice to defendant. The sexual-
purpose theory in this case is not meaningfully distinguish-
able from the one that Williams recognized as having pro-
bative value. In Williams, the court observed that the state
needed to prove that the defendant had acted with a sexual
desire toward children and that, “[b]ecause most adults do
not have such a desire, the state was entitled to prove that
defendant is an adult who does.” 357 Or at 23. The same can
be said here: The state’s theory was that defendant acted on
a desire to have forcible anal sex with a complete stranger;
because most adults do not have that desire, the state was
entitled to prove that defendant is not only someone who has
a desire to inflict pain on a complete stranger through anal
sex, but that he had explicitly expressed that exact desire in
the notes that he had left on the cars of strangers.
The temporal proximity of the notes to the charged
act also supports the trial court’s decision. The first note was
left a few months before the assault; the second was left only
10 days before the assault. Thus, even assuming that the
notes did not meet the legal requirements for a nonpropen-
sity theory of motive, they had probative value to show defen-
dant’s sexual desire to inflict pain on complete strangers—
and his lack of any boundaries pursuing that desire—in the
same general time frame as the assault of the victim. And
there were two notes left at different times, so it was not
an isolated occurrence. See LeMay, 260 F3d at 1029 (“[T]hat
there was evidence of a third similar incident suggests that
Cite as 319 Or App 737 (2022) 759
LeMay’s abuse of his cousins in 1989 was not an isolated
occurrence.”). Moreover, because the victim fought off defen-
dant, the state had no better way of proving what defendant
ultimately intended to do to her, which was a necessary ele-
ment of the charge of attempted sexual abuse.
In my view, the two notes that defendant left,
describing the pain from anal sex that he wanted to cause
a complete stranger, are highly probative of what defendant
intended when he later tackled a complete stranger and
dragged her into a position in the bushes where he could
anally sodomize her. That is true whether or not propensity-
type inferences are involved in the chain of reasoning,
because they are not purely character-based inferences. See
Moles, 295 Or App at 618 & n 5 (explaining that, for pur-
poses of balancing, sexual-purpose evidence has probative
value that is distinct from evidence that “goes only to char-
acter and there are no permissible inferences the jury may
draw from it” (emphasis omitted)).
Although the majority agrees that the notes had
probative value in showing defendant’s sexual purpose, it
nevertheless concludes that such value was substantially
outweighed by the risk that the notes would “lure the fact-
finder into declaring guilt on a ground different from proof
specific to the offense charged.” 319 Or App at 752 (internal
quotation marks omitted). But that discounts the role of a
limiting instruction in a case like this. In Terry, we held
that the trial court had not abused its discretion in admit-
ting evidence of defendant’s prior conviction for unlawful
sexual penetration of a 10-year-old relative, his statement
about the circumstances underlying that conviction (includ-
ing “it’s possible my penis touched her. Yes, it’s possible my
semen could be on her”), and his statement admitting his
attraction to 10- to 13-year-old girls. We explained that
that potentially inflammatory evidence “could be addressed
through a limiting instruction, something the trial court
offered, although it appears that no party requested that
one be delivered.” Terry, 309 Or App at 465.
I fail to see why that is not true here. The state
sought and the trial court delivered an instruction that
the notes “may only be considered for their value, if any,
760 State v. Davis
in determining the defendant’s motive in committing the
alleged crimes. These statements may be considered only if
the jury has first determined that defendant is, in fact, the
person involved in the alleged crimes.” Again, even assum-
ing that the evidence did not meet the standard for a nonpro-
pensity motive theory, it had probative value for determin-
ing whether defendant’s attack was motivated by a desire
to sexually assault the victim; the limiting instruction, as
it would have been understood by the jury, reduced the risk
that the jurors would use the evidence for a purpose other
than that.
Yes, the content of the notes was highly prejudi-
cial, and their admission created some risk that the jury
would make a judgment about defendant’s character—but
more dangerously so than a history of sexually assaulting
10-year-old children, viz., the evidence whose admission
we upheld in Terry? As the majority notes, our Supreme
Court has suggested on multiple occasions that child sex-
ual abuse might somehow be different from other sexual-
purpose cases, but the historical underpinnings of that
assertion and its logical basis are not entirely clear to me.2
Until the United States Supreme Court or our Supreme
Court announces that bright line rule, I do not see a basis
to treat the prejudicial effect of sexual-purpose evidence as
categorically different under OEC 403. Here, given the sig-
nificant probative value of the evidence to show the sexual
motive for the attack, as well as the availability of a limiting
2
On that point, it is worth noting that, despite the fact that Williams focused
on the historical practice as it relates to child sexual abuse, the sources on which
Williams relied for that proposition, including LeMay, are not so limited; they
addressed prior sexual misconduct more generally. See Williams, 357 Or at 17
n 16 (“In LeMay, the court observed that, ‘[i]n many American jurisdictions, evi-
dence of a defendant’s prior acts of sexual misconduct is commonly admitted in
prosecutions for offenses such as rape, incest, adultery, and child molestation’ by
‘stretching traditional 404(b) exceptions to the ban on character evidence or by
resorting to the so-called “lustful disposition” exception.’ Id. Accordingly, the court
also concluded that “ “the history of evidentiary rules regarding a criminal defen-
dant’s sexual propensities is ambiguous at best, particularly with regard to sexual
abuse of children.” ” Id. at 1026 (quoting United States v. Castillo, 140 F3d 874,
881 (10th Cir 1998)).” (Emphases added.)) And Williams itself recognized that the
United States Supreme Court has “explicitly reserved the question whether an
evidentiary rule would violate due process if it permitted the use of ‘prior crimes’
evidence to prove a defendant’s propensity to commit a charged crime.” 357 Or at16-17 (citing Estelle v. McGuire, 502 US 62, 75 n 5, 112 S Ct 475, 116 L Ed 2d 385(1991)).
Cite as 319 Or App 737 (2022) 761
instruction that would focus the jury’s use of the evidence
on that specific issue, I would conclude that the trial court
acted within its discretion in ruling that the probative value
of the notes, in light of the state’s need for the evidence, was
not substantially outweighed by a risk of unfair prejudice to
defendant. I therefore dissent.3
3
Defendant advances additional arguments that I would reject and do not
see a benefit to discussing.