State v. MOMENI

EDMONDS, S. J.

Defendant appeals a judgment of conviction for two counts of sexual abuse in the second degree, ORS 163.425 (2005), and one count of sexual abuse in the third degree, ORS 163.415 (2005).¹ On appeal, he makes two assignments of error regarding the admission of testimony of two witnesses, R and K, regarding the circumstances of their encounters with defendant. We affirm.

Defendant was the landlord of an apartment complex, and B, the victim in this case, was a tenant who lived in the complex. At trial, B testified that, in December 2005, she was late in paying her rent, and after being served a notice of eviction by defendant, she went to his office to discuss the circumstances of her tenancy. According to B, when she entered defendant’s office, he locked the door behind her and began asking her personal questions about her husband and children. Defendant also complimented her on her smile. B attempted to redirect the conversation, but defendant asked for a hug. B complied with defendant’s request and walked over to give him a hug. However, defendant then engaged in sexual activity with B after which he informed her, “[D]on’t worry. I’m sure everything’s going to be fine with the rent.” B testified that she resisted defendant’s actions by saying “no” and unsuccessfully trying to pull away from him.

Defendant did not dispute that sexual contacts had occurred between him and B. Rather, the issue framed by the parties at trial was whether B consented to defendant’s sexual acts. For example, in his opening statement, defendant argued that B initiated the sexual activity to induce defendant to make favorable arrangements regarding B’s past due rent. In order to refute defendant’s claim that B had consented to defendant’s sexual contacts, the state offered the testimony of K and R. The admission of their testimony, over defendant’s objection, is the source of defendant’s assignments of error on appeal.

K testified as follows: Defendant was K’s landlord between February 2005 and November 2005. K lost her job and was unable to pay her rent. Because she “didn’t have any way of paying the rent,” she asked defendant if she could clean apartments, mow lawns, or to do a similar type of work for him to earn income to pay her rent. Defendant told her that he did not have any jobs, but asked her to stop by after hours to “see what he could do.” K, however, did not respond to defendant’s invitation. Thereafter, on several occasions, defendant stopped by her apartment and left his business card in her door. On one occasion, when she was home, she permitted defendant to enter her apartment. Defendant asked K why she had not stopped by to see him. When K’s boyfriend unexpectedly entered the room and greeted defendant, defendant appeared to be surprised and “set back” by the realization that K was not alone in the apartment. Defendant then left hurriedly.

Later, K stopped by defendant’s office unannounced to again address the subject of her past due rent. As she walked into the office, “he put his hand on my butt and kind of like went ahead and pushed me in there.” Defendant locked the door behind her by turning the deadbolt. He then sat down next to her and placed his hand on the arm of her chair. Kfelt uncomfortable because defendant had positioned himself so close to her. Defendant and K then negotiated over the payment of the past due rent for about 10 minutes and agreed on a payment plan. Defendant then asked for a hug and hugged her “real tight.”

K testified that, prior to the above occasion, defendant had asked for hugs on approximately four other occasions after agreeing to waive late fees on her rent obligations and had then hugged her in a similar manner. According to K, “[i]t was always real tight, and then he’d let me go, and I left.” K characterized defendant’s conduct of asking for hugs initially as “him being friendly,” but

“near the end was when I realized that it’s just not — I don’t — it was creepy. And that was — and that was about the time I moved out. I was, like, ‘I don’t want to be here anymore, Moji.’ And he told me, well, I owe him all this money, and that was the only way that I could move out. So, I borrowed money from my parents and gave it to him, and — so I could get out of there.”

The state’s other witness, R, who was defendant’s tenant between November 2003 and April 2004, testified to the following: On one occasion, she left her apartment to buy pizza, leaving the door unlocked. When she returned, the door was locked. Finding herself locked out of her apartment, R went to defendant’s office to ask for help in unlocking her door. Defendant agreed to help her, and, as he walked with her back to her apartment, he twice placed his hand on her lower back and rubbed it in a circular motion for a couple of seconds. When they arrived at the apartment, defendant unlocked the door and walked into the apartment, purportedly for the purpose of checking for intruders. Defendant asked R when her husband would be returning to the apartment, and R replied that she did not know. Defendant then rubbed her shoulders and hugged her a few more times. Defendant then indicated that he was going to make certain there were no intruders in R’s bedroom. However, while he was just outside the door to the bedroom, he pulled R close for a hug. R believed that defendant was trying to pull her into the bedroom. R also testified that defendant’s hugs were initiated by him and that she had not invited his actions. After defendant left the apartment, R told her husband what had occurred, and they moved out of the apartment.

Defendant objected to the admission of K’s and R’s testimony on the ground that the evidence was inadmissible character or propensity evidence under OEC 404. The state countered that the evidence was probative to rebut defendant’s attack on B’s credibility and to show that she did not consent to his sexual contacts. According to the state, the testimony of K and R demonstrated a pattern of conduct in which defendant had attempted to take advantage of former female tenants by initiating sexual contact with them. The trial court ruled that the evidence was admissible under OEC 404(4). It explained, in part,

“I will note the points of similarity include that the individuals that were involved in the proffered events were all female, younger women. They were alone when the alleged incidents took place. They were tenants of the defendant. The events occurred in the same general location, that is, at the residence and apartment complex. The — there was some discussion regarding about, in similarity, about where their boyfriends or husbands were, their whereabouts at the time that those events were taking place. And they were all in trouble. There was all some kind of trouble going on, and crisis going on at the time that these things were happening.”

On appeal, the parties reiterate their arguments regarding the admissibility of the evidence under OEC 404, which governs the admissibility of uncharged prior misconduct evidence. In particular, 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, identity, or absence of mistake or accident.”

As a general rule, evidence of a defendant’s other crimes, wrongdoing, or bad acts are not admissible in a criminal case to prove the person’s criminal propensity. However, such evidence may be admissible to prove or disprove other facts that are relevant in a case so long as the relevance of the evidence does not ultimately rely on an inference relating to the defendant’s character or propensity. State v. Johnson, 340 Or 319, 338, 131 P3d 173, cert den, 549 US 1079 (2006). OEC 404(3) is an “inclusionary” rule. As the court explained in Johnson,

“That means that, while the rule sets out a list of possible ‘exceptions’ to the general prohibition on prior bad act evidence (‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident’), the rule does not purport to cover every imaginable purpose to which prior bad act evidence might logically and lawfully be applied. Thus, the essential inquiry under OEC 404(3) is not whether the testimony can be made to fit into one of the listed categories, but when and how it is logically relevant to a noncharacter issue in the case.”

340 Or at 338 (citations omitted; emphasis added).

OEC 401 defines “relevant evidence” as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 404(3) does not require the state to demonstrate that the testimony squarely qualifies under one of the listed categories in the statute, or that it demonstrates a distinctive methodology, or even that the uncharged acts closely replicate the crimes that are the subject of the indictment against defendant such as would be required to admit evidence of other wrongful acts in order to prove the identity of the perpetrator. Johnson, 340 Or at 340. Nonetheless,

“any similarity in the circumstances increases the probative value of the prior crime evidence and enhances the argument for admissibility under OEC 404(3). Likewise, the timing of uncharged crimes vis-a-vis the charged crime and the number of instances that are shown may affect the question of admissibility. No categorical rule exists, but timing, repetition, and similarity of both the act and the surrounding circumstances all are important considerations.”

Id.

In support of its argument for admissibility under OEC 404(3), the state points to the following similarities of defendant’s contacts with B, R, and K. All three women were defendant’s tenants during the time that he initiated sexual contact with them, and the contacts all occurred at the same apartment complex within the same general time period. The trial court found that all of the individuals were younger women and by themselves when the incidents took place. Both B and K were behind on their rent when the contacts with defendant occurred. R contacted defendant for assistance because she had been locked out of her apartment, and when the apartment door was unlocked, he followed her into the apartment, purportedly to check for intruders. When defendant met with B and K in his office, he locked the door behind them after they had entered the office. In each instance, the ostensible reason for the encounter was related to defendant’s role of landlord, but he subsequently initiated physical contact with each person by hugging them or asking them for a hug.

In Johnson, the court held admissible the testimony of four witnesses that defendant had sexually abused them after incapacitating them with intoxicants. The court explained that

“[t]he testimony of those witnesses demonstrated that defendant had developed a method for obtaining sexual access to women without their consent (which method involved administration of incapacitating drugs, commonly liquid morphine) and permitted the jury to infer that the victim, like others, had not consented to the sexual contact with defendant[.]”

340 Or at 341. While the factual circumstances in Johnson differ significantly from the circumstances in this case, the holding in Johnson demonstrates the general proposition that other prior bad acts by a defendant can be probative regarding the issue of whether the person consents to sexual contact with the defendant.

In light of the holding in Johnson, we turn to the issue of the admissibility of K’s and R’s testimony in this case. We first consider whether the testimony satisfies the relevancy requirement under OEC 401. State v. Chavez, 229 Or App 1, 210 P3d 259, rev den, 347 Or 365 (2009). We conclude that the evidence satisfies the minimal requirements for relevancy in OEC 401 because it has the tendency to make B’s testimony more credible and to refute defendant’s claim that she consented to his actions.

Relevancy, by itself, however, is not enough to render the evidence admissible under OEC 404(3).² In that provision, the legislature has expressly declared that character or propensity evidence is not admissible to show that a defendant acted in conformity with his or her prior bad acts. Thus, evidence that otherwise might satisfy the requirements of OEC 401 is not admissible under OEC 404(3) if its only tendency is to show that the defendant is the kind of person who has a propensity to do evil. See, e.g., State v. Pratt, 309 Or 205, 210, 214, 785 P2d 350 (1990). Rather, the evidence must also be sufficiently probative of an exception to the general rule of nonadmissibility of character propensity evidence in order to effectuate the legislature’s intent underlying OEC 404(3). Johnson, 340 Or at 339.

We believe that the debate in this case between the majority and the dissent, when properly framed, is whether R’s and K’s testimony is sufficiently probative of an issue other than character or propensity. If the only tendency of the disputed evidence is to show that defendant is the kind of man who sexually attacks women, then the legislature clearly intends that the evidence be excluded. On the other hand, if the evidence is consistent with the legislature’s intent to authorize the admission of prior bad acts evidence that is probative of other disputed fact issues, then the testimony should be admitted to fulfill the legislature’s intention. We believe the legislature’s dual intentions in that regard are resolved in Johnson by requiring that the evidence be sufficiently probative for a purpose other than character or propensity. If a reasonable trier of fact could only consider the evidence as propensity or character evidence, then the evidence should be excluded under OEC 404(3). If, however, a reasonable trier of fact could also draw from the evidence a rational inference that does not rely on the defendant’s character or propensity to do evil, then the evidence is properly admissible. See Johnson, 340 Or at 338 (“such evidence may be admissible to prove other facts that are relevant in the case, as long as the claim of logical relevance connecting the evidence to the ‘other’ fact or facts does not ultimately rely on an inference relating to the defendant’s character or propensities”) (emphasis in original).

Such a test is consistent with the prior case law under OEC 404(3). For example, before evidence of other crimes is admissible to prove the identity of a perpetrator, a high degree of similarity between charged and uncharged crimes is required to diminish the potential that the trier of fact may conclude that the defendant is the perpetrator because he is a bad person. State v. Pinnell, 311 Or 98, 109-10, 806 P2d 110 (1991). In contrast, when prior crime evidence is offered to prove the element of intent, a high degree of similarity is helpful, but is not essential, and evidence of a distinctive methodology is irrelevant. State v. Johns, 301 Or 535, 555-56, 725 P2d 312 (1986). Thus, the requirements for admissibility under OEC 404(3) ultimately depend on the particular circumstances in the case and what disputed fact the evidence is offered to prove. These considerations must be made in light of the legislature’s intention to exclude prior bad acts evidence except when offered for purposes other than character or propensity.

Here, as in Johnson, there is no requirement under OEC 404(3) that evidence of defendant’s prior wrongs demonstrate a distinctive methodology or a signature crime. However, it is essential that the uncharged crimes evidence support the narrow inference that the state seeks to draw from it. Johnson, 340 Or at 340. In this case, R’s and K’s testimony demonstrates defendant’s method of manipulating his landlord-tenant relationship with other female tenants to place them in circumstances where they were vulnerable to his sexual advances. In Johnson, the evidence “demonstrated that defendant had developed a method for obtaining sexual access to women without their consent[.]” 340 Or at 341. The evidence regarding other victims in Johnson permitted the jury to properly infer that the victim, like other victims, had not consented to the sexual contact with the defendant. In this case also, the trier of fact could properly infer that B, like R and K, had not initiated or consented to defendant’s sexual advances as defendant argued, but rather, as he did with R and K, defendant used the leverage of his landlord relationship to put B in a position where she was alone and vulnerable to his sexual advances. It follows that the trial court did not err in admitting their testimony under OEC 404(3) as relevant to and probative of the issues of B’s credibility and whether she initiated or consented to defendant’s sexual contacts with her.

Affirmed.

1 ORS 163.425(1) (2005) provided:

“A person commits the crime of sexual abuse in the second degree when that person subjects another person to sexual intercourse, deviate sexual intercourse or, except as provided in ORS 163.412, penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim does not consent thereto.”

ORS 163.415(1) (2005) provided, in part:

“A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:

“(a) The victim does not consent to the sexual contact * * *[.]”

As relevant to the facts of this case, “sexual contact” means “any touching of the sexual or other intimate parts of a person * * * for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6) (2005).

2 We are mindful that OEC 404(4) provides that evidence of other crimes, wrongs, or acts by a defendant is admissible, if relevant, subject to exceptions not applicable here.