In this criminal case, defendant appeals a judgment convicting him of one count of fourth-degree assault, ORS 163.160, of his wife, arguing that the trial court erred in admitting evidence that defendant had previously threatened to kill her. The trial court admitted the evidence on the theory that it was relevant to show that, contrary to defendant's assertions, he had caused the complainant's injuries intentionally, not accidentally. On appeal, defendant contends, among other things, that the court erred in admitting the evidence because the state failed to carry its burden of demonstrating, as required by OEC 404(3), that the evidence was logically relevant to show something other than defendant's bad character. We agree that the court erred in admitting the evidence of the threat, and we conclude that that error was not harmless. Accordingly, we reverse defendant's conviction and remand for further proceedings.
"`We evaluate the denial of a defendant's motion to exclude evidence of other acts in light of the record made before the trial court when it [made its decision].'" State v. Johnson, 281 Or.App. 51, 53, 380 P.3d 1023 (2016) (quoting State v. Brumbach, 273 Or.App. 552, 553, 359 P.3d 490 (2015), rev. den., 359 Or. 525, 379 P.3d 516 (2016) (citing State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012))). Because the state's request to present evidence of defendant's prior threat against the complainant, and defendant's objection to that request, took place during trial, we recount the evidence presented before that request and during the hearing on the request.
One afternoon in December 2011, shortly after the complainant arrived home from work, defendant and the complainant had an altercation at their home. The complainant's boss, who had dropped her off, heard the altercation and called 9-1-1. A Klamath County Sheriff's Deputy responded, and the complainant told him that defendant had punched her twice in the face. The complainant had an abrasion on her face, and defendant had recent injuries on his knuckles.
In an interview with the deputy, defendant said that he had not punched the complainant. Instead, he asserted that, while he had been angrily pulling his coat out of a closet during the argument, the closet door had gotten caught on the coat and the door had bounced off of his own face and then hit the
During the complainant's testimony, the state sought to present evidence of a threat that defendant had made against the complainant at some point in the past. At a hearing outside the presence of the jury, the complainant testified, without elaboration, that, "a few years ago," defendant had threatened to take her out into the woods and kill her. The court decided that, in light of defendant's assertion that he had injured the complainant accidentally, not intentionally, and the suggestion that he might have been acting in self-defense (by "stiff-arming" the complainant while she tried to push him out the door) the evidence was admissible under State v. Harris, 81 Or.App. 574, 726 P.2d 943 (1986), rev. den., 302 Or. 476, 731 P.2d 442 (1987), which we discuss in more detail below. Here, it suffices to note that, in Harris, we applied the test that the Supreme Court established in State v. Johns, 301 Or. 535, 549-56, 725 P.2d 312 (1986), for admission of certain evidence to prove "intent" under OEC 404(3). In making its ruling, the trial court in this case applied the Johns test and, following our application of the test in Harris, decided that the evidence satisfied its requirements.
After the ruling, the complainant testified before the jury that, sometime in the past, defendant had threatened to take her out into the woods to kill her. The jury found defendant guilty, and he appeals the resulting conviction.
Before setting out the parties' arguments, we explain the relevant law in some detail. In this case, our analysis is governed by OEC 404(3), which provides:
Id. at 254, 855 P.2d 621 (quoting State v. Johnson, 313 Or. 189, 195, 832 P.2d 443 (1992) (alteration in Hampton)); see also State v. Turnidge, 359 Or. 364, 450, 374 P.3d 853 (2016) (Turnidge) (citing Hampton in discussion of relevance of motive evidence).
In Johns, 301 Or. at 549-56, 725 P.2d 312, the Supreme Court addressed the relevance and admissibility of evidence of other crimes, wrongs or acts — also known as "prior bad acts" — to prove intent under a doctrine-of-chances theory. The doctrine of chances is premised on the view that "`an unusual and abnormal element[ — accident — ]might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.'" Id. at 553, 725 P.2d 312 (quoting John Henry Wigmore, 2 Evidence § 302, 246 (Chadbourne Rev. 1979)). The doctrine is "`the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.'" Id. (quoting Wigmore, 2 Evidence § 302 at 246).
Because the idea underlying the doctrine of chances is that "`similar results do not usually occur through abnormal causes,'" id. (quoting Wigmore, 2 Evidence § 302 at 246), "[i]n order for other acts evidence to be logically relevant under the doctrine of chances, the other act must be similar to the charged act." State v. Tena, 281 Or.App. 57, 64, 384 P.3d 521 (2016).
After Johns was decided, both we and the Supreme Court applied the Johns test to a wide variety of evidence offered to show intent under OEC 404(3), sometimes without considering whether the evidence was offered on a doctrine-of-chances theory. See, e.g., State v. Moen, 309 Or. 45, 67, 68, 786 P.2d 111 (1990) (applying Johns test to evidence of recent threats against the victim that showed the defendant's "hostile motive, which in turn is probative of [the defendant's] intent"); Harris, 81 Or.App. at 578, 726 P.2d 943 (in an attempted murder case, applying Johns test to evidence that defendant disliked
However, in Turnidge, the Supreme Court recently explained that the Johns test applies only to evidence admitted under a doctrine-of-chances theory. 359 Or. at 434-37, 374 P.3d 853. The court explained, "Prior bad acts evidence can be relevant to a defendant's intent on theories other than the doctrine of chances." Id. at 436, 374 P.3d 853. If the theory of relevance on which the evidence is offered does not rely on the doctrine of chances, the evidence is not subject to the Johns test. Id. The court explained that evidence that shows a defendant's motive — for example, in a homicide case, a recent threat to kill the victim if she dated another man — might be admitted to show that the defendant killed the victim intentionally after he saw her on a date with another man. Id. That type of evidence is not admitted under a doctrine-of-chances theory and, consequently, is not subject to the Johns test. Id. at 436-37; see also Tena, 281 Or.App. at 70, 384 P.3d 521 ("Evidence offered to prove intent by showing the defendant's motive is not subject to the Johns analysis."); Johnson, 281 Or.App. at 56, 380 P.3d 1023 ("[F]ollowing Turnidge, evidence of `hostile motive' need not meet the Johns test.").
Instead of applying the Johns test, the court in Turnidge considered whether the evidence at issue in that part of the opinion — evidence that the defendant had previously conducted a "trial run" of the charged bank bombing by calling in a bomb threat to a nearby bank and watching the law enforcement response — was logically relevant to show that the defendant had formed and executed a plan that included both the trial run and the charged bank bombing. 359 Or. at 440-42, 374 P.3d 853. The court concluded that the evidence of the "trial run" was logically relevant for that purpose; accordingly, it was admissible under OEC 404(3) to show, by way of the defendant's plan, that the defendant's commission of the charged acts was intentional. Id. at 442, 374 P.3d 853.
With that legal context in mind, we turn to the parties' arguments in this case. In his opening brief, defendant argues that his threat against the complainant was not relevant to his intent in injuring the complainant because it failed the Johns test.
"We review for legal error [a] trial court's decision to admit evidence of uncharged misconduct under OEC 404(3)." State v. Stubblefield, 279 Or.App. 483, 490, 380 P.3d 1126 (2016) (citing Turnidge, 359 Or. at 429, 374 P.3d 853). We begin with the trial court's reasoning. As noted, in making its decision, the trial court relied on Harris. In that case, during a disagreement in a tavern, the defendant "pulled [his] pistol and fired three shots, killing * * * two other men. [The victim, who had been standing with the defendant and the two other men,] ran out of the tavern. Defendant fired at him, hitting the side of the tavern." Harris, 81 Or.App. at 576, 726 P.2d 943. For his conduct toward the victim, the defendant was charged with attempted murder, and the trial court admitted evidence of the defendant's prior racially motivated threats and incidents in which he had pointed guns at people and shot a dog "to prove that defendant intended to kill [the victim] when he shot at him." Harris, id. at 576, 726 P.2d 943. We held that the Johns test applied "in determining whether the evidence is relevant to the defendant's intent." Id. at 577, 726 P.2d 943. After citing similarities between the prior incidents and the charged crime — the defendant acted with malice, he was antagonistic toward "whites" (the defendant was Native American and the victim was apparently Caucasian), he had been drinking when he became aggressive, and he had held a gun and acted threateningly in all the incidents — we concluded that "[u]nder Johns, [the disputed] evidence tends to show that, when defendant shot at [the victim], he intended to kill him." Id. at 578, 726 P.2d 943.
The facts of Harris did not allow an inference that the defendant shot at the victim by accident and, accordingly, we did not mention that possibility in our analysis. See Johns, 301 Or. at 553, 725 P.2d 312 (doctrine of chances draws its persuasive force from the principle that "`the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them'" (quoting Wigmore, 2 Evidence § 302 at 246)). Thus, in Harris, we were not evaluating the evidence under a doctrine-of-chances theory of relevancy.
As the Supreme Court explained in Turnidge, the Johns test does not apply to evidence offered to prove intent on a theory other than the doctrine of chances. Turnidge, 359 Or. at 436, 374 P.3d 853. Accordingly, after Turnidge, our holding in Harris — that the evidence of the defendant's prior acts was admissible because it satisfied the Johns test — is no longer good law.
In this case, defendant did assert that he had caused the complainant's injuries by accident: he contended that he had injured the complainant's face by accidentally hitting it with the closet door and, perhaps, by "stiff-arming" her while she tried to push him out the door. Nevertheless, the court did not admit the evidence of the threat under a doctrine-of-chances theory. As explained above, the doctrine of chances relies on the understanding that, the more often a particular result has occurred because of an abnormal cause, the less likely it is that the abnormal cause is the explanation for another occurrence of the result. Johns, 301 Or. at 549-56, 725 P.2d 312. Here, the record does not indicate that the result of the charged incident — injury to the complainant or anyone else — had ever occurred before; thus, the court's admission of the evidence did not rest on the understanding that, because defendant had accidentally injured the complainant or someone else before, accident was less likely to be the true explanation for his injury of the complainant on the day in question. Instead, the court relied on our analysis in Harris, which, as we have explained, is incorrect in light of Turnidge. Accordingly, the state is correct that the Johns test does not apply.
Thus, we turn to the state's argument that the evidence was relevant for a nonpropensity
The parties dispute whether that requirement is satisfied here. As noted above, the evidence of the prior threat was that, "a few years ago," defendant had told the complainant that he would take her out into the woods to kill her. The record does not reveal anything else about the context in which the threat was made. It does reveal that defendant and the complainant had known each other since they "were kids going to school." At the time of the charged assault, they had been married for not quite three years, lived together, and had a three- or four-year-old child. The complainant testified that the argument that led to the charged assault began when she got home from work, when she and defendant "started arguing around, yelling at each other back and forth." She did not remember what the argument was about; she explained, "It was probably something little and then it just got blown up." There is no evidence about any previous arguments or that either party had been injured in an argument before.
The state contends that "a threat to kill someone gives rise to the following reasonable inference: the person making such a serious threat must have deep-seated hostile feelings for the target of the threat, which feelings are unlikely to dissipate to an insignificant level even over a period of years." Defendant responds that, in the absence of further development of the record, it is not reasonable "to infer that defendant's hostility toward [the complainant] persisted over a period of years * * * and that that hostility resurfaced on the day of the alleged assault."
Thus, the state's proffered theory of relevance is that the threat evidence is probative of defendant's intent to injure the complainant by way of a theory of motive: The threat evidence demonstrates that defendant felt hostility toward the complainant a few years before the charged assault, and, in the state's view, the jury could infer that that hostility continued sufficiently until the day of the charged assault to provide a reason for defendant to have intentionally injured the complainant on the day in question.
Hampton, 317 Or. at 257 n. 12, 855 P.2d 621 (omission in Hampton; emphasis added).
To determine whether evidence of a prior act is relevant to show the defendant's motive to commit the charged act, we look to whether the state has showed "`some substantial connecting link between the two acts.'" Turnidge, 359 Or. at 451, 374 P.3d 853 quoting State v. Flett, 234 Or. 124, 128, 380 P.2d 634 (1963)).
In Turnidge, one of the questions before the court was whether evidence that the defendant vehemently disliked police, corrections officers, and the government made it more likely that he intended to kill law enforcement officers when he planted a bomb at a bank and made a bomb threat to that bank and another bank. 359 Or. at 448-49, 374 P.3d 853; id. at 450, 374 P.3d 853 (citing OEC 401). To illustrate the proposition that a logical inference must link evidence of motive to the charged crime, the court discussed, among other cases, Flett, in which, the Turnidge court explained, "no connection could be logically inferred between the evidence and the defendant's motive or intent":
Turnidge, 359 Or. at 451, 374 P.3d 853 (third brackets in Turnidge).
In State v. Garrett, as in Flett, the Supreme Court concluded that the record did not support the inference that the state sought to have the jury make. In that case, the defendant was charged with the murder of Williams, and the state sought to admit evidence relating to the defendant's earlier convictions for assault of Moore, which had been motivated by the defendant's desire to steal drugs from Moore. 350 Or. at 3, 5, 248 P.3d 965. In seeking the admission of the evidence of the assault, the state asserted that, "although no large amounts of drugs were found in Williams's residence, she was known in her neighborhood as a marijuana dealer. * * * [I]t is therefore permissible to infer that drugs were present in the Williams residence and that those drugs were stolen when Williams was murdered." 350 Or. at 8-9, 248 P.3d 965.
Garrett, 350 Or. at 9, 248 P.3d 965.
Flett and Garrett demonstrate that the mere possibility that the same motive that caused an earlier crime or act also caused the charged crime is not enough to make evidence of the prior act relevant. Instead, something in the circumstances of the charged crime must suggest that the identified motive is at work. Said another way, there must be a logical match between the motive and the specific circumstances of the charged crime, or, as the Supreme Court put it in Flett, a "substantial connecting link" between the two acts. 234 Or. at 128, 380 P.2d 634; see also Turnidge, 359 Or. at 450, 374 P.3d 853 (state must establish "some sort of logical connection" between purported motive and the charged crime). Evidence of a defendant's motive for committing a prior act is not admissible to prove the defendant's motive in committing a later act when the possibility that the same motive caused both acts is, as in Garrett, "mere conjecture." 350 Or. at 9, 248 P.3d 965.
In Flett, as described above, the state contended that the defendant's one-time affair demonstrated ill will toward the victim (the defendant's husband) and that ill will could have caused her to kill him during an argument. 234 Or. at 127, 380 P.2d 634. The court did not consider that proposition in the abstract. Instead, it turned to the circumstances of the killing for confirmation of the possible motive, but it found none: "[T]he defendant and the victim regularly had quarreled and drunk excessively, and `no evidence [tended to show] that the hostility, if any, of one spouse toward the other had anything to do with marital fidelity.' [Flett, 234 Or] at 127-28, 380 P.2d 634." Turnidge, 359 Or. at 451, 374 P.3d 853 (second brackets in Turnidge). Although it was possible, in the abstract, that ill will arising from recent infidelity might provide a motive for killing a spouse, see Flett, 234 Or. at 126-27, 380 P.2d 634, the record in Flett did not allow a reasonable inference that it had done so in that case.
Similarly, in Garrett, the record did not support the inference that robbery or burglary might be the motive for the charged murder. Although a detective had testified that the victim was known as a marijuana dealer and that investigators were surprised that she did not have more marijuana in her house, the circumstances of the crime did not support an inference that she had been robbed. 350 Or. at 9, 248 P.3d 965. On the contrary, the victim had been sexually assaulted, and there was no evidence of robbery or burglary. Id. Because "the state's claim that a robbery or burglary took place * * * [was] mere conjecture," id. there was no substantial link between the proffered motive and the crime. Thus, evidence that, on another occasion, the defendant had assaulted someone in order to steal drugs was irrelevant. Id. at 11, 248 P.3d 965.
In State v. Clarke, 279 Or.App. 373, 379 P.3d 674 (2016), we applied that principle in a case where the circumstances amply indicated
Finally, we turn to the arguments and facts before us. As noted above, the state contends that, once one person has threatened to kill another, it is reasonable to infer that, at any time in the future, the hostility demonstrated by the threat persists and provides a motive for injuring the other. That assertion is similar to the state's assertion in Flett that an act of infidelity is always relevant in a case involving the murder of a spouse. It is possible that the ill will demonstrated by a prior infidelity — or, in this case, the hostility demonstrated by a prior threat — could motivate a later assault or murder. As Flett and Garrett demonstrate, however, that possibility is not enough to make the purported motive evidence relevant. Instead, courts must evaluate a past act to determine, first, what motive the prior threat demonstrates, and, second, whether the circumstances of the charged crime support an inference that the same motive is at work.
Here, regarding the prior act, the record reveals only that, a few years before the charged conduct, defendant threatened to kill the complainant. We agree with the state that the threat shows that, when it was made, defendant was angry with, and hostile toward, the victim. However, on this record, we have no way of evaluating whether a substantial link exists between that hostility and the charged assault. That is, the record lacks the information necessary to determine whether the same hostility might have been at work in both incidents.
The record contains no evidence about the context in which the threat was made. It lacks information about what, if anything, preceded or led to the threat and whether the threat was the type of threat that, in another context, has been described as "hyperbole," "rhetorical excess," or an "impotent expression of anger or frustration." State v. Rangel, 328 Or. 294, 303, 977 P.2d 379 (1999) (internal quotation marks omitted). In short, it does not contain evidence from which a non-speculative inference could be drawn regarding whether the motive for the threat — hostility — was likely to persist until, or recur on, the date of the charged crime and motivate the commission of that crime.
The threat does not suggest any motive more specific than generalized hostility. Cf., e.g., Turnidge, 359 Or. at 436, 374 P.3d 853 (using, as an example, the jealousy of victim dating another man as providing the necessary link between a recent threat and a charged crime by the jealous actor). Moreover, nothing in the circumstances of the charged assault suggests that a particular type of hostility was at work. Cf., e.g., id. at 452-53, 374 P.3d 853 (defendant's acts of planting a bomb and calling in a threat that would bring law enforcement to the scene allowed inference that motive was to injure or kill law enforcement officers; thus, evidence of defendant's hatred of law enforcement was relevant).
Furthermore, to the extent that generalized hostility can provide the necessary link
Given the lack of information about the circumstances surrounding the threat, the lack of any suggestion of a particular motive in the circumstances of the assault, and the lack of support for an inference that defendant's general hostility continued over the intervening "few years," the record does not support an inference that the hostility that caused the threat also motivated the charged assault. Accordingly, the state did not carry its burden of showing that the evidence of the threat was relevant, and the court erred in admitting the evidence.
We cannot say that the error was harmless. See State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003) ("Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?"). The threat — in particular, its wording — was highly inflammatory, and, as such, created a risk that the jury would convict defendant based on his past acts or his character. Moreover, it was susceptible to the chain of inferences, forbidden under OEC 404(3), that defendant was likely to have assaulted the victim on the day in question because he had a propensity toward domestic abuse. Accordingly, we cannot say that the improper admission of the threat evidence had little likelihood of affecting the verdict. See id.
Reversed and remanded.
Here, because the state has not argued, below or on appeal, that the evidence is relevant and admissible for propensity purposes under OEC 404(4), we need not decide that question. See State v. Hudman, 279 Or.App. 180, 187, 379 P.3d 659 (2016) (where trial court admitted prior bad acts evidence under OEC 404(3) and state did not advance theory of admissibility under OEC 404(4) as an alternative basis for affirmance, "our task on appeal is limited to determining whether the trial court erred in admitting [the disputed evidence] under OEC 404(3)"); State v. Davis, 279 Or.App. 223, 233, 381 P.3d 888 (2016) (where state advanced no propensity argument either before the trial court or on appeal, "we confine our analysis to the questions presented in defendant's opening brief: whether the court erred under OEC 404(3) in admitting the [disputed] evidence and whether any error harmed defendant").
301 Or. at 555-56, 725 P.2d 312.
Following the enactment of OEC 404(4) in 1997, we held that evidence of other acts by a criminal defendant could be admitted without applying the sixth Johns factor; that is, it could be admitted without balancing the probative value of the evidence against the danger of unfair prejudice. See, e.g., State v. McIntyre, 252 Or.App. 16, 27 n. 10, 284 P.3d 1284 (2012) (stating that the enactment of OEC 404(4) "effectively removed [the sixth] factor from the Johns analysis"). However, in the Supreme Court's recent decision in Turnidge, 359 Or. at 442, 374 P.3d 853, the court ruled, "if a trial court determines that prior bad acts evidence is relevant to a nonpropensity purpose under OEC 404(3), the court, on a proper motion, must weigh the probative value of the evidence against its potential to unduly prejudice the defendant."