State v. Levasseur

                                      745

 Argued and submitted August 1, 2019; reversed and remanded March 10; on
respondent’s petition for reconsideration filed April 14, reconsideration allowed
                            by opinion June 30, 2021
                    See 

, 

 (2021)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   RICKY ALLEN LEVASSEUR,
                       Defendant-Appellant.
                    Lane County Circuit Court
                      16CR73224; A166406
                                  

     Defendant was convicted of first-degree kidnapping, ORS 163.235, attempted
first-degree sodomy, ORS 163.405(2)(b) and ORS 161.405, first-degree sexual abuse, ORS 163.427, and fourth-degree assault, ORS 163.160(2). The state
alleged that he isolated, assaulted, sexually abused, and tried to sodomize a
woman as she walked home. The state sought to introduce evidence of defendant’s prior convictions, where he had engaged in similar patterns of behavior.
The trial court ruled that evidence of defendant’s prior convictions was admissible under OEC 404(3). Using the factors established in State v. Johns, 

, 

 (1986), overruled by State v. Skillicorn, 

, 

(2021), and after OEC 403 balancing, the trial court concluded that the prior convictions were relevant under a nonpropensity theory of relevance—to prove that
defendant acted with sexual intent. On appeal, defendant assigns error to the
admission of the prior convictions, arguing that they were not relevant for a nonpropensity purpose and thus inadmissible under OEC 404(3). Held: Under State
v. Skillicorn, 

, 

 (2021), the trial court erred by admitting
evidence of defendant’s prior convictions. The prior convictions were not relevant
for a nonpropensity purpose (i.e., other than to show that he acted in conformity
with a character trait to assault women for sexual purposes). Further, the error
was not harmless as to any of the counts given the severely prejudicial nature of
propensity-based reasoning.
    Reversed and remanded.



    Clara L. Rigmaiden, Judge.
   Meredith Allen, 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.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
746                                               State v. Levasseur

Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
    MOONEY, J.
    Reversed and remanded.




____________
   * Egan, C. J., vice Hadlock, J. pro tempore.
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 (2021)                                               747

           MOONEY, J.
         A jury convicted defendant of first-degree kidnapping, ORS 163.235, attempted first-degree sodomy, ORS
163.405(2)(b) and ORS 161.405, first-degree sexual abuse,
ORS 163.427, and fourth-degree assault, ORS 163.160(2).
He appeals the trial court’s judgment of convictions, raising
five assignments of error. Because we conclude, as defendant contends in his first two assignments of error, that
the trial court erred in admitting evidence of defendant’s
prior convictions (other-acts evidence)1 under OEC 404(3),
and because that admission was not harmless, we reverse
defendant’s convictions on that basis and do not address
defendant’s fourth or fifth assignments of error. We briefly
address defendant’s third assignment of error below.
         We review the trial court’s OEC 401 relevancy
determinations for errors of law. State v. Titus, 

, 

 (1999). We likewise review the court’s
decision to admit other-acts evidence for errors of law. State
v. Baughman, 

, 

 (2017); State
v. Wright, 

, 

 (2016). And,
finally, we review the court’s ultimate determination as to
whether evidence is unfairly prejudicial under OEC 403 for
abuse of discretion. State v. Towers, 

,

 (2008).
        The relevant facts are undisputed. During the latenight hours of November 4, 2015, the victim in this case, S,
was walking home from her friend’s house along Highway
99 in Eugene when she spotted a white car driving northbound. She noticed that the driver was watching her over
his shoulder. After turning west down a poorly lit road, she
saw a man watching her from the side of the street. She suspected that he was the driver of the white car. He was large
and wore a black “skeleton” face mask and a dark hooded
sweatshirt. S saw his “light” eyes and facial hair protruding
from underneath the mask. He greeted her.

     1
       We acknowledge that the Oregon Supreme Court referred to other-acts evidence as “uncharged misconduct evidence” in State v. Skillicorn, 

, 

 (2021). We use the term “other-acts evidence” broadly to include evidence
of other crimes, wrongs, or acts generally, and to defendant’s prior criminal acts
and convictions in particular, none of which are charged in this case.
748                                       State v. Levasseur

         Frightened by the man, S crossed the street. He also
crossed. He asked if she was lonely, and she told him to leave
her alone. He refused. Instead, he approached her, grabbed
her from behind, tackled her to the ground, struck her in the
face, and forced her head into the dirt. S smelled something
“chemically.” Afraid that the man was using chloroform, S
tried hitting, scratching, and screaming, but he overpowered
her and pinned her to the ground. She stopped screaming
and momentarily surrendered to the man’s force. He took
her up a berm away from the street and threw her on the
ground inside a small clearing, which was surrounded by a
chain link fence, blackberry bushes, and trees. Its location
was “higher up [from the street] and away from sight.”
         S again began to resist, and the man covered her
eyes by pulling her stocking cap over her face and placing
his own skeleton mask over her head. The two then fought
against the blackberry bushes, which scratched S’s body. The
man straddled S from behind, squeezed her in between his
knees, and groped her breasts, which had become exposed
as he assaulted her. The man told S that she had a choice
between giving him “oral sex or anal sex.” S responded by
saying that she lived nearby, hoping that would cause him
to take her home where she could trigger her security alarm
and alert the police. He replied that he would take her home
and make her watch as he raped her mother and sister.
         The man picked S up by her shoulders and walked
her blindfolded toward the street. S resisted, slipped out of
the stocking cap and skeleton mask, and attempted to run
away, scratching his face and pushing him backward. The
man grabbed her, but S slid out of her shirt and sweatshirt.
She was finally able to flee, leaving some of her personal
belongings at the scene, including her purse, shirt, sweatshirt, stocking cap, and a short hair extension. Once home,
she called the police.
        The police immediately began their investigation.
They brought S to the hospital and provided her with a sexual assault examination. Nurses scraped her nailbeds to
preserve DNA evidence, and they documented her wounds.
She had scratches on her torso, face, and lips, a bruise on
her eye, and a large bump on her head. Officers searched
Cite as 

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the scene of the assault and found the personal belongings
that had been left behind as S ran from defendant. They
also found a skeleton face mask. The police sent the mask
and S’s fingernail swabs to the Oregon State Police crime
lab for DNA testing. Several months later, the extracted
DNA returned a match to defendant, who was in the state’s
DNA database. A later analysis of DNA taken directly from
defendant’s cheek swab confirmed the match. Defendant
was arrested and charged with first-degree kidnapping,
attempted first-degree sodomy, first-degree sexual abuse,
and fourth-degree assault.
         We turn to the other-acts evidence. Defendant had
a prior conviction that involved an incident that occurred in
the early morning hours of February 11, 1989. Defendant
had stopped his vehicle alongside a 17-year-old girl and
offered her a ride home. She refused and kept walking,
but he drove ahead to ambush her. As she unknowingly
approached defendant’s location, he emerged from the car
with a knife, telling her to do what he said. She tried to get
away, but he grabbed her arm and forced her into the backseat. He then drove her to a secluded area and raped her.
         Defendant’s second prior conviction was based
on events that occurred in the early morning hours of
December 2, 2003, when defendant drove to a parking lot
where he selected another victim as she walked to work. On
that occasion, he wore a hooded sweatshirt, a stocking cap,
and a surgical mask over his face. The victim noticed defendant following her, and she tried to flee. Defendant reacted
by chasing her through an abandoned alley, tackling her,
and pinning her to the ground. The victim screamed for
help, but defendant told her that he would hurt her if she did
not submit to him. He then sexually assaulted her. When a
bystander ran to the scene, defendant stopped and fled.
         The question of whether to admit evidence of defendant’s prior crimes came before the trial court on fully
briefed, dueling motions presented at the same pretrial
hearing: a motion to allow prior-acts evidence from the state
and a motion to exclude prior-acts evidence from defendant. The motions contained similar representations of the
prior crimes as well as the conduct underlying the pending
750                                                     State v. Levasseur

charges. Counsel stipulated to those summary descriptions
at the hearing. Defendant argued that the evidence should
be excluded pursuant to OEC 404(3) because it was not relevant for a nonpropensity purpose and that, even if it were,
the danger of unfair prejudice substantially outweighed any
probative value. Defendant further argued that the evidence
was not admissible under OEC 404(4), because that rule
applies only to child sexual abuse cases and is, therefore,
not applicable. The state argued that the convictions were
relevant to prove (1) defendant’s identity and (2) his motive
and intent, and that any potential prejudicial effect did not
outweigh the probative value of that evidence. It argued further that, in any event, the evidence was admissible under
OEC 404(4).
         The trial court took the matter under advisement
and later ruled from the bench. The court explained its
analysis, including, in particular, its use of the questions
articulated in State v. Johns, 

, 

(1986), overruled by State v. Skillicorn, 

, 

 (2021),2 in determining relevance, and the balancing
process it conducted under OEC 403 to ensure fairness.
Specifically, it found that defendant’s prior crimes and those
alleged in this case were sufficiently similar for the other-acts evidence to be relevant to his sexual intent, but not
sufficiently similar to prove identity. It also found, as part
of its analysis, that the probative value of the prior crimes
was substantial, and that the value was not substantially
outweighed by the danger of unfair prejudice. The court
therefore ruled that it would allow evidence of the prior
crimes as evidence of intent. At the time the court ruled,
it also advised counsel that it would instruct the jury not
to consider the other-acts evidence unless it first found
that defendant had, in fact, committed the acts alleged in
the current case and then only as evidence of defendant’s

    2
      As we further explain below, Johns concerned the admissibility of evidence under a “doctrine of chances” theory of relevance. Here, the trial court
indicated, correctly, that the doctrine of chances does not apply in this case. It
nevertheless considered the Johns questions in its relevancy analysis. At the
time, the Supreme Court ruled that it was not inappropriate for a court to do so.
State v. Turnidge (S059155), 

, 442 n 43, 

 (2016), cert den,
___ US ___, 

 (2017). But, as noted, Skillicorn has since overruled
Johns.
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intent.3 The court did not proceed to an OEC 404(4) analysis
because, given its ruling under OEC 404(3), it did not need
to do so.
        At trial, defendant testified and denied any involvement in the incident. The state presented S’s testimony
about the details of the attack and the attacker’s features,
all of which were consistent with defendant’s appearance,
including his facial hair, build, and height, the prior-acts
evidence, DNA evidence, written statements that defendant
had made during a sex offender treatment program explaining his desires to kidnap and sexually assault women on a
random basis, photographs of defendant’s facial scratches,
and photographs showing that defendant had purchased the
skull mask found at the scene.
         At the close of all the evidence, defendant moved
for a judgment of acquittal on the first-degree kidnapping
count, arguing that the state did not present evidence from
which a reasonable juror could infer that he actually kidnapped S. The trial court denied that motion. After closing arguments, and consistent with its pretrial rulings, the
court instructed the jury that it could consider the other-acts evidence as evidence of defendant’s intent only if it first
found that defendant, in fact, committed the acts at issue
in the present case. The jury unanimously returned guilty
verdicts on all counts, and the court entered a judgment of
conviction.
        Relevant evidence is generally admissible. OEC 402.
Evidence that is relevant may nevertheless be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury. OEC 403. Moreover, 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
    3
      State v. Leistiko, 

, 

, adh’d to as modified
on recons, 

, 

 (2012), places a procedural requirement on
courts to provide certain limiting instructions to the jury in cases where the state
offers prior bad acts evidence under a doctrine of chances theory of relevance.
This is not a doctrine of chances case and the instruction was not necessary. See
Turnidge (S059155), 

 (“[S]uch a[ Leistiko] instruction is not required
when prior bad acts evidence is admitted for other relevant purposes.”). The fact
that it was unnecessary is not relevant to our analysis.
752                                          State v. Levasseur

   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.”

In other words, OEC 404(3) bars the use of other-acts evidence “to prove that a person has a propensity to engage
in certain types of behavior and that the person acted in
conformance with that propensity on a particular occasion.
In short, it prohibits ‘propensity evidence.’ ” Skillicorn, 

.
         When the state seeks to admit other-acts evidence,
the trial court must
   “determine whether the proffered evidence is relevant for
   one or more nonpropensity purposes, under OEC 404(3). If
   it is, then the court should determine, at step two, whether
   the probative value of that evidence is substantially outweighed by the danger of unfair prejudice under OEC 403.
   If the trial court determines that the evidence is relevant
   for a nonpropensity purpose under OEC 404(3) and admissible under OEC 403, then it need not determine whether
   the evidence also is admissible under OEC 404(4) and OEC
   403.”

Baughman, 

. In this case, the trial court concluded that the evidence was admissible as nonpropensity
evidence under OEC 404(3), and, because of that, it did not
conduct an OEC 404(4) analysis. The court’s admission of
defendant’s prior convictions under OEC 404(3) is the only
question before us.
         In the time that has passed since the trial court
ruled on the state’s motion, the Supreme Court issued its
opinion in Skillicorn and clarified the OEC 404(3) boundaries of admissibility for other-acts evidence. In doing so,
it overruled Johns “to the extent that” Johns held that
other-acts evidence could be admitted under the doctrine of
chances as propensity evidence. Skillicorn, 

.
         Skillicorn makes clear what Johns did not: Other-acts evidence is not admissible under OEC 404(3) under the
doctrine of chances—or any other theory of relevance—to
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allow a party to argue propensity. To the extent that propensity evidence is admissible, it is under OEC 404(4), which
is not at issue in this case. See State v. Williams, 

, 

 (2015). When other-acts evidence is offered
under OEC 404(3), the proponent must articulate a theory
of relevance that does not logically “depend[ ] on propensity
reasoning.” Skillicorn, 

. If the theory connecting the uncharged misconduct to the fact or inference it is
offered to prove relates to defendant’s character or propensities, it is not admissible under OEC 404(3). 

         The state’s theory of admissibility here is that,
because defendant attacked his victims in the two prior
incidents under remarkably similar circumstances, it is
more likely that, when he assaulted S in this case, he did
so with a sexual purpose. We are mindful of the state’s
theory, and the court’s instruction, that the evidence was
conditionally admissible only if the jury found that defendant had assaulted S. Nevertheless, that theory fundamentally relied on propensity-based reasoning. It ultimately
reduced to an argument about defendant’s character: that,
when defendant isolates and attempts to grab women, he
does so in order to sexually assault them—rather than to
simply assault or rob them, or to commit other, nonsexual
crimes. The state’s theory of admissibility required the jury
to infer from defendant’s prior crimes that he has a propensity to assault women for sexual purposes, and that he
acted in conformity with that propensity in this case. That
is propensity-based reasoning. We recognize that, when the
trial court ruled on the admissibility of the other-acts evidence, Skillicorn had not yet been decided. But Skillicorn is
now the law and we must, therefore, conclude that the court
erred by admitting evidence of defendant’s prior crimes and
convictions. Defendant’s prior crimes and convictions are
not admissible under OEC 404(3) under the state’s theory of
relevance—to show sexual purpose.

          Having concluded that the trial court erred in
admitting evidence of defendant’s prior crimes and convictions, we turn to the question of whether that error was
harmless. Evidentiary error is harmless when “there is little likelihood that the particular error affected the verdict.”
754                                        State v. Levasseur

State v. Davis, 

, 

 (2003). In making that determination, among other factors, “we assess any
differences between the quality of the erroneously admitted
evidence and other evidence admitted on the same issue.”
State v. Wirkkala, 

, 

 (2018)
(internal quotation marks and citations omitted).
         The state argues that the admission of defendant’s
prior crimes and convictions was harmless because the
physical evidence of defendant’s presence at the scene was
“overwhelming,” as was the evidence of his state of mind.
It asserts that defendant’s own writings, his testimony, the
DNA evidence, photographic evidence, and S’s testimony
would be enough, on its own, to convict defendant, and that
the testimony from defendant’s former victims was effectively redundant. We do not agree.
          Inviting the jury to engage in propensity-based reasoning is severely prejudicial. Skillicorn, 

. Such
reasoning “carries a risk of causing the verdict to be based
on an overestimation of the probative value of the evidence.”

 When jurors overvalue severely prejudicial evidence, we
cannot say that the erroneous admission of the evidence had
little likelihood of affecting the jury’s verdict. In this case,
S’s credibility was a critical issue because, despite the physical evidence of defendant’s interaction with S and defendant’s journal entries, S was the only person to testify about
the actual allegations of sexual abuse and attempted sodomy. Having defendant’s prior victims testify about his patterns of behavior (i.e., his character) significantly bolstered
S’s credibility. We cannot conclude that the prejudice inherent in the prior crimes evidence played no role in the jury
deliberations—particularly with regard to S’s credibility.
See State v. Nguyen, 

, 

(2018) (concluding that evidence leading to inferences that
the defendant committed a certain crime, on its own, cannot overcome the prejudicial effect of improper misconduct
evidence).
         With regard to the kidnapping conviction in particular, we cannot say that the admission of defendant’s
prior crimes was harmless in light of its prejudicial effect.
Although there was a significant amount of admissible
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incriminating evidence that defendant kidnapped S,4 it can
hardly be disputed that the admission of propensity evidence
was at least an implicit invitation to the jury to accept S’s
testimony as true and to accept that defendant was guilty
as charged because he had done this sort of thing before. See
Wirkkala, 

 (considering “the importance
of the erroneously admitted evidence to a party’s theory of
the case”); State v. Jones, 

, 

(2017) (“If erroneously admitted evidence relates to a central issue in the case, it is more likely that the error substantially affected the verdict.”). The jury, no doubt, could
have reached the same conclusion without the other-acts
evidence, but we cannot say that there was “little likelihood
that the [trial court’s] error affected the verdict.” Davis, 

.
         Whether admission of the other-acts evidence was
harmless as to the assault conviction is arguably a closer
call. But the state’s harmlessness argument in this court is
at odds with its argument in the trial court that the other-acts evidence was “essential to the state’s ability to prove
that the defendant, as opposed to another, committed the
charged crimes[,]” and that, despite the DNA and other
physical evidence, the other-acts evidence was “critical to
establish modus operandi and the identity of the defendant

    4
       We briefly turn to the merits of defendant’s third assignment of error
related to his motion for judgment of acquittal (MJOA) on the first-degree kidnapping charge. Viewing the admissible evidence in the light most favorable to
the state, State v. Bivins, 

, 

 (2004), a jury could
reasonably have concluded that (1) defendant moved the alleged victim, S, to a
“qualitatively different” location than the one in which he first encountered her,
State v. Sierra, 

, 

 (2010), aff’d as modified, 

, 

 (2011); (2) that movement represented a “substantial interference” with S’s personal liberty, State v. Eastman, 

, 

 (2016), rev den, 

 (2017); and (3) the kidnapping was not “merely
incidental to other related, but independent, crimes,” State v. Washington, 

, 

 (2014). See also State v. Opitz, 

, 

 (2013) (explaining that the “hallmark” question to determine
“qualitative difference” is “whether the difference between the starting and ending places promotes or effectuates a substantial interference ‘with another’s personal liberty’ ” (quoting ORS 163.225(1))). Accordingly, the evidence would have
satisfied the requirements of ORS 163.225(1)(a) under the “asportation” theory
of kidnapping, and the trial court therefore did not err in denying defendant’s
MJOA. Because the evidence would have been sufficient on that ground, we need
not address whether it would have been sufficient to defeat defendant’s MJOA on
the “secret confinement” theory of kidnapping. ORS 163.225(1)(b).
756                                       State v. Levasseur

as S’s attacker.” Although the jury was not permitted to
consider the other-acts evidence for purposes of identity, we
have no reason to believe that it did not consider it significant for the other reasons that the state advanced at trial.
We further think it likely that the testimony of defendant’s
prior victims bolstered S’s credibility with respect to all
charges here. As a result, we conclude that the error was not
harmless on any count.
        Reversed and remanded.