State v. Phillips

                                      309

      Submitted October 29, 2020, reversed and remanded May 12, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                        JUSTIN PHILLIPS,
                    aka Justin Michael Phillips,
                       Defendant-Appellant.
                  Tillamook County Circuit Court
                       17CR12173; A166928
                                  

    Defendant appeals from a judgment of conviction for six offenses involving the abuse of the complaining witness. In his first two assignments of error,
defendant challenges the admission of prior incidents when he strangled the
complainant, which the trial court admitted for the purposes of demonstrating
defendant’s motive and rebutting defendant’s consent defense. Defendant also
asserts that the trial court erred in admitting evidence from a pretext telephone
call and text messages based on the hearsay exception in OEC 803(18a)(b).
Held: The trial court erred in admitting evidence of those incidents for the purpose of motive but did not err in admitting them for the narrower, nonpropensity
purpose of rebutting defendant’s consent defense. The Court of Appeals did not
reach the question whether the trial court abused its discretion in admitting the
evidence for that narrower purpose under OEC 403. The complainant’s statements in the pretext call and text messages were not admissible under OEC
803(18a)(b). Those errors are prejudicial and, accordingly, the court reversed and
remanded defendant’s convictions.
    Reversed and remanded.



    Mari Garric Trevino, Judge.
    Kenneth A. Kreuscher filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeVORE, P. J.
    Reversed and remanded.
310                                                        State v. Phillips

           DeVORE, P. J.
         Defendant appeals from his judgment of conviction
for one count each of first-degree rape, ORS 163.375, harassment, ORS 166.065(3), strangulation, ORS 163.187(4), and
fourth-degree assault, ORS 163.160(2), and two counts of
first-degree sodomy, ORS 163.405.1 In his first two assignments of error, defendant challenges the trial court’s admission of evidence of prior incidents when he strangled the
complainant. The trial court admitted the evidence for two
purposes under OEC 404(3) and rejected defendant’s argument about unfair prejudice under OEC 403. We determine
that the trial court erred in admitting evidence of those incidents for the purpose of motive, but that the trial court did
not err in admitting them for the narrower, nonpropensity
purpose of rebutting defendant’s consent defense. We do not
reach the question whether the trial court abused its discretion in admitting that evidence for a narrower purpose under
OEC 403. In a pro se assignment of error, defendant asserts
that the trial court erred in admitting evidence from a pretext telephone call and text messages based on an exception
in OEC 803(18a)(b). We accept the state’s concession of error
on that point. We reject defendant’s other assignments of
error without discussion.2 We determine that the two errors
are prejudicial, and we reverse and remand.
        “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.
Wright, 

, 

 (2016) (internal
quotation marks and brackets omitted). The state’s request
to present evidence and defendant’s objection took place
during a pretrial hearing, so we focus on the evidence presented during that hearing. See 

    1
      Although the statutes defining the offenses for which defendant was convicted have, in some instances, been amended after the alleged crimes, we refer
to the current version of the statutes in this opinion because those amendments
do not affect our analysis.
    2
      In his sixth pro se assignment of error, defendant asserts that the trial
court plainly erred when it instructed the jurors using a nonunanimous jury
instruction. Because the record does not reveal whether the jury’s guilty verdicts
were unanimous, we conclude that it is not appropriate to consider defendant’s
unpreserved assignment of error for the reasons stated in State v. Dilallo, 

, 

 (2020).
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         The charges in this case resulted from the rape,
sodomy, strangulation, and assault of the complainant, K,
in her home on October 25, 2016. Defendant and K had been
in an “off and on” romantic relationship since about 2013
and had lived together at times in Portland. K and defendant had used drugs, including heroin, throughout their
relationship.
        In 2016, K moved from Portland to Tillamook
County. Although defendant did not move with K, the two
were still communicating. K’s move was, in part, motivated
by a desire to be closer to her son, who had been removed
from her custody by Child Protective Services and placed
with family in Tillamook. As a condition of the agency’s
reunification plan, K was prohibited from contact with
defendant.
          On October 25, 2016, K invited defendant to her
home in Tillamook County to help him “detox” from heroin.
She “felt like [she] wanted him there.” That night, the two
quarreled when K rebuffed defendant’s requests for sexual
activity. During the argument, defendant “jumped up out of
[his] chair and … grabbed [K] by the neck,” strangled her,
took her pants off, raped her vaginally and anally, and then
forced K to perform oral sex. Defendant remained for two
more days at K’s home while experiencing detox symptoms,
then returned to Portland.
        A few days later, K spoke to an advocate with the
Women’s Resource Center who encouraged K to report the
rape and assault to police. She did, and, later, she made a
recorded, pretext phone call to defendant. In that call, defendant made incriminating statements. He also made incriminating statements in several text messages to K.
           K ended the relationship in 2017.3
        Defendant was indicted by a grand jury on charges
involving the incident in October 2016. Those charges
were first-degree rape, two counts of first-degree sodomy,

    3
      In early 2017, defendant and K reconciled and resumed living together in
Portland. In April 2017, domestic violence occurred again, in which K suffered
broken ribs and a black eye. That domestic violence incident is not at issue on
appeal.
312                                                        State v. Phillips

first-degree burglary, harassment, strangulation, fourth-degree assault, stalking, and telephonic harassment. The
stalking and telephonic harassment charges were dismissed
before trial.
         Prior to trial, the state filed a notice of intent to
offer K’s statements in the pretext phone call and in text
messages with defendant pursuant to the hearsay exception
contained in OEC 803(18a)(b).4 The trial court ruled that it
would admit the statements under that exception.
         The state also filed a motion in limine requesting a
hearing to determine the admissibility of evidence of defendant’s prior uncharged acts that the state wished to introduce at trial. In part, the state sought to introduce evidence
of two earlier incidents during which defendant had strangled K. In the first incident, in April 2015, defendant and
K argued at home, when defendant “came at [K] and tried
to strangle [her] by throwing [her] onto the bed.” The police
were called, charges were filed, and a restraining order was
entered, but later the matter was dropped when defendant
and K reconciled. In the second incident, in February 2016,
the parties argued, and defendant strangled K, but charges
were not filed. In the pretrial hearing, K did not describe the
nature of the arguments that preceded those two incidents.
         The state argued that the incidents in April 2015
and February 2016 were relevant for a number of noncharacter purposes. Among them, the state argued that the
incidents showed that defendant’s motive for the charged
crimes was lingering hostility toward K.5 In addition, or in
    4
       Described in more detail below, OEC 803(18a)(b) provides a hearsay exception for the following categories of statements:
    “A statement made by a person concerning an act of abuse as defined in ORS
    107.705 or 419B.005, a statement made by a person concerning an act of
    abuse of an elderly person, … or a statement made by a person concerning a
    violation of ORS 163.205 or 164.015 in which a person 65 years of age or older
    is the victim … if the declarant either testifies at the proceeding and is
    subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made or
    was 65 years of age or older when the statement was made.”
    5
       Perhaps relatedly, the state argued that the prior incidents helped to
explain K’s continuation of a relationship with defendant as a cycle of abuse, in
which defendant sought to dominate. Although that argument may describe the
general pattern of events, it does not appear to have been adopted by the trial
court as a rationale for admission of evidence of the prior incidents.
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the alternative, the state argued that the incidents would
help rebut defendant’s anticipated consent defense, in which
he would contend that he engaged in “rough sex” to indulge
in K’s “rape fantasy.”6
         At the hearing, defendant argued that the strangulations in April 2015 and February 2016 were not relevant to show defendant’s motive, because, although revenge
might serve as motive, there was no evidence that revenge
had motivated the charged rape. Defendant insisted that
the state’s motive argument depended upon propensity-based reasoning—that, because defendant had previously
assaulted K, he had likely done so in the charged instance.
Alternatively, defendant argued that, even if there were
noncharacter-based theories of relevance, the other-acts
evidence should be excluded as unduly prejudicial under
OEC 403.
          After the hearing, the trial court issued a letter
opinion. The court determined that the prior incidents were
relevant to show defendant’s “hostile motive” and to show
K’s “lack of consent” so as to counter a likely rape-fantasy
defense. Considering OEC 403, the trial court determined
that the “only danger of unfair prejudice would be propensity,” but that the danger of propensity-based reasoning was
outweighed by the “highly probative” nature of the prior acts
to the “issue of hostile motive and lack of consent.”
         The jury found defendant guilty of first-degree rape,
two counts of first-degree sodomy, harassment, strangulation, and fourth-degree assault. The jury acquitted defendant of first-degree burglary.
         On appeal, defendant renews his argument that
the trial court erred in admitting evidence of the prior acts
of strangulation because those acts were not relevant for a
noncharacter purpose. The state renews its arguments that
the prior acts were relevant to show defendant’s motive of
lingering hostility when raping and assaulting K and to
show that K did not somehow consent to the charged acts.
In his pro se brief, defendant adds that the trial court erred
   6
     Defendant did not contradict the state’s assertion that it was likely that he
would raise K’s consent as an issue.
314                                             State v. Phillips

in admitting K’s hearsay statements made to defendant in
the pretext call and text messages. The state concedes error
regarding the hearsay statements but argues that the error
is harmless. We focus on the other-acts issue, which necessitates retrial, and conclude by accepting the state’s concession, to resolve an issue that could recur upon retrial.
        We review a trial court’s determination of whether
other-acts evidence is relevant for a nonpropensity purpose
under OEC 404(3) for errors of law. State v. Baughman, 

, 

 (2017). Under OEC 403, we review
for abuse of discretion a trial court’s determination whether
the danger of unfair prejudice substantially outweighs the
probative value of the proffered evidence. 

        In general, evidence is relevant when it has “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
401. All relevant evidence is admissible unless it is otherwise prohibited by law or another provision of the Oregon
Evidence Code. OEC 402. Two potential limitations on
admissibility are OEC 403 and OEC 404(3).
        Appearing first, but often considered later, OEC
403 provides:
   “Although relevant, evidence may be excluded if its probative 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 presentation of cumulative evidence.”
OEC 404(3), provides, in relevant part, that, “[e]vidence 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,” but the rule allows the admission
of other acts evidence for other purposes, such as “proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or intent.”
        The proponent’s theory of relevance under OEC
404(3) determines the admissibility of the other-acts evidence. State v. Skillicorn, 

, 

(2021). When connecting other acts to the charged act, the
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proponent must articulate the logical path that the proponent will ask the factfinder to follow. Id. at 483. That logical
path cannot depend upon intermediate or ultimate inferences related to the defendant’s character or whether defendant acted in accordance with a certain propensity. Id. at
482. A party cannot employ other-acts evidence, under any
theory of OEC 404(3), to imply propensity. Id. at 483; State
v. Levasseur, 

, 

 (2021).
         When presented with other-acts evidence, the trial
court must determine whether the evidence is truly relevant
for a nonpropensity purpose under OEC 404(3). Baughman,

. The proponent, here, the state, bears the
burden to show that the evidence is relevant and that it is
probative of something other than the defendant’s predisposition to do wrong. State v. Pratt, 

, 

 (1990).
         On appeal, we consider the state’s theories of relevance on which the trial court admitted the evidence. State
v. Davis, 

, 

 (2018). In this
case, two of the state’s theories of relevance were accepted by
the trial court.7 The first was that evidence of the strangulations showed defendant’s “hostile motive against the victim.” The second was that the evidence could serve to rebut
defendant’s defense that the victim consented to rough sex
as part of a “rape fantasy.” For the reasons that follow, we
agree with defendant that the state did not meet its burden
with regard to motive in articulating a permissible, nonpropensity connection between the prior strangulation incidents and the charged rape and assault of K, but we agree
with the state that the evidence was admissible for the limited purpose of rebutting defendant’s consent defense.
        The Oregon Supreme Court has defined motive as
“a cause or reason that moves the will and induces action,
an inducement which leads to or tempts the mind to commit an act.” State v. Hampton, 

, 257 n 12, 

 (1993) (internal quotation marks omitted). In other

    7
      The state repeats its argument that the prior events show a “cycle of violence” or defendant’s desire for dominance, but the state’s analytic path—if meant
to avoid propensity reasoning—is less than clear, and that generalized rationale
was not adopted by the trial court.
316                                          State v. Phillips

words, evidence is relevant to show a defendant’s motive if
the prior acts tend “to show why the defendant committed
the charged crime.” Davis, 

 (emphasis in
original).
         To determine whether motive evidence is relevant,
we look to whether the state has shown “ ‘some substantial
connecting link between the two acts.’ ” State v. Wright, 

 (quoting State v. Turnidge (S059155), 

, 

 (2016), cert den, 

, 

 (2017) (internal quotation marks in Turnidge omitted)). Determining whether the inference is logical requires
a detailed examination of the evidence in light of the circumstances of the crime. Id. If that examination only reveals a
“mere possibility” that the same motive that caused an earlier crime or act also caused the charged crime, there is not
a sufficient connecting link and the prior act is not relevant
to show the defendant’s motive. Id. at 174.
         In some instances, to demonstrate a defendant’s
motive, a substantial connection between the prior acts and
charged crime exists when the temporal proximity between
the two suggests a continuing hostility. State v. Hagner, 

, 

, rev den, 

 (2017).
We have previously held that a defendant’s prior acts of
angrily yelling at and physically assaulting the murder victim were relevant to show motive where both acts were committed within a week of the murder. Id. at 720-21. Where
the prior acts were thus “connected temporally” with the
charged crime, the jury could find that the defendant “had
been motivated by the same animosity when he fired the
fatal shot.” Id. at 721-22.
         There can also be a substantial connection between
the prior act and charged crime where the defendant specifically references the prior act while committing the charged
act. In State v. Blanscet, 

, 

 (2009), the defendant had recently been released from
prison for convictions of burglary, menacing, and interfering with a 9-1-1 call when the defendant returned to the
same victim’s home, pushed his way in, and assaulted her.

. Throughout the charged assault, the defendant “repeatedly referred to the fact that [the victim] had
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previously ‘snitched’ on him” as related to the prior acts.
Id. at 366. Based on that set of facts, we determined that the
fact that the defendant had been incarcerated twice on the
basis of the victim’s police reports did provide the defendant
a motive to commit the charged crimes. Id. at 369.
         In this case, in order that prior acts of strangulation could be relevant for the nonpropensity purpose of
motive, those acts must have some tendency to show that
defendant had a cause or reason to commit the charged
rape and assault. On this record, we determine that they
do not. Unlike in Hagner and Blanscet, the state has not
demonstrated that defendant’s prior assault of the same victim has any substantial logical link to the charged assault.
The strangulations of K in April 2015 and February 2016
occurred about 19 months and 8 months, respectively, prior
to the charged rape on October 25, 2016. There is no temporal proximity between the prior acts and charged crime
like the close proximity of a week’s time in Hagner. Unlike
in Blanscet, defendant did not reference the earlier assaults
during the conduct at issue. And here, the parallels between
the charged acts and the prior acts are lacking. The charged
violence grew out of an argument, which began with K’s
refusal to engage with defendant in sexual activity and culminated in sexual assaults. The nature of the arguments in
April 2015 and February 2016 were not described, and they
did not culminate in sexual assault. See State v. Tena, 

, 

 (2018) (rejecting other-acts evidence
of domestic violence against prior partners separated in time
and involving “other motives, such as disagreement about
child-care issues, the victim’s desire to work, and jealousy”).
         In sum, the state presented insufficient facts to
carry its burden to show motive as a nonpropensity justification. The mere occurrence of prior violence did not show
why defendant committed the charged acts—unless the
factfinder infers a simple and obvious propensity toward
violence. On this thin record and feeble justification, the evidence of the prior incidents was not admissible on a hostile
motive rationale.
        We reach a different conclusion as to the state’s
alternative rationale. Alternatively, the state argued that
318                                           State v. Phillips

the prior acts serve to rebut defendant’s claim that K consented to rough sex. The state argues that evidence of the
prior incidents tends to show that “it is unlikely that after
defendant strangled and beat her again that [K] would
willingly engage in sex of any kind, much less a ‘rape
fantasy.’ ” The trial court was persuaded, indicating that
“[t]he fact that these prior acts occurred, involved the police,
a restraining order and criminal charges is relevant to any
defense that the charged actions were consensual.”

         On that, we agree with the state and the trial court.
The factfinder does not need to engage in propensity-based
reasoning to infer that defendant’s prior violence toward K
may tend to make less probable her consent to rough sex in
a “rape fantasy.” In considering that history, the factfinder
is not drawing any conclusion about defendant’s character
and is only considering the potential that K, having twice
been abused, might tend to avoid recurring harm, especially
while inviting him into her home. A victim’s past experience
with a defendant can be relevant on the issue of consent. See
Blanscet, 

 (the defendant’s prior violence
against the victim tended to make more probably true her
testimony that she did not consent to rape, sodomy, or kidnapping); State v. Bartley, 

, 

, rev den, 

 (1993) (“The evidence of the sexual
relationship dating back to when the victim was only 11 or
12 years old helped explain to the jury why the victim might
act the way she did and yet still not consent to sexual intercourse with [the defendant].”). For that reason, the evidence
of the prior assaults, offered for that narrow purpose, is not
inadmissible propensity evidence of defendant’s character
under OEC 404(3).

         Because we have determined that evidence about
the prior incidents is relevant, as nonpropensity evidence,
for only one of two reasons urged by the state, we do not
reach the question whether the trial court abused its discretion under OEC 403 when determining whether its
probative value was substantially outweighed by the danger of prejudice. That consideration remains for the trial
court on remand, in light of the narrower purpose of that
evidence.
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         We are left with the question whether the trial
court’s error in admitting evidence of defendant’s other acts,
for one purpose but not another, was harmless. Evidentiary
error is harmless if there is little likelihood that the error
affected the verdict. State v. Lotches, 

, 

 (2000), cert den, 

 (2001) (relying on Article
VII (Amended), of the Oregon Constitution).
         Defendant argues that admitting evidence of the
prior strangulations was harmful because the evidence was
highly prejudicial, inflammatory, and as such created a risk
that the jury would convict defendant because he had a propensity toward domestic abuse. The state counters that evidence of the strangulations was ultimately harmless given
the strength of the other evidence of defendant’s guilt.
          The state’s argument focuses on the wrong inquiry.
Although there was certainly other incriminating evidence
introduced at trial, including the pretext phone call and text
messages between defendant and K, “when determining
whether the erroneous admission of evidence was harmless,
the question is not whether the state presented sufficient
other evidence to support a conviction.” Skillicorn, 

. “Instead, it is whether there is little likelihood that the
error … affected the verdict.” 

        Although the jury could have considered the prior
incidents on the issue of consent, it should not have considered that evidence on a theory of motive that carried
an inference of propensity. In closing argument, the state
recounted the evidence of the prior violence in April 2015
and February 2016, and the state argued that the prior incidents could be considered on the issues of intent, motive, and
consent. Similarly, the trial court instructed the jury that
they could consider the prior acts on those issues of motive
or consent. The jury could have considered that evidence for
the wrong purpose.
         We cannot conclude that there is little likelihood
that the error affected the verdict and that the admission
of the evidence regarding the earlier violence was harmless. Those prior acts related to a central issue in the case—
whether defendant strangled and otherwise assaulted K
320                                               State v. Phillips

without her consent in the charged instance. See State v.
Jones, 

, 

 (2017) (explaining that, “[i]f erroneously admitted evidence relates to a
central issue in the case, it is more likely that the error
substantially affected the verdict”). The prior acts were
used in a way that encouraged the jury to employ impermissible character-based reasoning. See Skillicorn, 

 (explaining that propensity evidence carries
the risk that the verdict will be based on unfair prejudice
and that the jury will overestimate the probative value of
the evidence). Because the evidence as used created a risk
that the prior acts would influence the jury in considering
the charges based on the events of October 25, 2016, we
conclude that the admission of the evidence was harmful
with regard to all of the counts on which defendant was
convicted.
         Finally, we address defendant’s pro se assignment of
error regarding hearsay, because the legal issue is likely to
arise again on remand. See State v. Savage, 

, 

 (2020) (explaining that, “[o]rdinarily,
we will consider issues likely to arise on remand when the
trial court … has determined a question of law that will
still be at issue after the case is remanded”). Defendant
argues that the trial court erred when it initially admitted,
under the hearsay exception contained in OEC 803(18a)(b),
evidence of K’s statements during the pretext phone call and
text messages between defendant and K. The state concedes
that the trial court erred when it determined that K’s out-ofcourt statements related to defendant’s abuse were admissible hearsay under OEC 803(18a)(b). We agree and accept the
state’s concession. In relevant part, OEC 803(18a)(b) allows
for the admission of a
   “statement made by a person concerning an act of abuse as
   defined in ORS 107.705 or 419B.005, a statement made by
   a person concerning an act of abuse of an elderly person,
   as those terms are defined in ORS 124.050, or a statement
   made by a person concerning a violation of ORS 163.205
   or 164.015 in which a person 65 years of age or older is the
   victim … if the declarant … testifies at the proceeding
   and is subject to cross-examination[.]”
However, OEC 803(18a)(d) clarifies that
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   “[t]his subsection applies to a child declarant, a declarant
   who is an elderly person as defined in ORS 124.050 or an
   adult declarant with a developmental disability.”
Inasmuch as K is not a qualifying declarant as provided in
OEC 803(18a)(d), the hearsay exception in OEC 803(18a)(b)
does not apply.8 For that reason, the trial court erred in ruling that the evidence at issue was admissible under that
exception.
        In sum, the prior acts evidence was potentially
admissible but for a narrower purpose than that for which it
was admitted; the ensuing question of admissibility of such
evidence remains for the trial court’s determination under
OEC 403; and K’s statements in the pretext call and text
messages were not admissible under OEC 803(18a)(b).
           Reversed and remanded.




   8
     We do not consider whether the evidence at issue would be admissible under
another hearsay exception on remand.