State v. Martinez

                                      48

  Argued and submitted January 29, reversed and remanded October 6, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              ROBERTO SANTIAGO MARTINEZ,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR03333; A171517
                                  

    Defendant appeals a judgment of conviction for one count of first-degree sexual abuse, ORS 163.427, resulting from alleged criminal conduct toward a minor
child, B. On appeal, defendant contends that the trial court erred in admitting
evidence regarding defendant’s abuse of a different minor child, C. Defendant
argues the trial court erred in admitting the evidence regarding defendant’s
abuse of C because it erroneously concluded that that evidence was relevant for
a nonpropensity purpose. Held: The other-acts evidence concerning defendant’s
conduct toward C was propensity evidence. Therefore, to the extent such evidence
was admissible, it was admissible as propensity evidence under OEC 404(4), not
as nonpropensity evidence under OEC 404(3). However, the Court of Appeals
understood the trial court to have admitted the evidence regarding defendant’s
abuse of C under OEC 404(3) as nonpropensity evidence. Therefore, the trial
court erred.
    Reversed and remanded.



    Theodore E. Sims, Judge.
   David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    TOOKEY, J.
    Reversed and remanded.
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        TOOKEY, J.
         Defendant appeals a judgment of conviction for one
count of first-degree sexual abuse, ORS 163.427, resulting
from alleged criminal conduct toward a minor child, B.
On appeal, defendant contends that “the trial court erred
in admitting evidence regarding defendant’s prior abuse of
[a different minor,] C.” In defendant’s view, the trial court
erred in concluding that the evidence regarding C was relevant for a nonpropensity purpose and, thereafter, admitting
that evidence. We agree with defendant that the trial court
erred. We reverse and remand.
          FACTS AND PROCEDURAL HISTORY
         The facts relevant to our analysis are undisputed.
Further, because the arguments on appeal largely concern
how we should understand the trial court’s ruling in light
of the arguments made to the trial court, we discuss those
arguments in some detail.
        In 2017, B, a child under the age of 14, was sleeping
in defendant’s daughter’s room. B reported to various individuals that, in the early morning, defendant had come into
his daughter’s room and touched B’s breasts.
         In 2019, defendant was indicted for one count of first-degree sexual abuse. The indictment alleged that defendant
“did unlawfully and knowingly subject [B], a child under 14
years of age, to sexual contact by touching her breast(s).”
        Defendant filed a pretrial motion in limine seeking
to exclude, among other evidence, “accusations of sex abuse
made against [defendant] that are separate and apart from
the accusations listed in the Indictment.” Defendant took
the position that any such evidence is “improper character
evidence under OEC 404” and that “the prejudicial effect
of such evidence outweighs any probative value and such
evidence would tend to confuse the issues and mislead the
jury.”
         The state’s trial memorandum argued for the admission of certain other-acts evidence. Specifically, it stated
that, in September 2018, defendant was arrested for sexually abusing a different victim, C. The memorandum further
50                                                      State v. Martinez

stated that defendant had entered a guilty plea to two counts
of first-degree sexual abuse with regard to C; that C was the
daughter of defendant’s cousin; that defendant would “come
around at night and sneak into [C’s] room”; that defendant’s
abuse of C progressed from touching to “oral, anal, and sexual intercourse”; that defendant’s abuse of C began when
C was around 11 years old; and that defendant’s abuse of
C culminated in C giving birth to a child, which defendant
“admitted that he was the father of.”
         The state argued defendant’s prior conduct toward
C was admissible “under OEC 404(3), 404(4) and State v.
Williams[, 

, 

 (2015)].”1 With regard to
OEC 404(3), under a heading titled “OEC 404(3) - Motive /
Sexual Inclination,” citing Williams, the state argued that
“[e]vidence of prior bad acts may be admissible to demonstrate a motive such as defendant’s sexual inclination
towards a particular victim, including minor children.” In
the state’s view, “[d]efendant’s prior sexual contact and convictions demonstrate defendant’s sexual inclination towards
young children and therefore a motive to act upon that sexual inclination.” Additionally, the state argued that defendant’s prior conduct “shows that defendant’s touching [B] on
the breasts[ ] was not a mistake or accident but in fact had a
sexual purpose.”
       With respect to OEC 404(4), under a heading titled
“OEC 404(4) Analysis,” the state argued,
     “Should the court find that 404(3) does not apply, the court
     should then assess the merits under [OEC] 404(4). Pursuant
     to Williams the Court must first determine relevancy and
     if relevant, engage in a balancing test under 403. The fact
     that defendant previously exhibited sexual interest in similar victims is logically relevant to that issue. A jury could
     infer from this evidence that defendant had a sexual interest in children generally, and it could take that interest
     into account when determining if defendant acted on that
     interest with regard to the charged offenses.”

    1
      The state’s trial memorandum also sought a ruling concerning the admission of two other categories of other-acts evidence—viz., evidence concerning potential uncharged conduct toward B and evidence concerning certain
uncharged conduct toward a different minor, F. The trial court’s rulings concerning that evidence are not at issue in this appeal.
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         Finally, in its conclusion, the state argued that “case
law supports OEC 403 admissibility of even highly prejudicial prior act evidence where such evidence is relevant to
some non-propensity purpose.”
         At a pretrial hearing, the state referred to defendant’s conduct toward C as “Williams evidence,” and argued
that the defendant’s conduct was admissible under OEC
“404(3) as evidence showing [defendant’s] motive and …
[that] he was actually doing the sexual touching for a sexual purpose.” The state also argued that, if the court was
not “inclined to find under [OEC] 404(3),” alternatively, the
evidence was admissible under OEC 404(4).
        At the pretrial hearing, defendant responded that
the evidence regarding C was irrelevant and, in any event,
was inadmissible under OEC 403.
         The trial court ruled:
       “[T]he evidence of the abuse [of C by defendant] is undeniable. He had a child born as a result of the type of conduct
   that’s alleged …. The State has an obvious need for it. I
   recognize that there’s a fair amount of prejudice in terms
   of the impact the evidence is likely to have on the jury, but
   I don’t think it’s going to distract them from their ability to
   focus on the conduct that’s alleged here.
       “In other words, I’m not concerned that they’re going to
   convict him of this absent evidence that he committed the
   alleged offense here because of prior incidences. I think the
   jury should be relatively sophisticated in that regard.
      “So on a 403 balancing test, I think the probative value
   exceeds the prejudicial effect. And I think there is a non-propensity need for the State to have this evidence in. So
   unless either side wants me to get into the 404 area, I don’t
   think I need to.”
(Emphasis added.)
        At defendant’s trial, B testified that, among other
conduct, defendant had touched her breasts while she was
sleeping at his house. C testified that she was related to
defendant; that defendant started inappropriately touching
C when she was 11 or 12 years old; and that C had a child
with defendant when she was 15 years old.
52                                              State v. Martinez

        During closing arguments, the prosecutor argued
that the jury should consider C’s testimony in determining
defendant’s intent with regard to B, that the jury should
“weigh in the [C] information and decide does [defendant]
have a sexual attraction to kids,” and that defendant’s conduct toward C “started in similar circumstances” to the conduct toward B.
         The jury returned a guilty verdict of first-degree
sexual abuse, and the trial court entered a judgment of conviction. Defendant now appeals.
                            ANALYSIS
        As necessary context for the parties’ arguments, we
provide a brief overview of the relevant legal setting.
          “Relevant evidence is generally admissible.” State v.
Levasseur, 

, 

, clarified and
adh’d on recons, 

, 

 (2021) (citing
OEC 402). OEC 404(3) and OEC 404(4) concern the admissibility of other-acts evidence. 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.”

         “ ‘Character’ ” for purposes of evidence law “ ‘means a
person’s disposition or propensity to engage or not to engage
in certain types of behavior.’ ” State v. Skillicorn, 

, 

 (2021) (quoting Laird C. Kirkpatrick,
Oregon Evidence § 404.03, 213 (7th ed 2020)). Thus, “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.’ ” Levasseur, 

 (quoting Skillicorn, 

). “Other acts evidence
is not admissible under OEC 404(3) under … any … theory of relevance[ ] to allow a party to argue propensity.” Id.
at 752-53. Put another way, propensity evidence is “barred
by OEC 404(3), even if the proponent asserts that it is being
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offered to prove, for example, ‘intent’ or ‘absence of mistake
or accident.’ ” Skillicorn, 

 (quoting OEC 404(3)).
         “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.’ ”
Levasseur, 

 (quoting Skillicorn, 

; brackets omitted). “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).” 

         Notwithstanding OEC 404(3), “[i]n criminal cases,
OEC 404(4) makes other acts evidence admissible to prove a
defendant’s character, subject to specified rules of evidence
and the state and federal constitutions.”2 State v. Baughman,

, 

 (2017) (emphasis in original). That is because, although “OEC 404(3) bars propensity evidence, … OEC 404(3) has been superseded by OEC
404(4) in criminal cases, except as otherwise provided by
the state or federal constitutions.” Skillicorn, 

n 2.
         When a trial court rules that other-acts evidence
is relevant and admissible under either OEC 404(3) or
OEC 404(4), the trial court “must conduct balancing under
OEC 403, according to the terms of that rule, to determine
whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice.”3 State v.
Mazziotti, 

, 

 (2017).
   2
     OEC 404(4) provides:
       “In criminal actions, evidence of other crimes, wrongs or acts by the
   defendant is admissible if relevant except as otherwise provided by:
       “(a) ORS 40.180, 40.185, 40.190, 40.195, 40.200, 40.205, 40.210 and,
   to the extent required by the United States Constitution or the Oregon
   Constitution, ORS 40.160;
       “(b) The rules of evidence relating to privilege and hearsay;
       “(c) The Oregon Constitution; and
       “(d) The United States Constitution.”
   3
     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.”
54                                              State v. Martinez

        In Baughman, 361 Or at 403, the Supreme Court
“review[ed] the analytical framework that a trial court
should use to assess the admissibility of other acts evidence.”
Under that framework,
         “When a party objects to the admission of other acts
     evidence, a trial court first should 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. However, if
     a trial court determines that proffered evidence is not relevant for a nonpropensity purpose, then it must determine
     whether that evidence nevertheless is otherwise relevant
     under OEC 404(4) and, at step two, whether the probative
     value of the evidence is substantially outweighed by the
     danger of unfair prejudice, under OEC 403.”
Id. at 404-05. The court went on to explain,
         “A trial court’s decision, at step one, about whether
     other acts evidence is relevant for a nonpropensity purpose,
     will have a significant effect on whether the trial court
     admits that evidence at step two. At one end of the spectrum, other acts evidence that is relevant for a nonpropensity purpose under OEC 404(3) generally will be admissible
     under OEC 403 as long as the particular facts of the case
     do not demonstrate a risk of unfair prejudice that substantially outweighs the probative value of the evidence. At the
     other end of the spectrum, when evidence is relevant only
     to prove a defendant’s character, more significant due process concerns are implicated, and, generally, the danger of
     unfair prejudice will substantially outweigh the probative
     value of the evidence.”
Id. at 405 (internal citation omitted).
        Under Baughman, it is error for a trial court to
admit other-acts evidence under OEC 404(3) when that
other-acts evidence is not relevant for a nonpropensity purpose. See Levasseur, 

 (“The state’s theory
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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. … Defendant’s prior crimes
and convictions are not admissible under OEC 404(3)
under the state’s theory of relevance—to show sexual purpose.”); see also Baughman, 

 (“In this case, the
trial court erred in admitting the evidence of defendant’s
abuse of A for what it considered to be three nonpropensity
purposes.”).

          With that legal context in mind, we turn to the
parties’ arguments. On appeal, defendant argues that “purported evidence of ‘sexual purpose’ drawn from prior acts
with unrelated victims,” i.e., evidence of defendant’s conduct
with regard to C, “is merely propensity evidence.” In defendant’s view, that is so because an “inference that a defendant who has been attracted to children in the past must
therefore have had a sexual purpose in conduct with a particular child on a subsequent occasion is based entirely on
propensity—the inference cannot be logically drawn unless
it is assumed that defendant acted on his propensity in both
instances.” Thus, defendant argues, “contrary to the trial
court’s finding in this case, the sexual purpose evidence”—
that is, the evidence of defendant’s conduct with regard to
C—“was propensity evidence [because] its only logical basis
for relevance required an inference of sexual purpose based
on defendant’s alleged propensity.” Consequently, in defendant’s view, “[t]he trial court erred in concluding … that
the evidence was not propensity evidence under Baughman’s
first step, and reversal is required.”

         In response, the state acknowledges that defendant’s
abuse of C was “propensity evidence,” in the sense that “it
was offered to support an intermediate inference that defendant had a sexual interest in children, which in turn was
relevant to the jury’s determination whether he possessed
the requisite culpable mental state for the charged offense.”
However, pointing to various aspects of its argument in the
trial court as support, including its reliance on Williams, the
state contends that “[t]he court implicitly concluded that,
under OEC 404(4), the evidence was relevant and admissible
56                                         State v. Martinez

propensity evidence.” Thus, in the state’s view, “[t]he trial
court correctly admitted the evidence under OEC 404(4) as
relevant to proving that defendant had the requisite culpable mental state for the charged offense.”
         Having described the parties’ arguments, one point
regarding the state’s argument on appeal bears highlighting: Although the state argued in the trial court that the
evidence regarding C was admissible under either OEC
404(3) or OEC 404(4), on appeal it takes the position that the
evidence regarding C is “propensity evidence,” and it does
not contend such evidence would be admissible under OEC
404(3). Instead, in arguing the evidence regarding C was
admissible other-acts evidence under OEC 404, on appeal
the state relies solely on OEC 404(4).
         To start our analysis, we note that we agree with
the position taken by both parties on appeal that the other-acts evidence concerning defendant’s conduct toward C was
“propensity evidence.” See, e.g., Levasseur, 

 (“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.”). Therefore, to the extent
such evidence was admissible, it was admissible as propensity evidence under OEC 404(4), not nonpropensity evidence
under OEC 404(3).
         We also understand, however, contrary to the state’s
view, that the trial court admitted the evidence regarding C
under OEC 404(3) as nonpropensity evidence. In our view,
in context, that is the only plausible understanding of the
trial court’s statement that there was a “non-propensity
need” for the state to present such evidence. That understanding is reinforced by the state’s arguments to the trial
court—both in its briefing and at the pretrial hearing—that
the evidence regarding defendant’s conduct toward C was
admissible under OEC 404(3) to demonstrate, among other
things, defendant’s motive.
        Having determined that the evidence regarding
defendant’s conduct toward C was admitted by the trial
court under OEC 404(3), we conclude that the trial court
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erred. See Baughman, 

 (“An appellate court
reviews a trial court’s determination of whether proffered
other acts evidence is relevant for a nonpropensity purpose
under OEC 404(3) for errors of law.”). As set forth above, we
agree with the parties that the other-acts evidence concerning defendant’s conduct toward C was “propensity evidence.”
And, as noted above, it is error for a trial court to admit
propensity evidence under OEC 404(3). Skillicorn, 

.
         In contending that we should reach a contrary conclusion regarding the trial court’s ruling in this case, as
noted above, the state argues that the trial court “implicitly” concluded that the evidence was relevant and admissible propensity evidence under OEC 404(4). As support for
that argument, the state points to its reliance on Williams
in the trial court and its use of the phrase “Williams evidence” to describe defendant’s conduct regarding C.
         In Williams, the Supreme Court concluded that “the
legislature intended OEC 404(4) to supersede OEC 404(3) in
criminal cases, except, of course, as otherwise provided by
the state or federal constitutions,” and that in cases involving charges of child sexual abuse, “ ‘other acts’ evidence to
prove character and propensity” may be admissible under
OEC 404(4), depending on “whether the risk of unfair prejudice outweighs the probative value of the evidence under
OEC 403.” 

; see also Skillicorn, 

n 2 (so stating).
         The challenge with the state’s argument is that,
as described above, in its trial memorandum, the state
relied on Williams in its discussion of both why the evidence
regarding C was admissible under OEC 404(3) and its discussion of why the evidence regarding C was admissible
under OEC 404(4). And at the pretrial hearing, although
the state referred to evidence regarding defendant’s conduct
vis-à-vis C as “Williams evidence,” it went on to argue that
such evidence was admissible under both OEC 404(3) and
OEC 404(4). Thus, the state’s reliance on Williams and reference to “Williams evidence” in the trial court does not suggest to us that the trial court admitted the evidence regarding C “implicitly” under OEC 404(4), as the state contends;
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the state relied on Williams in the trial court when discussing both OEC 404(3) and OEC 404(4).
         The state also argues that the trial court’s reference to the state’s “non-propensity need” for the evidence
regarding C “does not indicate that it mistook propensity
evidence for nonpropensity evidence.” The state posits that
“[t]here is no dispute that the trial court understood that
the state was offering the other-acts evidence concerning
defendant’s abuse of C to prove defendant’s peculiar sexual
interest and, in turn, his sexual purpose when he touched
[B].” The state contends that the trial court’s reference to a
“non-propensity need” for the evidence “employed the ‘non-propensity purpose’ label used in Baughman to describe
the purpose underlying other-acts evidence offered to prove
culpable mental state (called ‘intent’ in Baughman).” The
state argues that “the kind of propensity evidence at issue
in this case is not prohibited by the traditional propensity
rule, which forbids other-acts evidence offered for no purpose other than to show a defendant’s general bad or evil
character.”
         As we understand it, the state’s argument is that,
even though the evidence regarding C was “propensity” evidence, it was offered for a “nonpropensity purpose”—i.e., to
prove a culpable mental state—and was therefore admissible under OEC 404(4) and OEC 403, and that that is what
the trial court was communicating when it referenced the
state having a “non-propensity need” for the evidence concerning defendant’s conduct regarding C.
        We think that argument is untenable. The evidence regarding C was offered to prove that defendant has
a propensity to engage in certain types of conduct and that
defendant acted in conformance with that propensity when
engaging in conduct vis-à-vis B. The evidence regarding C
was propensity evidence because “the state’s theory of relevance involved propensity reasoning.” Skillicorn, 

. It was thus offered for a propensity purpose, notwithstanding the label given to it by the state. See State v.
Tinoco-Camarena, 

, 

 (2021)
(“[W]hen admitting evidence under a motive theory of relevance, courts must be on guard to prevent the motive label
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from being used to smuggle such forbidden evidence of propensity to the jury.” (Internal quotation marks omitted.)).4
         Having determined that the other-acts evidence
concerning defendant’s conduct toward C was propensity
evidence, and that the trial court admitted the evidence as
nonpropensity evidence under OEC 404(3), we conclude that
the trial court erred.
         On appeal, defendant further argues that the trial
court’s error was not harmless. The state does not address
harmlessness. We agree with defendant that the error in
this case was not harmless. Baughman, 

 (“We
cannot conclude that ‘there is little likelihood’ that the evidence that defendant not only sexually abused B, but also
abused A, affected the jury’s verdict.”).
         Therefore, we reverse and remand. On remand, we
leave it to the trial court to determine “whether, after conducting a correct analysis under OEC 404 and OEC 403,
other acts evidence should again be received and whether a
new trial is required or appropriate.” Baughman, 

.
           Reversed and remanded.




    4
      To be sure, assuming the evidence regarding C is relevant under OEC
404(4), it may perhaps be admissible after appropriate balancing under OEC
403, but that is an issue for the trial court to decide in the first instance. That
the evidence regarding C may be highly probative regarding whether defendant
acted with a culpable mental state, as we understand the state to argue, is part
of that necessary OEC 403 balancing that the trial court must undertake. See
OEC 403 (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice ….”).