State v. Taylor

                                     608

 Argued and submitted March 10, 2020; affirmed November 17, 2021; petition
for review allowed in part, limited to first question presented—as to that issue,
  decision of Court of Appeals vacated, case remanded to Court of Appeals for
  reconsideration in light of State v. Jackson, 

, 

 (2021),
                           April 21, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    KEVIN LAVIN TAYLOR,
                     aka Kevin Lavan Taylor,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      17CR26979; A168298
                                   

    In this criminal appeal, defendant contests his conviction of third-degree
sexual abuse. On appeal, defendant argues that the trial court erred by admitting certain other-acts evidence. Specifically, defendant contends that security
camera video of an encounter with an unknown victim, taken shortly before the
charged act, was not relevant for any nonpropensity purpose and should have
been excluded under OEC 404(3). Held: Given the many similarities between the
earlier encounter and the charged conduct, the challenged evidence was probative of both defendant’s plan to sexually abuse a woman on that day and defendant’s related mental state. Thus, the court did not err in concluding that the
evidence was relevant for a nonpropensity purpose and admitting it on that basis.
    Affirmed.



   Benjamin N. Souede, Judge.
   David Sherbo-Huggins, 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.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   DeHOOG, J.
   Affirmed.
Cite as 

 (2021)                                                  609

            DeHOOG, J.
         In this criminal appeal, defendant contests his conviction for third-degree sexual abuse. In a single assignment of error, defendant argues that the trial court erred in
admitting, under OEC 404(3), other-acts evidence depicting
defendant’s encounter with a woman other than the victim
of his sexual-abuse charge shortly before his encounter with
the victim. For the reasons that follow, we conclude that the
trial court did not err in admitting the challenged evidence
as probative of defendant’s plan and related mental state.
Accordingly, we affirm.
         We review a trial court’s determination of relevance
under OEC 401 for errors of law. State v. Stockton, 

, 

 (2021). We likewise review a trial
court’s determination that other-acts evidence is relevant
and admissible under OEC 404(3) for legal error. 

 In this
case, the trial court ruled that the challenged evidence was
relevant and admissible under OEC 404(3) during a pretrial
hearing on defendant’s motion in limine; thus, our review is
limited to the record that was before the trial court at that
time. See State v. Warren, 

, 

,
rev den, 

 (2018). We state the facts accordingly.
         One afternoon, J, the victim in this case, was studying on the first floor of the library at her community college. While J was seated at a large table divided into study
carrels, a man later identified as defendant sat down next
to her. After seating himself, defendant “slowly encroached
upon [J’s] space,” causing her to respond by “stomp[ing] on
his foot at one point.”1 Even after J asserted her personal
space in that manner, the encroachment continued, and,
ultimately, “[J] felt [defendant’s] hand reach under [the
desk] and touch [J’s] vagina, sort of around the pubis.” J
stood up, gathered her books, and moved to a different table.
A few minutes later, J texted a friend about the touching,
and, after an exchange of messages, she reported the incident to a librarian and campus security.
        Before trial, defendant sought to preclude the state
from showing the jury video footage recorded by a security
   1
       At trial, J further described defendant’s conduct as “man spreading.”
610                                                         State v. Taylor

camera on another floor of the library shortly before his
encounter with J. According to defense counsel, the video
would show
    “that [defendant] went upstairs. He selected a book. He sat
    down in a cubicle next to a woman. He got up and then
    went back. And then over the course of about 30 minutes,
    his leg extended over towards the woman and then was
    near the woman for a while. And then she got up and left.
        “And then a couple minutes later, [defendant] got up and
    left and then he walked downstairs and he sat down next to
    [J].”
         Defendant denied having had any contact with the
woman shown on the video. Although the state was apparently unable to identify that person as a potential witness,
the state charged defendant with third-degree sexual
abuse and harassment related to the upstairs encounter.
Defendant waived his right to a jury trial on those charges
and, following a bench trial, was acquitted of those offenses.
        As for the charges related to J, defendant asserted
that, because he had waived jury as to the charges arising
from the upstairs incident, the security footage of that incident was not relevant to any charge being tried to the jury.
Defendant further contended that the jury would be confused by the challenged video evidence because “[it] doesn’t
show any crime has been committed” and, thus, should be
excluded as unfairly prejudicial under OEC 403.2 Finally,
defendant argued that the evidence was “pure propensity”
evidence and should be excluded under OEC 404(3).
        The state countered that the video was relevant
to establish defendant’s mental state, specifically to show
that defendant had knowingly or intentionally subjected

    2
      Contrary to counsel’s apparent understanding, the admissibility of other-acts evidence does not depend on whether the other acts were themselves criminal. See OEC 404(3) (permitting admission of “[e]vidence of other crimes, wrongs
or acts” for various purposes other than “to prove the character of a person in
order to show that the person acted in conformity therewith,” including such
things as “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident” (emphasis added)). Defendant does
not reprise that argument on appeal, nor does he contend that, to the extent that
the disputed evidence was relevant, the video was subject to exclusion under OEC
403 for any other reason.
Cite as 

 (2021)                                                611

J to sexual contact. The state noted that the video recording depicted conduct consistent with the behavior that J
had described defendant engaging in with regard to her,
namely, defendant (1) wandering through the same library
on the same day; (2) choosing—from among other available options—an empty seat next to a woman who, like J,
was seated alone at a table divided into study carrels; and
(3) gradually spreading out his legs to the point that they
extended into the woman’s personal space.3 Given those
similarities, the state argued that the video was relevant to
prove that defendant had engaged in knowing conduct with
respect to J, because it suggested that his contact with her
had not been a mistake, demonstrated defendant’s motive in
approaching J, and reflected defendant’s plan and preparation in approaching each of the women in the library.
        After reviewing the video, the court concluded that
it was admissible, stating:
       “Having watched the video confirmed my earlier inclination. I find that the video is relevant and is relevant for
    a nonpropensity purpose, for purposes, that is, to prove
    motive, plan, preparation and … absence of mistake.
        “…
        “[T]he motive part being to be seated close enough to
    a woman sitting alone to allow for, at the very least, putatively incidental touching and potentially would allow for
    more than incidental touching.”
        At trial, the state played the challenged video
recording before the jury during its case-in-chief and while
cross-examining defendant. The jury ultimately found defendant guilty of third-degree sexual abuse, ORS 163.415.
Defendant appeals the resulting conviction, assigning error
to the admission of the video recording of the upstairs
encounter.
        On appeal, defendant argues that the video evidence was not relevant for any of the purposes advanced by
the state and that its admission at trial was harmful. In
response, the state primarily argues that the challenged
    3
      Defendant did not (and does not) dispute the state’s characterization of what
the video recording depicts or the overall similarities between the encounters.
612                                            State v. Taylor

video was relevant to show that defendant had a plan to
commit sexual abuse in the library at the time of the
charged crime, and that, as evidence of defendant’s plan,
the challenged evidence was also probative of defendant’s
motive and the absence of any mistake on his part—in other
words, that defendant acted pursuant to that plan.
          Under OEC 404(3), “[e]vidence of other crimes, wrongs
or acts is not admissible to prove the character of a person to
show that the person acted in conformity therewith.” Other-acts evidence may, however, be admitted “for other purposes,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”

 As has often been said, OEC 404(3) is an inclusive—rather
than exclusive—rule of evidence, meaning that other-acts
evidence may be admissible “so long as it is relevant for any
purpose other than to prove propensity.” State v. Turnidge
(S059155), 

, 

 (2016), cert den,
___ US ___, 

 (2017). That is, the admissibility
of other-acts evidence is not controlled by the relationship of
the evidence to one of OEC 404(3)’s enumerated purposes;
rather, its admissibility turns on whether it is relevant to a
fact at issue in some way other than proving a propensity to
commit certain acts. State v. Pitt, 

, 

 (2012). Notably, however, evidence that is admissible
under OEC 404(3) remains subject, upon request, to OEC
403 balancing of its probative value against its potential for
unfair prejudice and other concerns. See State v. Baughman,

, 

 (2017).
        As noted, the state argues that the challenged evidence was properly admitted by the trial court for the nonpropensity purpose of proving a plan. Specifically, the state
contends that the video evidence of defendant sitting next to
another woman and engaging in “protracted man spreading
with his legs” to the point of physical contact demonstrates
that he had engaged in a “kind of preparatory step or trial
run before engaging in the charged conduct” towards J.
         Plan, which is an established theory of admissibility for other-acts evidence under OEC 404(3), is further
divided into two categories: Evidence either may tend to
show that a person acted pursuant to a “true plan,” or it
Cite as 

 (2021)                                               613

may reflect a “spurious plan.” Turnidge, 

. In
a true-plan scenario, the other-acts evidence is offered to
“show that the defendant in fact and in mind formed a plan,
including the charged and [other acts] as stages in the plan’s
execution.” 

 (internal quotation marks and some brackets
omitted). In contrast, evidence of a spurious plan consists
of other-acts evidence “offered to show that a defendant
engaged in a pattern or systematic course of conduct from
which the existence of a plan is to be inferred.” 

 (emphasis
in original).4

         We understand the state’s argument to focus on the
true-plan rationale. The facts of Turnidge illustrate that
rationale. In Turnidge, the Supreme Court concluded that
evidence of a 1995 bomb threat qualified as true-plan evidence under the state’s theory that the bomb threat was a
trial run for the later 2008 bombing that gave rise to the
defendant’s charges. 

. The challenged other-acts
evidence in Turnidge consisted of testimony that, in 1995,
the defendant had made a bomb threat to a local bank and
directed the teller to take $50,000 to an outhouse located at
a construction site near the bank. 

. From a vantage point at a nearby restaurant, the defendant and the
witness had been able to observe the manner in which the
police responded to the bank and examined the outhouse.

 Even though the previous act and the charged acts had
occurred 13 years apart, the relationship that they seemed
to bear—including that both had occurred in the same small
town of Woodburn, both had been located conveniently close
to Interstate 5, and both had involved threatening phone
calls and specific instructions to bank tellers—supported
the inference that the defendant’s earlier conduct had been
a trial run that enabled him to gauge the likely response
by law enforcement and bank personnel; that is, the defendant’s earlier conduct was logically probative of a true plan

     4
       One commentator who, as discussed below, is skeptical of the admission of
other-acts evidence to prove something other than a “true” plan finds support for
his skepticism in the term “spurious,” which he understands other commentators to use as a pejorative. See Edward J. Imwinkelried, Uncharged Misconduct
Evidence § 3:23 (2021). While we do not dispute that understanding of the scholarly literature on the subject, we do not necessarily view the Supreme Court’s use
of the term “spurious” as reflecting similar skepticism.
614                                                           State v. Taylor

to commit the charged offenses, of which the 1995 bomb
threat had been a preparatory step. Id. at 440-42.
         The state argues that, as in Turnidge, the video footage of defendant’s earlier encounter with the woman on the
upper floor of the library depicts a “preparatory step” or “trial
run” undertaken as part of defendant’s plan to assault J.
However, citing State v. Brown, 

, 

 (2007), the state alternatively argues that defendant’s
upstairs encounter “suggested that the charged act was
the completion of a crime that defendant had been pursuing immediately beforehand.” We turn to the facts of Brown
before deciding whether evidence of the earlier encounter
was admissible to establish a “true plan.”
         In Brown, the defendant appealed his conviction
for aggravated murder, contending that the trial court had
erred in admitting evidence of a plan and aborted attempt
to rob and kill one drug dealer a few days before the defendant engaged in the charged conduct, which involved robbing and killing two other drug dealers. 

. We
concluded that the evidence was properly admitted. 

. We explained that the evidence “allow[ed] an inference
that the murders …, which were consistent with that plan,
were the completion of a crime that defendant had been
planning and pursuing in the days immediately before the
murders.” 

 Specifically, the challenged evidence in Brown
demonstrated the full plan to “target drug dealers and to
leave no witnesses behind.”5 

. That evidence of a
full plan from the previous episode allowed a noncharacter
inference that the “defendant had a scheme similar to the
crimes that actually occurred and was preparing to carry
out that scheme.” 

. More specifically, we explained
that the evidence showed that the defendant “was engaged
in a plan to rob and murder a particular type of victim to
get money and drugs, took steps to prepare for those crimes,
possessed a firearm for use in such a crime, and continued
    5
       The challenged evidence in Brown consisted of testimony claiming that the
defendant, the witness, and a third person had agreed to rob and murder a marijuana dealer. Brown, 

. In the course of carrying out the plan to
go to the marijuana dealer’s apartment, knock on the door, and “go[ ] in shooting,”
the defendant discovered that the marijuana dealer did not have anything worth
stealing and instead simply went home. 

Cite as 

 (2021)                            615

to adhere to the plan after abandoning pursuit of his original target[.]” Id. at 339.

         We are not persuaded that the evidence of defendant’s earlier conduct is admissible as true-plan evidence
under either a “preparatory step” or a “completion of a
crime” theory. Unlike in Turnidge, here, there is no nonspeculative basis to infer that defendant stood—or at least
hoped—to learn something from his conduct with the woman
upstairs that would inform and assist him when he sexually
assaulted J a short time later. In Turnidge, the defendant
was able to determine the likely institutional responses of
law enforcement agencies and banking officials; responses
that often are governed by institution-wide policies and may
well remain consistent over time. Here, on the other hand,
the purported targets of defendant’s behavior were individual persons, and each could have responded to his uninvited
approach in any number of different ways, none of which
would have helped defendant predict how the other would
respond under the same circumstances. Cf. State v. Leistiko,

, 

 (2012) (reasoning that the fact
“that one woman consented (or refused to consent) to have
sexual relations with [the] defendant does not mean that
another woman made the same choice”). Thus, we conclude
that the evidence does not qualify as plan evidence under a
“preparatory step” or “trial run” theory.

         Further, we do not find our opinion in Brown particularly relevant here, where there is no direct evidence that
defendant’s behavior around the first woman was itself in
pursuit of a plan. See 

 (describing the
defendant’s abandoned plan to rob and murder a marijuana
dealer). Although there are certainly similarities between
the two encounters in this case that might suggest a common objective—i.e., a spurious plan, as we discuss below—
nothing here is comparable to the evidence in Brown, where
the completed crimes were shown to be the culmination of
an explicit plan that began with the abandoned attack on
a penurious marijuana dealer. Thus, nothing we said in
Brown persuades us that the video footage in this case was
admissible as true-plan evidence under a “completion of a
crime” theory either.
616                                                         State v. Taylor

          That does not end our inquiry. Although the state
does not emphasize a spurious-plan theory in support of the
trial court’s ruling,6 the court did not specify which theory, if
either, it was relying on when it admitted the security-video
evidence over defendant’s objection. Moreover, as noted, the
question whether evidence is relevant and admissible under
OEC 404(3) is a legal question based on the record established at the motion hearing. Thus, we proceed to consider
whether the disputed video evidence qualified for admission
as evidence of a spurious plan.
         As the Supreme Court explained in Turnidge,
spurious-plan evidence is evidence that a person has engaged
in a series of similar acts and is “offered to establish [a]
plan or design to commit those acts.” 

 (citing
Leistiko, 

 n 13). Discussing one commentator’s
view of the principle, the court further explained that such
evidence is used
   “to prove a plan or design aimed to show a precedent design
   that in turn shows, by probability, ‘ “the doing of the act
   designed.” ’ [Leistiko,] 352 Or at 188 (quoting [John Henry]
   Wigmore, 2 Evidence § 304[,] 249 [Chadbourne rev. 1979]).
   In Wigmore’s view, to be logically relevant to prove [the
   existence of a plan or design], the proponent must show not
   only a similarity between the prior act and the charged act,
   but also ‘such a concurrence of common features that the
   various acts are naturally to be explained as caused by a
   general plan of which they are the individual manifestations.’ 352 Or at 188 (citing Wigmore, 2 Evidence § 304 at
   249 (emphasis from Leistiko omitted)).”
Turnidge, 

. The court acknowledged, as it had
in Leistiko, that a second commentator advocated a “slightly
different view” than Wigmore did, and would require, before
using “prior bad acts evidence” in that manner, that the
evidence be “sufficient to establish a modus operandi.”7 

    6
      Defendant characterizes the state’s argument on appeal as only relying on
a spurious-plan theory. As our above discussion indicates, we do not understand
the state’s argument to be limited in that way. Indeed, as noted, we understand
the state’s primary argument to be based on a true-plan theory under Turnidge
and Brown.
    7
      In State v. Johnson, 

, 

 (1992) (SA Johnson), the
Supreme Court held that, for prior-acts evidence to be admissible to establish
a modus operandi (also known as a “signature crime”) probative of identity, the
Cite as 

 (2021)                                                 617

(discussing Edward J. Imwinkelried, Uncharged Misconduct
Evidence § 3:24 (2009)). “Otherwise, the evidence is ‘vulnerable to the claim that the prior bad acts are merely propensity evidence.’ ” Turnidge, 

 (quoting Leistiko’s
acknowledgement of Imwinkelried’s concerns).
          The Turnidge court noted that it had ultimately
been unnecessary in Leistiko “to decide between Wigmore’s
[and] Imwinkelried’s views, because both sources required
… ‘something more than the similarity required for other
crimes evidence to be admissible to prove intent … for
it to be admissible to prove a plan.’ ” 

 (quoting Leistiko, 

). Since the court in Leistiko
had already concluded that the disputed evidence in that
case was not admissible to prove intent, there was no need
to determine what further showing the court would have
required for the evidence to be admissible to prove the existence of a plan. 

         Here, on the other hand, we must determine
whether the disputed evidence is sufficiently similar to
the charged encounter for it to be admissible as evidence
of a plan. Before undertaking that inquiry, we must make
the choice between Wigmore and Imwinkelried that the
Supreme Court left for another day in its Leistiko decision.
For the reasons briefly set out below, we conclude that the
state was not required to satisfy the heightened standard
associated with Imwinkelried and applicable to modus operandi evidence to gain admission for the other-acts evidence
at issue in this case.
         Our rationale for rejecting that standard—at least
as to the evidence at issue in this case—is quite simple.
Unlike modus operandi evidence, and unlike some plan evidence, the evidence at issue here was not offered to establish

state had to establish “by a preponderance of the evidence that there is (1) a very
high degree of similarity between the prior and charged misconduct, and (2) a
distinctive nature of the methodology of prior and charged misdeeds.” (Footnote
omitted; emphasis in original.) In concluding that the state had not met its burden, the court acknowledged one distinctive similarity (the use of a telephone
cord as a ligature to murder the victim) but held that, in light of the large number of dissimilarities between the two murders, the state had not “establish[ed] a
methodology that is so distinctive as to support a rational inference of a signature
crime.” 

.
618                                                            State v. Taylor

defendant’s identity as the person who assaulted J; the
identity of the alleged perpetrator was not disputed. As we
understand the state’s theory of admissibility, it viewed the
other-acts evidence to be probative of what defendant was
doing when he encountered J and why he was doing it, i.e.,
what his purpose was in carrying out the encounter.8
          When the state offers other-acts evidence to establish the identity of an unknown perpetrator, our courts
require that the two acts be both very similar and highly
distinctive, because it is the unique character of the repeated
behavior that tends to show that the same person committed both acts. See State v. Johnson, 

, 

, cert den, 

 (2006) (“[I]f evidence of prior
crimes is to be admitted to prove identity based on modus
operandi, the trial court must find a very high degree of
similarity between the charged and uncharged crimes, as
well as a methodology that is highly distinctive.”); State v.
Johnson, 

, 

 (1992) (the distinctiveness of the conduct must be such that “the methodology
is attributable to only one criminal, that is, the methodology
is [sufficiently] distinctive so as to earmark the acts as the
handiwork of the accused”).9
         Where, on the other hand, the identity of the perpetrator is known, the other-acts evidence is not required to
carry such a heavy burden. That is, the jury need not be persuaded that, given the distinctive quality of two acts, they
can only have been committed by the same person. Where
the jury is not being asked to draw that inference, there is no
reason to require that the two acts be similar and distinctive
    8
      We recognize that Wigmore appears to distinguish both uses of spurious-plan evidence from evidence used to prove intent. See California v. Ewoldt, 7 Cal
4th 380, 394 n 2, 

 (1994) (discussing 2 Wigmore, § 300 at 238; § 410
at 477, and distinguishing between plan evidence used to prove identity and that
used to prove that the defendant did the thing alleged). We see no reason, however, that evidence that a person acted in accordance with a plan would not also
be probative of the person’s objective in carrying out that plan, i.e., the person’s
intent. Thus, even if the state must lay a different foundation for the evidence
to be admissible as spurious-plan evidence, the resulting evidence may well be
relevant to prove intent or another mental state.
    9
      To avoid potential confusion, we refer to State v. Johnson, 

, 

, cert den, 

 (2006), as “MA Johnson” and State v. Johnson,

, 

 (1992), as “SL Johnson.” Those cases involved different
defendants and were decided 14 years apart.
Cite as 

 (2021)                                  619

enough to support it. Here, where the desired inference is
that, when defendant engaged in similar courses of conduct,
he was doing so pursuant to a common plan, it should be sufficient that the two acts be similar enough to support that
inference. See MA Johnson, 

 (“[W]hen prior
crime evidence is admitted to prove intent, this court has
indicated that a high degree of similarity is helpful but is
not essential, and that a distinctive methodology is entirely
irrelevant.”); 

 (requiring only that other-acts evidence be such that it “would support the narrow inference
that the state seeks to draw from it”).
         In a case such as this one, where a jury is being
asked to draw the inference that a defendant carried out
two encounters pursuant to a common plan—and arguably
a common purpose—we conclude that the standard articulated in Wigmore and discussed in Leistiko should apply.
See Leistiko, 

 (discussing Wigmore and MA
Johnson, 

, and noting distinction between
evidence admitted to prove intent and that used to establish modus operandi); see also Imwinkelried, Uncharged
Misconduct Evidence § 3:26 (discussing California Supreme
Court’s decision in California v. Ewoldt, 7 Cal 4th 380,

 (1994), and noting one scholar’s suggestion
that, although Ewoldt dialed back the California Supreme
Court’s earlier prohibition against spurious-plan evidence,
that case could be understood to apply less stringent test
to plan evidence offered only to prove that a defendant did
the charged act while retaining the more stringent modus
operandi standard for evidence used to prove identity).
      And, as the Supreme Court explained in Leistiko,
Wigmore would apply the following standard:
       “Wigmore reasons explicitly, as [MA] Johnson did
   implicitly, that a pattern of prior similar acts may be
   admissible to prove a plan or design. Wigmore, 2 Evidence
   § 304 at 249; [MA] Johnson, 

. … As
   Wigmore explained, in order to infer a plan or design from
   prior similar acts, the proponent of the evidence must show
   “not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally
   to be explained as caused by a general plan of which they are
   the individual manifestations.” Wigmore, 2 Evidence § 304
620                                                           State v. Taylor

    at 249 (emphasis in original); cf. [MA] Johnson, 

 (explaining that the prior bad acts evidence in that
    case established a greater connection than that required to
    prove intent but less than that required to establish modus
    operandi).”

Leistiko, 

. Further, although the court in
Leistiko indicated that the degree of similarity required to
admit spurious-plan evidence for any purpose was greater
than that required for purposes of proving intent, two things
are noteworthy. One, the court did not identify any particular degree of similarity for admitting prior-acts evidence
to prove intent. And, two, “intent” in that context may well
have been something other than intent within the specific
meaning of OEC 404(3). As the court recognized in Leistiko,
“Wigmore used the word ‘intent’ broadly.” Leistiko, 

 n 9.10
         Thus, to determine whether the evidence of defendant’s conduct with each of the two women was sufficiently
similar for the court to admit it on a spurious-plan basis,
we must (1) evaluate whether the state has shown “not
merely a similarity in the results, but such a concurrence of
common features that the various acts are naturally to be
explained as caused by a general plan of which they are the
individual manifestations,” Leistiko, 

 (quoting
Wigmore, 2 Evidence § 304 at 249 (internal quotation marks
and emphasis omitted)); and (2) if so, ascertain that, in the
words of Leistiko, there is “something more than the similarity required for other crimes evidence to be admissible to
prove intent,” Leistiko, 

. For the reasons that
follow, we conclude that the other-acts evidence in this case
met those standards.
     10
        Discussing Wigmore, 2 Evidence § 301 at 238, the court elaborated as
follows:
     “He explained that ‘intent more frequently signifies … merely the absence
     of accident, inadvertence, or casualty—a varying state of mind which is the
     contrary of an innocent state of mind.’ Id. Accordingly, when Wigmore, and
     [State v.] Johns[, 

, 

 (1986),] in reliance on Wigmore,
     refers to the absence of mistake or accident as the equivalent of intent, it
     does not appear that either is using intent only in the limited sense that the
     Oregon criminal statutes use that term. Cf. ORS 161.085(7) (defining intentionally or with intent).”
Leistiko, 

 n 9 (omission in original).
Cite as 

 (2021)                                              621

         We begin by reviewing why, in Leistiko, the proffered
evidence fell short of being admissible to prove intent and
therefore necessarily fell short of either of the more stringent foundations for spurious-plan evidence. In Leistiko, the
Supreme Court held that evidence of uncharged conduct
was not sufficiently similar to the charged offenses based, in
part, on its consideration of the approach that it had taken
in State v. Johns, 

, 

 (1986).11 Leistiko,
352 Or at 186. Quoting Johns, the court explained that,
    “[a]lthough this court recognized in Johns that ‘sometimes
    one prior similar act will be sufficiently relevant for admissibility,’ it cautioned that whether one prior similar act
    will suffice ‘[d]epend[s] upon the circumstances[.]’ 

. As the court explained, ‘[a] simple, unremarkable
    single instance of prior conduct probably will not qualify,
    but a complex act requiring several steps, particularly premeditated, may well qualify.’ Id.”
Leistiko, 

 (brackets in Leistiko). Based on the
facts of that case, the court concluded that the defendant’s
use of force to compel a woman to engage in sexual intercourse with him was not a “complex factual scenario” probative of the defendant’s intent as to the charged offense—
rather, it was nothing “other than an unremarkable single
instance of prior conduct.” 

 (internal quotation marks
omitted).
         Although in this case defendant’s conduct also did
not involve a “complex factual scenario,” we would not characterize the behavior depicted on the video as an “unremarkable single instance of prior conduct.” Based on the content
of the video, the jury reasonably could infer that defendant
had patrolled the library exploring his options, that he had
purposely selected an empty seat next to a woman seated
alone, and that he had incrementally “encroached” upon

     11
        The Supreme Court overruled, in part, its Johns decision in State v.
Skillicorn, 

, 

 (2021), to disallow the use of uncharged
misconduct under a “doctrine of chances” theory to show that, because a defendant has previously engaged in deliberate conduct, the defendant is more likely
to have engaged in the charged conduct deliberately. We do not, however, understand Skillicorn to have wholly disavowed the Johns opinion, and particularly not
its identification of factors that a trial court should consider when determining
whether a prior instance of conduct is probative of a defendant’s mental state at
the time of a charged offense.
622                                                       State v. Taylor

the woman’s personal space in a manner that she might
consider rude but ultimately innocuous, all with the goal
of lowering her guard so as to give defendant the opportunity to sexually assault her (as well, perhaps, as plausible
deniability).
         Moreover, even if defendant’s conduct around the
other woman would itself be insufficient to give rise to
such inferences, that conduct, in conjunction with his conduct around J, readily supported such inferences. That is,
defendant’s conduct in both instances was strikingly similar in that it occurred in the same library at essentially
the same time, involved virtually identical circumstances
(with defendant unnecessarily seating himself next to a
woman seated alone and gradually extending his legs into
her space), and ultimately resulted in close physical proximity between defendant’s body and each woman’s body under
circumstances that clearly did not require such proximity.
And, unlike the circumstances in Leistiko, here there are
no apparent dissimilarities between the two encounters
other than that they happened to occur on different floors
and the upstairs encounter may have stopped short of being
criminal.12 Cf. SL Johnson, 

 (cataloguing, in modus operandi case, the numerous dissimilarities
that outweighed any similarity that might support use of
evidence).
          Under those circumstances, the jury reasonably
could infer from the “common features” of the two encounters that they shared a common objective—the sexual
assault of an unsuspecting library patron. See Leistiko,

 (quoting Wigmore, 2 Evidence § 304 at 249,
for proposition that “ ‘merely a similarity in the results’ ” is
insufficient to show the existence of a plan; what is required
is “ ‘such a concurrence of common features that the various
acts are naturally to be explained as caused by a general
plan of which they are the individual manifestations’ ”). Put
another way, there were sufficient (and sufficiently unusual)
similarities between the two encounters to support an inference that defendant’s behavior was orchestrated in an effort
    12
       As previously noted, the trial court acquitted defendant of the charges
arising from the first encounter.
Cite as 

 (2021)                              623

to bring himself into close contact with women whom he
might assault, perhaps with impunity.

          Moreover, in addition to satisfying Wigmore’s explicit
standard for the admissibility of spurious-plan evidence, the
proffered evidence also satisfied the “something more than
the similarity required … to prove intent” requirement
that the Leistiko court attributed to Wigmore. Leistiko, 352
Or at 189. That is, although the methodology reflected in
defendant’s conduct likely falls short of the “signature crime”
requirement for modus operandi evidence, see SL Johnson,

, given the virtual identity of time, place, and
behavior, it more than satisfies the degree of similarity that
we and the Supreme Court have typically required before
evidence of prior conduct may be admitted to prove intent.
See MA Johnson, 

 (observing that, “when
prior crime evidence is to be admitted to prove intent, this
court has indicated that a high degree of similarity is helpful but is not essential, and that a distinctive methodology is
entirely irrelevant”). As a result, the proffered evidence also
satisfies that second requirement for other-acts evidence to
be admissible under a spurious-plan theory.

         To summarize, given the many similarities between
the two encounters, a jury reasonably could infer the existence
of a plan—of which each encounter was a manifestation—
as well as defendant’s “doing of the act designed,” that
is, assaulting a woman, here, J. Leistiko, 352 Or at 188
(internal quotation marks omitted). As a result, the video
recording was probative of defendant’s mental state in his
alleged sexual assault of J. Furthermore, although we, like
the Supreme Court, are cognizant of the fact that admitting other-acts evidence as evidence of a plan may sometimes be “vulnerable to the claim that the prior bad acts
are merely propensity evidence,” id., we do not view the use
of the evidence here as raising such concerns to the point of
rendering it irrelevant under OEC 401 and OEC 404(3). That
is, whether or not jurors may be tempted to view the video
evidence as suggesting defendant’s propensity to engage in
predatory behavior, the relevance of the evidence does not
require us to engage in character-based reasoning. Rather,
it relies on the existence of similar episodes of conduct
624                                                           State v. Taylor

whose similarities may reflect orchestrated behavior rather
than mere coincidence. And to the extent that using the evidence to establish a plan raises an unacceptable risk that
the jury will rely upon it as propensity evidence, that is a
matter to be addressed through jury instructions and OEC
403, which, as noted above, 315 Or App at 610 n 2, defendant
does not invoke on appeal.
         In conclusion, the trial court did not err in admitting the challenged security-video footage for the purpose of
establishing that defendant had a plan and acted in accordance with that plan. Moreover, we understand defendant’s
argument that the evidence was not probative of defendant’s motive or absence of mistake on his part to be derivative of his argument that the evidence could not properly
be deemed evidence of a plan, an argument we have just
rejected.13 Finally, defendant does not contend that, even
if the evidence would otherwise have been admissible plan
evidence, it was subject to exclusion under OEC 403 or on
some other basis. Accordingly, we affirm.
           Affirmed.




    13
       We also note that, in at least some instances, the analysis for admitting other-acts evidence to establish motive may be “strikingly similar” to that
applicable to spurious-plan evidence. See Imwinkelried, Uncharged Misconduct
Evidence § 3:23 (2021). Thus, to the extent that the trial court’s comments in this
case might be viewed as relying more on a motive theory than on a spurious-plan
theory, we do not readily see how that approach would be incorrect under the
facts of this case.