State v. Travis

                                      460

   Argued and submitted January 18, reversed and remanded June 23, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                      ROY ALLEN TRAVIS,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       18CR77934; A173434
                                  

    In this appeal from a conviction for multiple sex crimes, defendant challenges
the trial court’s admission of a prior conviction for first-degree rape. The state
concedes that the prior conviction was not admissible for a noncharacter purpose
under OEC 404(3), but argues that the evidence was admitted for a permissible character purpose under OEC 404(4). Defendant contends that the evidence
was not considered for an OEC 404(4) purpose and was unfairly prejudicial if
admitted for that purpose. Held: The record did not establish that the trial court
considered the challenged evidence for a character purpose under OEC 404(4).
Absent such consideration, the trial court could not have properly balanced the
probative value against the danger of unfair prejudice when the evidence was
used for a character purpose. On remand, the trial court must consider whether
the evidence should be received under a correct analysis of OEC 404 and OEC
403 and whether a new trial is required or appropriate.
    Reversed and remanded.



   Susan M. Tripp, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs 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 Mooney, Presiding Judge, and Pagán, Judge, and
Hadlock, Judge pro tempore.*
   PAGÁN, J.
   Reversed and remanded.
______________
   * Pagán, J., vice DeHoog, J. pro tempore.
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        PAGÁN, J.
         In this criminal appeal, defendant contests his convictions of multiple sex crimes occurring over the course of
approximately 13 years. The victim of those sex crimes was
a woman who was at first defendant’s stepdaughter, M, and
later, his wife. On appeal, defendant challenges the trial
court’s decision to admit certain evidence of defendant’s prior
conviction of first-degree rape, committed against his teenaged biological daughter, and jury instructions allowing for
nonunanimous guilty verdicts. Because the jury returned
unanimous guilty verdicts for each conviction, we reject that
argument for the reasons stated in State v. Ciraulo, 

, 

 (2020), cert den, 

, 

,

 (2021).
         On appeal, the state concedes that the evidence of
defendant’s prior rape conviction was not properly admitted
for a noncharacter purpose under OEC 404(3). In light of the
record and our recent cases explaining that sexual motive
is generally not a permissible reason to admit evidence for
noncharacter purposes, we accept that concession as well
taken. See State v. Martinez, 

, 

 (2021) (evidence of prior conduct to show sexual purpose
was impermissible character evidence under OEC 404(3));
State v. Levasseur, 

, 

, adh’d
as modified, 

, 

, rev den, 

 (2021) (same); State v. Terry, 

,

 (2021) (same). Due to that concession, the resolution of this appeal reduces to whether the evidence was
also considered for a permissible character purpose under
OEC 404(4) and, if considered for that purpose, whether the
evidence had to be excluded as unfairly prejudicial under
OEC 403. We conclude that the record does not support a
finding that the trial court considered the evidence for a
OEC 404(4) purpose, and therefore reverse and remand.
         We review a trial court’s determination of relevance
under OEC 401 for errors of law. State v. Stockton, 

, 

 (2021). Likewise, we review a trial
court’s determination that other acts evidence is relevant
and admissible under OEC 404(3) or OEC 404(4) for legal
error. 

 Whether otherwise admissible evidence should be
462                                                         State v. Travis

excluded as unfairly prejudicial under OEC 403 is reviewed
for abuse of discretion. Levasseur, 

. In the
procedural history of this case, the challenged evidence was
deemed relevant and admissible during a pretrial hearing;
thus, our review is limited to the record that was before the
trial court at that time. See State v. Warren, 

, 

, rev den, 

 (2018).
         Given the concession about whether the challenged
evidence was admissible under OEC 404(3), the relevant
facts are largely procedural and are drawn from each side’s
arguments as well as the court’s reasoning in admitting the
evidence.
         As the proponent of the challenged evidence, the
state moved in limine to admit “evidence of Defendant’s
sexual abuse of his daughter, and statements made by
Defendant regarding his sexual attraction to children.”
The state proposed to admit a certified copy of defendant’s
1992 conviction for first-degree rape, “interview statements
made by … defendant’s daughter in the prior case,” and a
“statement from a family friend” that purported to contain
an admission by defendant that acknowledged the sexual
abuse problem and that he was seeking help from a counselor.1 The state also proposed to have defendant’s biological
daughter testify about the rape that gave rise to the 1992
conviction.
         The state made clear to the trial court that it was
offering the evidence under a noncharacter theory and a
character theory. First, the state argued that the evidence
was relevant and admissible as noncharacter evidence to
“prove defendant’s sexual motive in offending the child victim in the current case under OEC 404(3) and 403.” The
state suggested that the similarities between the victim and
circumstances underlying the 1992 conviction were indicative of a class of victim that was the object of defendant’s
sexual offenses, which was an explanation of “the driving
force behind this behavior,” and therefore why the evidence
was relevant and admissible as noncharacter evidence
under OEC 404(3). The state then argued, under a character
   1
     Although the state sought to admit portions of a police interview and statement from a family friend, that evidence was not presented to the jury at trial.
Cite as 

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theory, that the evidence was “relevant and admissible under
OEC 404(4) and 403 to prove sexual attraction to children
and the defendant’s propensity to sexually abuse children as
alleged in this case.” The state contended that the evidence
was probative of defendant’s “propensity to sexually offend
this class of victim.”
         At the pretrial hearing, defendant argued that the
probative value of “these prior bad acts … is substantially
outweighed by prejudice.” After suggesting that admission
of the “prior bad acts” implicated “prior jeopardy issues” as
well as “the presumption of innocence,” defendant argued
“that is, I think, 401, it’s prejudicial … obviously, and I
don’t think the balancing effect that is cited by 403 and 404
even gets close to allowing that prior information in, and
so I would object most wholeheartedly.” Defendant also contended that the victim from the 1992 rape conviction and
the present allegations were not “a similar class of people,”
because the “current person … is his spouse, it’s not his
daughter.”
        After both sides had argued their points, the court
observed,
       “It’s an interesting interaction between 403 and 404.
   The admission of evidence under 404 remains subject to the
   balancing under 403, so let’s—getting down to the heart
   of the matter in this case, the questions are really getting
   down to the basis of is it more prejudicial than probative?
       “Certainly, appellate courts have found that prior abuse
   of different victims is a relevant factor, an admissible factor to show that the defendant had a sexual intent in the
   defendant’s behavior.
       “So I think that this case, the admissibility is just somewhat a standard admissibility under [State v.] Johns, [

, 

 (1986),] that it goes to the issue of
   motive, opportunity, intent, plan, et cetera, absence of mistake or accident. I think that in this case the sexual intent
   of the alleged sexual intent of the defendant is relevant to
   the issue of whether or not in this situation this type of
   behavior was with a motive or plan to have sexual intercourse with a child.
      “…
464                                                   State v. Travis

       “So then finally as to more prejudicial than probative, I
   guess the question is whether or not the Court can give a
   jury instruction, if it lets this evidence in, to tell the jury to
   follow the rules and that the evidence of prior sex abuse of
   a daughter is not proof that the defendant sexually abused
   this daughter; it only goes to the motive, intent, plan,
   knowledge evidence. And for that reason, I think the Court
   could give a limiting instruction[.]”

         The court allowed the challenged evidence to be
presented to the jury. At trial, defendant’s biological daughter, the victim of the rape giving rise to the 1992 conviction,
briefly testified. During her testimony, the state offered the
certified copy of the 1992 judgment and that was admitted. The jury was instructed that it “may only consider [the
other acts] evidence for the purpose of deciding whether the
defendant had a particular motive, purpose, plan, or sexual interest in children.” As noted, the jury returned unanimous guilty verdicts for each of the 12 charges.
        On appeal, aside from the argument—conceded by
the state—that the challenged evidence was not admissible as noncharacter evidence under OEC 404(3), defendant
argues that the OEC 403 balancing was necessarily flawed
because the trial court did not consider the propensity purpose for admitting the evidence under OEC 404(4). In his
view, without considering the correct purpose for admission,
the trial court assigned too much probative value to the
challenged evidence and therefore abused its discretion in
balancing under OEC 403.
         The state argues that we should affirm the judgment of conviction because “even if the prior rape evidence
was propensity evidence (rather than nonpropensity evidence) and therefore inadmissible under OEC 404(3), it was
admissible propensity evidence under OEC 404(4) and [State
v.] Williams[, 

, 

 (2015)].” According
to the state it does not matter that the trial court incorrectly admitted the evidence under OEC 404(3) because the
court “understood that the other-acts evidence was offered
to establish defendant’s sexual interest in children (or, put
another way, his propensity to sexually abuse children), and
it conducted its OEC 403 balancing accordingly.”
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        With the facts and arguments in mind, we turn to
our analysis. 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) [OEC 406 through 412] and, to the extent
      required by the United States Constitution or the
      Oregon Constitution, [OEC 403];
         “(b) The rules of evidence relating to privilege and
      hearsay;
         “(c)   The Oregon Constitution; and
         “(d) The United States Constitution.”
          That rule was enacted as an exception to the general OEC 404(3) rule prohibiting character evidence to show
a person acted in conformity with their character. Williams,

. The evidence proposed for admission under
OEC 404(4) must still be logically relevant to a fact at issue
in the trial, OEC 401, and is subject to exclusion if the probative value is substantially outweighed by the danger of
unfair prejudice flowing from the evidence. 

; OEC
403. “When other acts evidence goes only to character and
there are no permissible inferences the jury may draw from
it, it is more likely that the evidence will be excluded.” 

(quotation marks omitted). “Such evidence generally will
have little or no cognizable probative value, and the risk
that the jury may conclude improperly that the defendant
had acted in accordance with past acts on the occasion of the
charged crime will be substantial.” 

        To properly analyze the purpose for which other acts
evidence is offered and weigh the probative value against
the prejudicial effect for that purpose, courts should follow a two-step framework. State v. Baughman, 

, 

 (2017).
       “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
466                                                           State v. Travis

    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 non-propensity 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.”

 (footnote omitted). Inherent in that two-step analysis,
and paying respect to the admonition about the likely low
probative value and probable severity of unfair prejudice
for purely character evidence expressed in Williams, is
the recognition that OEC 403 balancing is dependent on
the purpose for which the other acts evidence is offered.

 (the decision about relevance at step one will
have a “significant impact” on decision whether to admit
at step two). The prescribed framework of determining
relevancy for a noncharacter purpose under OEC 404(3),
then balancing under OEC 403, before considering a character purpose under OEC 404(4), helps ensure that the
purpose-focused balancing is not clouded by aggregating
probative value under OEC 404(3) and OEC 404(4) or the
danger of unfair prejudice from evidence admitted under
those two very different analyses.2 See State v. Tena, 

, 

 (2018) (“[O]nce a court determines that evidence of other acts is not probative for a non-propensity purpose under OEC 404(3), it may then turn


    2
      For instance, if a trial court erroneously concluded that a piece of challenged evidence was relevant for a noncharacter purpose, it would likely assign a
relatively high probative value to that evidence and would therefore be unlikely
to exclude the evidence under OEC 403. The same is not true if the evidence was
only relevant for a character purpose, because of the “little or no cognizable probative value” of pure character evidence. In a nutshell, because noncharacter evidence is more likely to have high probative value, by aggregating both noncharacter and character evidence into a single OEC 403 balancing, it would be unlikely
that the danger of unfair prejudice would substantially outweigh the probative
value of the evidence. Baughman’s segregated analysis helps guide trial courts
away from that unfortunate analytical pitfall.
Cite as 

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to whether the evidence nevertheless is admissible under
OEC 404(4).”).

         In arguing for affirmance despite the error in
admitting the challenged evidence, the state cites our recent
case of Terry. In that case, we concluded that the trial court
had not abused its discretion under OEC 403 to admit evidence of the defendant’s prior conviction for unlawful sexual
penetration of a 10-year-old relative after determining the
evidence was relevant to both noncharacter and character
purposes under OEC 404(3) and OEC 404(4) respectively.
Terry, 

. Although we concluded that the
trial court erred as a matter of law by determining that the
proposed other acts evidence was relevant for a noncharacter
purpose, because the trial court had expressly determined
the evidence was relevant for character under OEC 404(4), it
had properly accounted for the limited probative value generally inherent in OEC 404(4) evidence. 

 And although we
are unsure of why the trial court did not stop after the first
Baughman step of determining admissibility for noncharacter purposes under OEC 404(3), by specifically considering
the evidence as relevant for character purposes under OEC
404(4), we could be sure that it had considered the limited
probative value of the evidence under OEC 404(4) when conducting the OEC 403 balancing. To be clear, our decision
in Terry was not based on an implicit finding of admissibility under OEC 404(4), such as the state suggests exists in
this case, but rather the explicit finding by the court that
the evidence was admissible for a character purpose under
OEC 404(4), and balancing undertaken with that purpose in
mind.

         Contrastingly, in Martinez, we concluded that the
trial court had admitted the other acts evidence only on the
erroneous basis of noncharacter purpose under OEC 404(3).

. Although the state argued during the pretrial hearing that the evidence was admissible for both noncharacter and character purposes, the trial court admitted
the evidence, stating: “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
468                                                           State v. Travis

area, I don’t think I need to.” 

 (emphasis in Martinez).3
After concluding that the evidence was not admissible for a
noncharacter purpose, we rejected the state’s claim that the
court “implicitly” accepted the evidence on the OEC 404(4)
basis. 

. We reversed the convictions and remanded
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.” 

 at 59 (citing Baughman, 

).
         In reviewing the record and the trial court’s decision
in this case, we do not understand the trial court to have
considered whether the challenged evidence was relevant
for a character purpose under OEC 404(4). Indeed, the trial
court’s reasoning confirmed that it was considering the challenged evidence under the Johns analysis,4 and explained
a list of the express OEC 404(3) theories of noncharacter
relevance. At the time of the trial court’s decision on the
challenged evidence, Johns had long provided a framework
for the admission of other acts evidence for noncharacter—
OEC 404(3)—purposes. Much like the trial court did in
Levasseur, the trial court here focused its analysis on the
now-outdated Johns framework and how the proffered
     3
        That statement from the trial court in Martinez, plus the trial court’s
explicit determination that the evidence in Terry was relevant for both noncharacter and character purposes, illustrates some tension in Baughman regarding
the steps for analyzing the admissibility of other acts evidence. Although the
trial court may stop the analysis after determining that proposed other acts evidence is relevant for a noncharacter purpose, the proponent of the evidence has
an interest in also determining admissibility for character purposes—both to
provide flexibility in how that evidence is presented at trial, and, as Terry illustrates, to increase the likelihood of surviving appellate review. Although we do
not read Baughman or its progeny as requiring a court to make an OEC 404(4)
finding after determining that the other acts evidence is relevant and admissible
under the OEC 404(3) and OEC 403 step, in light of the sea change to the analysis
of other acts evidence presented by State v. Skillicorn, 

, 

(2021), we anticipate more call for courts to make both OEC 404(3) and OEC
404(4) findings.
     4
        In State v. Johns, the court specifically considered whether other acts
evidence was admissible for a noncharacter purpose of demonstrating intent
through the “doctrine of chances.” 

, 

 (1986). Johns predated adoption of OEC 404(4) by 11 years and was largely overruled by Skillicorn.

 (“[W]e overrule Johns to the extent that it holds that evidence of
uncharged misconduct can be admitted under the doctrine of chances for the purpose of arguing that, because the defendant engaged in deliberate conduct before,
it is likely that he engaged in it again during the charged incident.”).
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evidence would be probative of intent under that framework.
See Levasseur, 

 (noting trial court’s reliance on Johns analysis in admitting other acts evidence).
Moreover, the jury instructions clearly suggest that the
court understood that it had admitted the evidence of the
1992 rape conviction “for the purpose of deciding whether
the defendant had a particular motive, purpose, plan, or
sexual interest in children.” Taken in the context of the colloquy in the pretrial hearing and confirmed by the instructions given to the jury, the trial court admitted the challenged evidence solely on the basis of OEC 404(3).
         That conclusion brings this case much nearer to
Martinez than to Terry. Absent something more in the
record to allow us to make a nonspeculative inference that a
trial court did actually consider other acts evidence as relevant for an OEC 404(4) purpose and balance accordingly, we
reject the state’s argument that the trial court in this case
did so by implication. The state’s argument for an alternate
basis for affirmance fails at the first step because “the facts
of record [are insufficient] to support the alternative basis
for affirmance.” State v. Booth, 

, 

 (2015) (citing Outdoor Media Dimensions Inc. v. State
of Oregon, 

, 

 (2001), for three
requirements for affirmance on basis other than on basis
which lower tribunal ruled).
         We also decline to accept the state’s argument
that labels—as in character, noncharacter, or propensity
evidence—do not matter. While we agree, in principle, that
challenges related to the distinction between noncharacter
and character, or nonpropensity and propensity evidence is,
in part, a problem arising from the labels attached through
decades of litigation, it does not follow that the labels become
worthless. See, e.g., State v. Jackson, 

, 

 (2021) (Garrett, J., concurring) (noting that Oregon
courts have used the terms character and propensity interchangeably due to years of litigation about other acts evidence). Those labels, and particularly the reference to their
associated provisions within the evidence code, signal a
common understanding between the court and the parties
discussing the proposed evidence. To be sure, the substantive content of an argument for or against the admission of
470                                            State v. Travis

evidence is far more critical than labels to a court’s understanding of what it is being asked to rule on. See State v.
De Leon Say, 

, 

 (2022) (noting that trial court’s substantive understanding of the
state’s theory of relevance for sexual predisposition evidence
guided its balancing test). Nonetheless, those labels, if used
precisely, can at least serve a valuable calibration point to
ensure the meaning intended by the advocate is the meaning
received by the court. Terry, 

 (noting
both the label attached by the proponent and the substantive
use at trial as indicative of the true purpose of the evidence);
Martinez, 

 (rejecting argument that reference to “Williams” evidence during argument meant that the
court implicitly admitted evidence for character purposes
under OEC 404(4) when the parties did not invite the court
to make an OEC 404(4) finding). For similar reasons, we
reject defendant’s argument that a labelling error is a substantive error, at least in any categorical sense. See De Leon
Say, 

 (concluding that any labelling error
the trial court may have made did not require reversal when
the trial court applied an appropriate balancing test based
on the court’s understanding of the theory of relevance by
the offering party). In sum, although the label attached to
proposed evidence is not dispositive of the purpose for which
a court considers it, the label still serves as a useful tool to
ensure that the substantive argument conveyed is consistent
with the substantive argument the court understood.
          As we have determined that the admission of the
challenged evidence was error, we review all pertinent portions of the record to determine if the error was harmless.
Stockton, 

. “As a matter of constitutional
provision, statute, and rule, we may not reverse a judgment
based on the erroneous admission of evidence if the error did
not substantially affect defendant’s rights, i.e., was harmless.” State v. Carrillo, 

, 

,
rev den, 

 (2020). An error is harmless if there is
little likelihood that it affected the verdict. State v. Davis,

, 

 (2003).
        The state charged defendant with five counts of
second-degree sexual abuse for offenses alleged to have
occurred between January 2005 and January 2007. The
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state alleged various episodes that involved oral sex and
vaginal sex while M was between 16 and 17 years old. In
addition to the sex crimes that the state alleged occurred
between 2005 and 2007, the state alleged that defendant
committed the crimes of first-degree rape and strangulation
for a 2018 episode, two counts of first-degree unlawful sexual penetration occurring between 2009 and 2018, and two
counts of coercion occurring between November 2016 and
June 2018.
         In this case, the trial court’s own reasoning for the
state’s need for the evidence is sufficient to convince us that
the erroneous admission of the challenged evidence was not
harmless. During the pretrial hearing, when conducting
the OEC 403 balancing, the court observed that the state’s
need for the evidence was high because “there’s no physical
evidence available, based on the fact that the other witness
[M’s mother] who would … have relevant testimony to talk
about what did or did not happen unfortunately succumbed
to an illness.”5 Although the evidence of the 1992 rape conviction admitted at trial was for a “single count of rape in
the first degree,” defendant’s biological daughter testified
that the sexual intercourse with her at age 15 “happened
multiple times, mercilessly.”
         That testimony occurred at the end of the state’s
case in chief and would likely have served a strong bolstering effect to the testimony the jury had previously heard
from M in this case.
         As we understand the way the case developed, it
reduced to a credibility contest between M and defendant.
For his part, defendant denied that he had ever had any sort
of sexual contact with M while she was younger than 18.
Defendant denied ever forcing himself on M and said that
she was a “full participant in all of this.” During M’s testimony, the state introduced some handwritten letters into
evidence that she asserted were sent by defendant while
defendant was still incarcerated for the 1992 rape conviction. M testified that the letters indicated that defendant
    5
      As noted, defendant was married to M’s mother. She eventually died from
complications from ALS, and after she died, defendant married her daughter—
his stepdaughter, M.
472                                          State v. Travis

“express[ed] his love” for her, despite never having met her
at that point, and that the letters said, “I’m going to be
your dad now and going to spend time with you.” Defendant
denied writing the letters and said he did not “recognize
them at all,” but later said that he may have communicated
by phone and in writing with M and her brother “through
their mother.” In the absence of physical evidence corroborating the alleged sexual abuse, the relative levels of credibility of M and defendant were a “central factual issue.”
See State v. Marrington, 

, 

(2003). Provided the tendency that the challenged evidence
had to bolster M’s credibility through impermissible character inferences about defendant, and how that related to
a central factual issue of the case, we cannot say that there
was little likelihood that the erroneous admission of that
evidence affected the verdict.
         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.