State v. Sullivan

210                    July 30, 2025                No. 670

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
               EMILY ANNE SULLIVAN,
                  Defendant-Appellant.
               Linn County Circuit Court
                 20CR57180; A181380

  Michael B. Wynhausen, Judge.
  Submitted March 6, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel C. Duran, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  AOYAGI, P. J
  Affirmed.
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         AOYAGI, P. J.
         Defendant was convicted of driving under the
influence of intoxicants (DUII), ORS 813.010, and reckless
driving, ORS 811.140. On appeal, she assigns error to the
trial court’s admission of evidence that she was previously
charged with DUII and got that charge dismissed by completing diversion, which the trial court deemed relevant to
the reckless driving charge. Defendant argues that there is
no nonpropensity reasoning by which that evidence was relevant and that, consequently, the trial court was required
to exclude that evidence under OEC 403. Although existing case law from both this court and the Supreme Court is
against defendant’s position, she asks that we revisit that
case law in light of State v. Skillicorn, 

, 

 (2021). After defendant filed her brief, the Supreme
Court decided State v. Davis, 

, 

(2024), which sheds additional light on the analytical path
that courts must take in deciding whether to admit evidence
of prior acts. We conclude that the existing body of case law
survives Skillicorn and, accordingly, affirm.
        Defendant was charged with DUII and reckless
driving. Before trial, the state moved in limine for the
admission of evidence that defendant had previously been
charged with DUII and completed diversion, which included
attending a victim impact panel, resulting in the dismissal
of the previous charge. The state contended that the evidence was relevant to the reckless driving charge through a
nonpropensity chain of reasoning, specifically to show that,
when defendant drove after drinking alcohol, she acted with
recklessness as to the fact that her driving endangered persons or property. A person commits reckless driving when
the person “[r]ecklessly drives a vehicle upon a highway
or premises open to the public in a manner that endangers the safety of persons or property.” ORS 811.140(1)(a).
“Recklessly” is defined as follows:
       “ ‘Recklessly’ when used with respect to a result or to a
   circumstance described by a statute defining an offense,
   means that a person is aware of and consciously disregards
   a substantial and unjustifiable risk that the result will
   occur or that the circumstance exists. The risk must be of
212                                          State v. Sullivan

   such nature and degree that disregard thereof constitutes
   a gross deviation from the standard of care that a reasonable person would observe in the situation.”
ORS 161.085(9).
          Defendant opposed the motion, except as to the
victim impact panel evidence. She acknowledged that evidence that she attended a victim impact panel—a type of
presentation that includes watching video of crashes caused
by intoxicated drivers and hearing from DUII crash victims and loved ones of people killed in DUII crashes—was
probative as to whether, when defendant drove under the
influence of alcohol, she was aware of and consciously disregarded a risk that doing so is dangerous to persons or property. But defendant disputed the relevance of the evidence
that she had previously been charged with DUII and gotten
that charge dismissed by completing diversion. Defendant
argued that such evidence was not probative of her subjective awareness of the risk that driving under the influence
of alcohol is dangerous and therefore not probative of recklessness. She pointed out that knowing that something is
illegal is different from knowing that it is dangerous to persons or property. Defendant also argued that even if it was
otherwise admissible, the evidence should be excluded under
OEC 403, because its probative value was substantially outweighed by the risk of unfair prejudice, given the risk that
the jury would use it for propensity purposes (reasoning
that defendant was more likely to have committed DUII in
this instance because she had committed DUII before).
         The trial court granted the state’s motion in limine.
Citing case law that we discuss below, the court ruled that
previous charges, dismissals, and convictions for DUII are
relevant to show a defendant’s awareness of the risk that
driving under the influence of intoxicants endangers people
and property. As for OEC 403, the court agreed with the
state that OEC 403 balancing was unnecessary when admitting evidence under OEC 404(4). It nonetheless conducted
OEC 403 balancing as a precautionary matter, and it concluded that the risk of unfair prejudice did not substantially
outweigh the evidence’s probative value. The court indicated that it would give a limiting instruction to the jury to
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consider the evidence only in evaluating whether defendant
was aware of the dangers of driving under the influence of
alcohol as relevant to the reckless driving charge.
         The case proceeded to trial, and the jury found
defendant guilty of both DUII and reckless driving. On
appeal of the resulting judgment of conviction, defendant
assigns error to the court’s ruling on the motion in limine.
The parties largely reprise their trial court arguments,
except that the state now concedes that OEC 403 balancing
was required. See State v. Williams, 

, 

 (2015) (“[T]he admission of evidence under OEC 404(4)
remains subject to balancing under OEC 403.”).
         To be admissible in a criminal trial, evidence of
uncharged misconduct must be relevant under OEC 401 and
must “withstand OEC 403 balancing to determine whether
its probative value is substantially outweighed by its prejudicial effect.” Davis, 

. “We review the trial
court’s determination that other acts evidence is relevant
and admissible under OEC 404(4) for legal error. We review
whether otherwise admissible evidence should be excluded
as unfairly prejudicial under OEC 403 … for abuse of discretion.” State v. Hernandez, 

, 

 (2025) (internal quotation marks and citation omitted).
         In seeking admission, the proponent of the evidence
first “must articulate a theory of relevance.” Skillicorn, 

; accord Davis, 

. “[T]he proponent
must identify the inferences that it wants the factfinder to
draw based on the evidence and explain how those inferences make the existence of a fact of consequence more
or less probable than it would be without the evidence.”
Skillicorn, 

. Then, the court must evaluate
the proposed chain of inferences to determine whether any
of the inferences depend on propensity reasoning, that is,
whether “ ‘the chain of logical relevance’ connecting the evidence to the fact it is proffered to prove relies on ‘an inference relating to [a person’s] character or propensities.’ ”1 

     1
       The Davis court explained that it may be necessary to “parse the other
‘acts’ into constituent parts, where possible, to aid in determining the degree of
character present in the proponent’s theory of relevancy.” State v. Martinez, 

, 

 (2024), rev den, 

 (2025); see Davis, 

 n 11 (so explaining).
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at 476 (quoting State v. Johnson, 

, 

 (2006) (brackets in Skillicorn)).
         If the proposed chain of inferences directly implicates a person’s character or propensities, such that its relevance “derive[s] primarily or substantially from character,”
then the evidence “is likely to be excluded” under OEC 403.
Davis, 

; see also Skillicorn, 

-
79 (noting that the prohibition on propensity evidence in
criminal trials is “a fundamental aspect of our legal system” that “can be traced back more than three centuries”
and that it serves “to protect the fairness of trials and the
accuracy of verdicts” (internal quotation marks omitted));
State v. Martinez, 

, 

 (2024),
rev den, 

 (2025) (“OEC 403 balancing must be
conducted to preclude the admission of concededly relevant
evidence that has the capacity to lure the factfinder into
declaring guilt on a ground different from proof specific to
the offense charged.” (Internal quotation marks omitted.)).
         If the proposed chain of inferences does not clearly
or directly implicate a person’s character or propensities,
then the court must look more closely at the evidence to
determine whether “character reasoning [is] implicit to
some degree” in its relevance, or whether, “despite a noncharacter purpose being offered by the proponent of the
evidence, a jury or factfinder could perceive the evidence as
relying on character and action in conformity with character as its source of relevance to the trial.” Davis, 

 (emphasis in original). In conducting that assessment,
the court may consider “how the proffered evidence would
have fared under” OEC 404(3)—that is, whether it is probative of some fact at issue in the case based on a chain of
inferences that does not include any character or propensity
reasoning—as admissibility under OEC 404(3) “will have a
significant effect on whether the trial court admits that evidence under the balancing required by OEC 403.” 

(internal quotation marks omitted). Ultimately, the court
has discretion to “admit evidence that does not primarily
or substantially derive its relevance from character-based
propensity reasoning.” Martinez, 

. “[W]
hether a court acts within its permissible range of discretion
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to admit such evidence may depend on whether the court
took action to mitigate any unfair prejudice, such as redacting inflammatory details, limiting the state’s use of the evidence, and instructing the jury on how it may consider the
evidence.” Id. at 655.
        With those general principles in mind, we consider
existing case law on the relevance of prior DUII arrests,
charges, and convictions to prove recklessness.
         In State v. Johnstone, 

, 

 (2001), the defendant was charged with first-degree
manslaughter in connection with a fatal crash that he caused
while under the influence of alcohol. A conviction required
proof that he acted recklessly “under circumstances manifesting extreme indifference to the value of human life.” 

; see generally State v. Giron-Cortez, 

, 

 (2024) (“[R]eckless assault under circumstances manifesting extreme indifference to the value of
human life must go well beyond ordinary reckless assault
and take into account circumstances before, during, and
after the act that causes the harm.” (Internal quotation
marks omitted.)). We held that evidence of a prior DUII
arrest and diversion agreement was admissible as relevant
to whether the defendant had the requisite reckless state
of mind at the time of the crash, that is, “whether he had a
subjective awareness of the risks to which he exposed others.” Johnstone, 

. It showed that he “had
not merely had the opportunity to educate himself about the
dangers of drinking and driving, he had the obligation to do
so under his diversion agreement.” 

 (emphasis
in original).
         Notably, Johnstone involved a prior DUII charge and
diversion agreement, not a prior DUII conviction. However,
in State v. Hardman, we inaccurately described Johnstone
as involving a prior DUII conviction:
   “[In Johnstone], we reasoned that the defendant’s awareness of his ‘obligation’ to participate in a diversion program
   was itself a basis for inferring his subjective awareness of
   the risks to which drinking and driving exposed others.
   We viewed the defendant’s prior DUII conviction as a basis
   for inferring such an awareness as well. In short, rather
216                                                         State v. Sullivan

    than embrace a requirement that the evidence must show
    that a defendant had been formally informed or actively
    educated about the dangers of drinking and driving, we
    rejected such a requirement in Johnstone. In effect, we recognized that people, as a matter of their common sense, can
    gain a heightened awareness of those risks from the fact of
    a DUII conviction and the fact that they are obligated to
    participate in a diversion program, without more.”

, 

 (2004) (emphases added;
internal citation omitted). It appears that we may have meant
to refer to a DUII charge there, rather than a DUII conviction, given that our reasoning depended on the diversion
agreement, which is something that arises from a charge, not
a conviction. In any event, our actual holding in Hardman was
that the trial court did not err in admitting evidence that the
defendant had previously been involved in a car accident after
drinking, which resulted in serious injuries, DUII charges
against him that were still pending, and a release agreement
that was still in place wherein he had agreed not to drink and
drive, because that evidence showed that the defendant had
“a heightened awareness that alcohol and driving do not mix,”
making it relevant to whether he was subjectively aware of
the risks of drinking and driving. 

.
         A few years later, in State v. Wyant, 

, 

 (2007), rev den, 

 (2008),
we stated that the defendant’s “prior DUII convictions and
participation in a DUII probation program were relevant to
prove that [he] acted recklessly under circumstances manifesting extreme indifference to the value of human life,”
an element of an assault charge against him, en route to
analyzing a due process issue that was the actual focus of
our opinion. The totality of our discussion of relevance was
the above quote, followed by a string cite to three cases. Id.
Notably, only one of those cases involved a prior DUII conviction—State v. Hopkins, 

, 

 (2001),
rev den, 

 (2002).2 In Hopkins, which involved
charges arising from a car accident, we held that the defendant’s prior DUII conviction was relevant and admissible

    2
      One of the other cited cases was Johnstone, 

, but we accurately described it as involving the relevance of evidence of “past participation in
DUII diversion program,” not a prior DUII conviction. Wyant, 

.
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because the defendant had made certain admissions to a
police officer at the scene of the accident, which he did not
dispute were admissible, and the prior DUII convictions provided needed context to understand the admissions. 

 (“In view of defendant’s admissions regarding his
involvement with the court system relating to drinking and
driving, the evidence of his previous DUII convictions was
relevant to explain what defendant was referring to when he
made the admissions.”).
         By 2009, we viewed the law as settled that prior
DUII convictions are relevant to prove recklessness, even
without a connection to a diversion program or victim
impact panel. In State v. Coen, 

, 

 (2009), aff’d sub nom State v. Moore/Coen, 

,

 (2010), cert den, 

 (2011), the defendant was charged with second-degree manslaughter, which
requires a reckless mental state, and DUII, after a fatal
car crash. The trial court admitted evidence that the defendant had participated in a diversion program in 1992, but it
excluded evidence of a prior DUII conviction from 1997. Id.
at 283. The state appealed, challenging the latter ruling.
Id. at 284. We readily rejected the defendant’s argument
that the prior DUII conviction was irrelevant, stating that
“our case law clearly establishes that evidence of defendant’s
prior DUII conviction is relevant to whether defendant had
… knowledge of the risks involved in drinking and driving
on the date of the accident.” Id. (internal quotation marks
omitted). We cited Wyant and Hardman for that proposition
and said nothing further on the issue. Id. at 284-85.3
        The Supreme Court took review in Moore/Coen
and affirmed our decision, including agreeing that the
defendant’s prior DUII conviction was relevant to prove
    3
      Although both Wyant and Hardman involved crimes requiring extreme
indifference to the value of human life, which is a heightened form of recklessness,
we have recognized that the relevance principles from those cases are equally
applicable to cases involving ordinary recklessness. State v. Cavaner, 

, 

, rev den, 

 (2006), overruled on other grounds
by State v. Brumbach, 

, 

 (2015), rev den, 

(2016) (“It is true that Johnstone and Hopkins involved defendants charged with
recklessness under circumstances manifesting extreme indifference—as opposed
to mere recklessness. Nevertheless, the reasoning of both cases—that past participation in a diversion program is relevant to establishing a defendant’s subjective
awareness of the risks of driving while intoxicated—applies here.”).
218                                                        State v. Sullivan

recklessness. Moore/Coen, 

. The Supreme
Court recounted how the state had sought to admit the
1992 diversion evidence and 1997 prior conviction “to prove
that defendant had acted with a reckless mental state at
the time of the collision, i.e., defendant knew of the risks
involved in driving under the influence of intoxicants”; how
the trial court had excluded the 1997 conviction on the basis
that, even if it was relevant, it was clearly propensity evidence; and how the Court of Appeals had rejected the defendant’s efforts to uphold the ruling, including “[r]elying on its
prior case law” to hold “that evidence of a prior DUII conviction is relevant to demonstrate a defendant’s state of mind
in a prosecution for vehicular manslaughter.” 

.
The Supreme Court itself then addressed relevance, briefly
but unequivocally: “[T]he state offered the DUII evidence
to prove that defendant had acted with a reckless mental
state, an element of second-degree manslaughter, for which
the state had the burden of proof. Without question, that evidence is relevant for the purpose for which the state intends
to offer it.” 

 (emphasis added). The court did not
explain its specific reasoning. See 

         With that understanding of the case law, we return
to the present case. As an initial matter, we agree with
defendant that the jury was required to find that she was
under the influence of alcohol when she drove on the charged
occasion before reaching the question of her mental state for
reckless driving, but we disagree that it follows from that
alone that the prior DUII arrest is propensity evidence.
Indeed, as we understand it, the trial court recognized the
need for a limiting instruction precisely because it wanted
to ensure that the jury would first decide whether defendant drove under the influence on this occasion and, if it
found that she did, only then consider her prior DUII arrest
and diversion as relevant to whether she acted recklessly
for purposes of the reckless driving charge. That the conduct itself had to be proved by other evidence does not mean
that this evidence was necessarily admitted for a propensity
purpose.4
    4
       This case is unlike State v. Levasseur, 

, 

, adh’d
to as clarified on recons, 

, 

, rev den, 

 (2021),
on which defendant relies. In that case, the jury was instructed to consider the
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          Defendant’s better argument is the one that she
made to the trial court—that, although evidence that she
attended a victim impact panel was relevant and admissible
as to her mental state, evidence of her prior DUII arrest
and participation in a diversion program to avoid a conviction was relevant only as propensity evidence. The gist of
that argument is that one can reasonably infer from a prior
DUII arrest or conviction that a person is aware that driving under the influence of intoxicants is illegal, but that it
does not necessarily follow that the person has a greater
awareness than anyone else that it is dangerous to persons
or property. But we must reject that argument too, because
it is at odds with existing case law, and we are unpersuaded
that Skillicorn implicitly overruled the existing case law. We
understand existing case law to establish that a prior DUII
arrest, charge, or conviction is relevant and admissible to
show that the defendant was aware of the dangers of driving
under the influence of intoxicants at the time of the charged
offense, if that offense involves recklessness, and that that
is so regardless of whether the prior arrest, charge, or conviction is tied to a diversion agreement that required attendance of a victim impact panel. Even if we were inclined to
revisit our own case law, we would be bound by the Supreme
Court’s decision in Moore/Coen, and we see no way to distinguish an arrest and charge from a conviction for present
purposes.
         The fact that the evidence is relevant and admissible under existing case law does not foreclose the possibility
that there is “character reasoning implicit to some degree” in
its relevance or that “a jury or factfinder could perceive the
evidence as relying on character and action in conformity
with character as its source of relevance to the trial.” Davis,

defendant’s previous crimes only in deciding whether he had a sexual purpose
when he touched the victim. However, the evidence’s relevance to even that single
element depended on a propensity inference, namely that, because the defendant
had previously sexually assaulted women after attacking them, he was more
likely to have intended to sexually assault this victim after attacking her. The
state’s theory was that “when defendant isolates and attempts to grab women,
he does so in order to sexually assault them—rather than to simply assault or
rob them, or to commit other, nonsexual crimes.” Id. at 753. In this case, by contrast, the evidence’s relevance to the element of recklessness on the theory that
it shows defendant’s awareness of the danger of driving under the influence does
not, according to our case law, depend on a propensity inference.
220                                                        State v. Sullivan

372 Or at 636 (first emphasis in original; second emphasis
added). Here, it seems to us that the jury could perceive the
evidence of defendant’s prior DUII arrest and diversion as
showing that she has a propensity to drive under the influence of intoxicants and, thus, is more likely to have done so
in this instance—as relevant to her conduct, rather than
her state of mind. But that problem can be addressed with
a jury instruction, as recognized in Davis. The court was
not required to exclude the evidence, as defendant contends,
but was instead permitted to address the issue with a jury
instruction.5 See State v. Schmidt, 

,

, rev den, 

 (2019) (where the defendant was charged with DUII and reckless driving, the trial
court did not abuse its discretion under OEC 403 by admitting evidence of two prior DUII convictions, as relevant to
whether he drove with a reckless mental state, with a limiting instruction).
           Affirmed.




    5
      We recognize that the trial court did not actually give a limiting instruction when the time came to instruct the jury in this case, perhaps having forgotten about it, and neither party raised the issue. Any potential error in not giving
the instruction is not at issue in this appeal, as defendant has not assigned error
to the jury instructions.