464
Argued and submitted January 15, 2020; decision of Court of Appeals reversed,
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings January 14, 2021
STATE OF OREGON,
Respondent on Review,
v.
DAVID JOHN SKILLICORN III,
Petitioner on Review.
(CC C152791CR); (CA A162831); (SC S066822)
479 P3d 254
To prove that defendant intentionally damaged another’s property with a
vehicle, the state introduced evidence that defendant had driven recklessly on
a prior occasion. The Court of Appeals affirmed the admission of the evidence,
accepting the state’s argument that the evidence was not barred by OEC 404(3),
which prohibits propensity evidence, because, under State v. Johns, 301 Or 535,
725 P3d 312 (1986), the evidence was admissible on a theory of relevance, the
“doctrine of chances,” which the parties regard as a nonpropensity theory of relevance. Held: (1) OEC 404(3) prohibits admission of uncharged misconduct evidence to argue that a person has a propensity to commit certain acts, and therefore, it is more likely that the person committed a similar act; (2) the doctrine
of chances does not create an exception to that prohibition; (3) to the extent the
doctrine of chances provides a basis for the admission of uncharged misconduct
evidence, it only supports arguments based on the objective improbability of the
recurrence of unusual events, like accidents; (4) Johns held that uncharged misconduct evidence could be admitted under the doctrine of chances to support a
propensity argument, a conclusion that was erroneous; (5) the trial court in this
case erred in admitting the prior driving evidence because the state proffered it
to make a propensity argument, and (6) the error was not harmless.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
On review from the Court of Appeals.*
Emily P. Seltzer, Office of Public Defense Services, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the brief was Ernest G. Lannet, Chief Defender.
Lauren P. Robertson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
______________
* Appeal from Washington County Circuit Court, Rick Knapp, Judge. 297 Or
App 663,
443 P3d 683 (2019).
Cite as
367 Or 464 (2021) 465
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Nakamoto, Flynn,
Duncan, Nelson, and Garrett, Justices.…
DUNCAN, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
… Balmer, J., did not participate in the decision of this case.
466 State v. Skillicorn
DUNCAN, J.
In this criminal case, defendant was charged with
first-degree criminal mischief, among other crimes. The
state’s theory regarding the charge was that, after a disagreement with his girlfriend, defendant intentionally drove
a truck into her car. Defendant admitted that he had hit the
car but claimed that he had done so accidentally. Specifically,
he claimed that the truck had malfunctioned and that he
had lost control of it. To rebut that claim, the state sought
to introduce evidence that, after a prior disagreement with
his girlfriend, defendant had driven recklessly. Over defendant’s objection, the trial court admitted the evidence. The
state used the evidence to argue that, when defendant “gets
angry, he acts out,” and that, therefore, the jury should find
that, on the night of the charged crimes, defendant had
acted out by intentionally damaging his girlfriend’s car. The
jury convicted defendant of first-degree criminal mischief
and other crimes.
Defendant appealed, asserting that the trial court’s
admission of the evidence of his prior driving violated OEC
404(3), which provides, in part, “Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity
therewith.” The state argued that the evidence was admissible under the “doctrine of chances,” as applied in State v.
Johns, 301 Or 535,
725 P2d 312 (1986). The Court of Appeals
observed that the evidence appeared to be propensity evidence, which is prohibited by OEC 404(3), but concluded
that it was admissible under Johns. State v. Skillicorn,
297
Or App 663, 681,
443 P3d 683 (2019). We allowed review to
consider whether evidence of uncharged misconduct can be
admitted under the doctrine of chances to support an argument like the one the state made in this case.
For the reasons explained below, we conclude (1) OEC
404(3) prohibits the admission of uncharged misconduct evidence for the purpose of arguing that a person has a propensity to commit certain acts, and therefore, it is more
likely that the person committed such an act during the
incident at issue; (2) the doctrine of chances does not create an exception to that prohibition; (3) to the extent that
Cite as 367 Or 464 (2021) 467
the doctrine of chances provides a basis for the admission of
uncharged misconduct evidence, it does so only to support
arguments based on the objective improbability of the recurrence of unusual events, like accidents; (4) Johns held that
uncharged misconduct evidence could be admitted under
the doctrine of chances to support a propensity argument,
a conclusion that was erroneous; (5) the trial court in this
case erred in admitting the evidence of defendant’s prior
driving because the state proffered the evidence to make a
propensity argument, and (6) the trial court’s error was not
harmless. Therefore, we reverse and remand.
I. HISTORICAL AND PROCEDURAL FACTS
We begin with a brief description of the undisputed historical facts. On the night of the charged crimes,
defendant was using his employer’s truck. After completing a work project, defendant drove the truck to visit his
girlfriend, Walker, who was staying at her mother’s house.
Defendant wanted Walker to leave with him, but Walker
declined to do so because she and her mother, Peterson,
had a work obligation the next morning. Defendant left the
house and got in the truck. Moments later, defendant hit
the back of Walker’s car, which was parked in Peterson’s
driveway. Defendant got out of the truck, returned to the
house, and apologized to Walker and Peterson, who told him
to leave. Defendant got back in the truck and drove away. As
he did, he hit a car parked on the street. The car belonged
to one of Peterson’s neighbor’s, Howard. One of the truck’s
wheels lodged in Howard’s car, and the truck crashed into
some nearby trees. Defendant got out of the truck, collapsed,
and was taken to the hospital. After being released from the
hospital, defendant was arrested. He told the arresting officer that the truck had malfunctioned. Specifically, he told
the officer that, “[w]hen he put the truck in drive and tried
to leave, the truck just took off on him and it jumped forward,” causing him to hit Walker’s car. Defendant also told
the officer that, on the street, the truck “pulled to the right,”
causing him to hit Howard’s car. In addition, defendant told
the officer that the truck belonged to his employer and that
it “had been loaned to him so he could fix issues that were
already going on with [it].”
468 State v. Skillicorn
The state charged defendant with unauthorized use
of a vehicle, first-degree criminal mischief, second-degree
criminal mischief, and failure to perform the duties of a
driver. The first-degree criminal mischief charge alleged
that defendant had intentionally damaged Walker’s car, and
the second-degree criminal mischief charge alleged that
defendant had recklessly damaged Howard’s car.
After jury selection, but before the presentation of
evidence, the prosecutor made a motion for a ruling on the
admissibility of evidence of defendant’s prior driving. The
prosecutor told the trial court that the state’s theory regarding the first-degree criminal mischief charge was that defendant “got angry and rammed [Walker’s] car … on purpose.”
She also told the court that, because she “need[ed] to prove
that the defendant intentionally damaged … Walker’s
car,” she wanted to introduce evidence that defendant had
“driven in the same [or] similar manner in the same neighborhood before, after leaving [Walker’s] residence.” She
stated that, when Howard and another neighbor, Hout,
were interviewed by the police on the night of the charged
crimes, they reported that defendant had “blazed through
the neighborhood before.” She also stated that Howard and
Hout would testify that defendant had previously “crashed
somewhere on the street.”
Defense counsel objected to the admission of the
evidence of defendant’s “prior driving in the neighborhood.”
He also told the trial court that the state had not provided
any information about a prior crash. The court asked the
prosecutor whether the discovery that it had provided to
defendant contained any information about a prior crash,
and the prosecutor said that it had not, but that she had
spoken to Hout and he had told her more about defendant’s
prior driving in the neighborhood. The prosecutor also told
the court that Hout was in the courthouse and that defense
counsel could speak with him.
At that point, the trial court ruled that evidence of
defendant’s prior driving in the neighborhood was relevant,
stating:
“With regard to the incident that occurred prior to this
at … Walker’s residence, I do find that that is relevant
Cite as 367 Or 464 (2021) 469
because we’re back at—we’re at her—this incident on
November 7th is at—at her house, it involves a car that
he—a Toyota Tundra which is an—the unauthorized use
and he’s there at the house on November 7th and then that’s
when the criminal mischief in the first degree occurs and
the state has to prove the intent. And his prior conduct with
regard to the issues with regard to Ms. Walker and what he’s
done before then is relevant.”
(Emphasis added.) The court then balanced the probative
value of the evidence against the risk of unfair prejudice,
pursuant to OEC 403, which provides that courts may
exclude relevant evidence if, among other things, “its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury[.]”
The court then ruled that the evidence was admissible.
After opening statements, defense counsel asked
the trial court to revisit its ruling. Defense counsel told
the court that he had spoken with Hout and learned that,
although the police had been called in response to a prior
incident during which a car had gone off the street and onto
a grassy area in the neighborhood, they had not identified
defendant as the driver of the car in that incident. The prosecutor did not dispute that, but she said that Hout had told
her that he knew defendant was the driver because he saw
defendant later and confronted him about the incident. The
court adhered to its ruling.
At trial, the state presented evidence about the
events on the night of the charged crimes. It also presented
evidence about defendant’s prior driving in the neighborhood. That evidence included testimony about defendant’s
driving in the neighborhood in general, as well as testimony
about the incident during which defendant drove onto the
grassy area.
On direct examination, the prosecutor asked Peterson
to “describe [defendant’s] driving in the neighborhood.”
Peterson responded:
“Well, on one occasion, [defendant and Walker] had
a fight and [defendant] left, got into his truck and just
screamed, I mean, just—it was so loud and it was so fast
it scared me and so I kept [Walker] in the house. And my
470 State v. Skillicorn
neighbors after that event, I think he went up a grassy
knoll area, but came over and said, ‘We have children and
we have pets and we don’t want him in the neighborhood
anymore. We’ve heard his truck. We know the way he drives
and, you know, we’re—we’re going to bring your name up
to the Board.’ And so I thought I might have to move for a
while.”
When questioning Hout, the prosecutor elicited
additional details about defendant’s prior driving:
“Q: Okay. Now, you said that you know the defendant.
And have you witnessed him driving dangerously in the
neighborhood before?
“A: As a matter of fact, I have.
“Q: Okay. Describe that.
“A: After doing a little mental searching around
September 14th, it’s a nice summer day. I’ve got a deck out
front and I’m sitting on my deck. I hear burning rubber.
You know, a car tearing loose. Straight across from me is
a green space. You’ve got a sidewalk, there’s a green berm
and on the other side of that berm is a little water drainage.
I hear—I see the car again coming north down 178th ….
It burns out, hits the curb, goes sideways up into the green
space and then kind of launches back down into the street,
gets squirrely, almost hits Mr. Howard’s car that was inevitably hit in the later incident and I—I run down to the
street just in time to make—to make out the vehicle make
and model as it careens across Walker Road. No stop, probably doing 35 to 40 miles an hour, full accelerator. Never let
off the accelerator.”
Hout testified that Walker came down the sidewalk and
indicated that the driver of the car was her boyfriend. Hout
kept an eye out for defendant and, when he saw defendant
again, he walked up to him and said, “ ‘Hey, man, are you
the guy that came playing Dukes of Hazard through my
neighborhood a couple of weeks ago?’ ” and defendant “said
something to the effect of, ‘What if I am?’ ” Hout then threatened defendant, and defendant threatened him back.
The prosecutor also asked Howard, who owned
the second car that defendant hit, about defendant’s prior
driving:
Cite as 367 Or 464 (2021) 471
“Q. Okay. And you spoke to the police about [defendant] previously driving recklessly in the neighborhood?
“…
“A. … I didn’t know who [Walker] was, but I knew
that the house on the corner where [Peterson] lived at, that
whoever was visiting that residence had a bad habit of racing in and racing out of my neighborhood. And my house is
right on the corner, so my house is the first house that a car
comes to as it pulls into my neighborhood.
“And I’ve got, you know, four sons at the house that play
either—not in the street, but, you know, when you’re playing in the street or you’re running across the street, there’s
a green space directly across the street from my house and
all the neighborhood kids gather there and play, so it—
it’s—it’s very upsetting to me when anybody drives in or
out of my neighborhood extremely fast.
“Q. Okay. And was that what you were talking about
when you told—I think it was Officer Mansfield that you
spoke to. Does that sound right?
“A. Right.
“Q. That he’d blazed out of the neighborhood before.
You used the word ‘blazed.’ Does that sound about right?
“A. Correct.”
In her closing argument, the prosecutor told the
jury that, in order to find defendant guilty of the first-degree
criminal mischief charge, they had to find that “defendant
intentionally damaged or destroyed the property of another,”
specifically, Walker’s car. She also told the jury that “intent”
seemed “to be what the defense is contesting the most” and
that they could rely on defendant’s prior driving to find that
defendant had acted intentionally. She noted that Peterson
had testified that when defendant “gets angry, he acts out.”
As an example of that behavior, the prosecutor referred to
the prior incident when defendant drove onto the grassy
area, which Peterson had mentioned in her testimony. The
prosecutor urged the jury to rely on that incident to infer
that defendant had acted intentionally when he hit Walker’s
car, arguing, “So it makes a little more sense now why
[Peterson] would have said on the stand that when he gets
angry, he acts out. So just like he did prior, proving the intent
472 State v. Skillicorn
after he got into an argument. He took off because he was
angry.” (Emphasis added.)
The prosecutor also referred to Hout’s testimony
about the prior incident. She noted that Hout was concerned
about defendant’s driving and that, when Hout confronted
defendant about the prior incident, defendant did not take
responsibility for it:
“[Hout] was mad, you know. You could tell on the stand
that he was mad, but, you know what, you can understand
why. I mean, after [the prior incident] happened, you know,
they’re concerned about the neighborhood. It’s a quiet
neighborhood with children running around. Mr. Howard
has six children. Right? I think four are still home and
able to play. So, after that happened, he apparently asked
around to find out who it was. He found out that it was
Ms. Walker’s boyfriend who liked to show up.
“So the next time he showed up, they had this confrontation and … Hout said, ‘You’re not—don’t drive like that in
my neighborhood anymore. You know, that’s it.’ What does
defendant say? Something like, ‘What are you going to do
about it?’ or ‘What if it was me?’ You know, just doesn’t take
any responsibility or apologize at all. So, you can kind of
(inaudible) … Hout was upset on the—stand. But, again,
evidence of his intent in this case that he (inaudible) down
there when he was angry.”
(Emphases added.)
Finally, the prosecutor turned to Howard’s testimony that defendant had “ ‘blazed’ out of the neighborhood
before.” She told the jury that they could “consider that evidence for the specific purpose of proving the defendant’s
mental states.”
The jury found defendant guilty of unlawful use of
a vehicle, first-degree criminal mischief for intentionally
damaging Walker’s car, and second-degree criminal mischief for recklessly damaging Howard’s car. It found him not
guilty of failing to perform the duties of a driver.
Defendant appealed, challenging, among other things,
the trial court’s admission of evidence of the prior incident
when he had driven onto the grassy area. Defendant argued
that the evidence was propensity evidence, which is barred
Cite as 367 Or 464 (2021) 473
by OEC 404(3). In response, the state argued that the evidence was admissible under the doctrine of chances, which,
it asserted, is a nonpropensity theory of relevance that, as
applied in Johns, allows for the admission of uncharged misconduct evidence to support an argument that, because a
person engaged in similar behavior on other occasions it is
more likely that the person engaged in the behavior at issue.
The Court of Appeals observed that “[i]t is an
understatement to say that the line between propensity
and nonpropensity inferences is difficult to discern under
Oregon law.” Skillicorn, 297 Or App at 678. It noted that,
when uncharged misconduct evidence is admitted—as it
was in this case and Johns—to prove that a person acted
with a particular intent on a prior occasion and, therefore,
likely acted with the same intent on the charged occasion,
the relevance of the evidence appears to rely “on a classic
propensity theory.”
Id. But, because it was bound by Johns,
the court held that the evidence of defendant’s prior driving
was admissible.
Id. at 681.
II. PARTIES’ ARGUMENTS
On review, defendant renews his argument that the
trial court erred in admitting the evidence of the prior incident in which he drove onto the grassy area. He contends
that, contrary to the Court of Appeals decision based on
Johns, the evidence was not admissible under the doctrine
of chances. Defendant asserts that the doctrine is based on
“the improbability of recurring inadvertent events: that it is
objectively improbable that the same accident will befall the
same person again and again.” Therefore, he reasons that
“[a] deliberate prior act is not admissible under the doctrine of chances because its relevance does not depend
on that probabilistic inference. Instead, it depends on a
propensity inference. The prior act is relevant because if
a person acted deliberately—with bad intent or guilty
knowledge—on a prior occasion, it is likely that he acted
with the same bad intent on a later, similar occasion.”
Defendant urges that, because the doctrine of chances is
premised on the proposition that “multiple similar accidents
are highly improbable,” this court should overrule Johns
to the extent that it allows for the admission of evidence of
474 State v. Skillicorn
deliberate acts. According to defendant, “[a]pplying the doctrine of chances solely to … acts that are accidents, acts
that are claimed to be accidents, or acts for which no cause
is known limits the doctrine to its core logical inference and
prevents the admission of propensity evidence under the
guise of the doctrine of chances.”
Regarding the specific evidence in this case, defendant contends that the evidence of the prior driving incident
was not admissible under the doctrine of chances because,
as proffered by the state, its relevance was “depend[ent]
solely on a propensity inference—that if the defendant drove
dangerously once, he had a propensity to drive dangerously
again—rather than on the proposition that it is unlikely
that multiple, unusual similar accidents befell defendant
multiple times.”1
In response, the state renews its argument that
the evidence was not barred by OEC 404(3) because it was
admissible under the doctrine of chances. In the state’s view,
the doctrine can be used to support the admission of evidence of deliberate uncharged misconduct to argue that,
because defendant acted deliberately before, it is more likely
that he acted deliberately again.
Thus, as framed by the parties, the issue in this
case is whether the evidence of the prior incident in which
defendant drove onto the grassy area was admissible under
the doctrine of chances. Both parties regard the doctrine
as a nonpropensity theory of relevance. There is a debate
among commentators regarding whether the doctrine actually is a nonpropensity theory of relevance. See Skillicorn,
297 Or App at 680-81 (observing that “over the years, legal
1
Defendant makes two alternative arguments. First, he argues that, even
if deliberate acts can be admissible under the doctrine of chances, the evidence
of the prior driving incident in this case was not admissible under the doctrine
because it was insufficient to establish an extraordinary coincidence; according
to defendant, in order to establish such a coincidence, uncharged misconduct and
charged misconduct must have been “unusually frequent, highly similar, and
involve the same mental state,” and here they were not. Second, he argues that,
even if the evidence met the requirements for admission under the doctrine of
chances, the trial court had to exclude it under OEC 403. Because we conclude
that the evidence of the prior incident was not admissible under the doctrine of
chances, given the state’s theory of relevance, we need not, and do not, address
those arguments.
Cite as 367 Or 464 (2021) 475
commentators have criticized the ‘doctrine of chances’ under
multiple theories” and summarizing critiques). But we do not
understand defendant to categorically challenge the doctrine
of chances as a basis for the admission of uncharged misconduct evidence; instead, we understand him to argue only
that the doctrine is more limited than Johns and its progeny
hold and, as properly understood, could not be used in this
case to admit the evidence of the prior driving incident.
III. ANALYSIS
Because defendant argues that the evidence of the
prior driving incident was barred by OEC 404(3), we begin
our analysis with a discussion of that rule. We then examine
the doctrine of chances.
A. The Requirement of a Nonpropensity Theory of Relevance
In order to be admissible, evidence of uncharged
misconduct must be relevant under OEC 401, which provides,
“ ‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the evidence.” Therefore, the
proponent of uncharged misconduct must articulate a theory of relevance. To do so, the 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.
The proponent’s theory of relevance is critical. That
is because, even if evidence is relevant under OEC 401, it
may be barred by another rule, including OEC 404(3), which
provides:
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that
the person acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.”
“ ‘Character’ for purposes of evidence law means a person’s disposition or propensity to engage or not to engage
476 State v. Skillicorn
in certain types of behavior.” Laird C. Kirkpatrick, Oregon
Evidence § 404.03, 213 (7th ed 2020). Thus, OEC 404(3) prohibits the use of uncharged misconduct evidence to prove
that a person has a propensity to engage in certain types
of behavior and that the person acted in conformance with
that propensity on a particular occasion. In short, it prohibits “propensity evidence.”
If the proponent’s theory of relevance requires the
factfinder to employ propensity reasoning, then the trial
court cannot admit the evidence based on that theory under
OEC 404(3). State v. Johnson, 340 Or 319, 338,
131 P3d 173
(2006). Evidence is barred by OEC 404(3) if “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.” Id.2
Consequently, in criminal cases, OEC 404(3) prohibits the prosecution from using uncharged misconduct evidence to argue that the defendant has either a general propensity to engage in misconduct or a specific propensity to
engage in misconduct like the charged crime and, therefore,
it is more likely that the defendant committed the charged
crime. The prosecution may not use uncharged misconduct
evidence to prove “that the defendant is either generally a
criminal or more particularly a rapist or burglar.” Edward
J. Imwinkelried, 1 Uncharged Misconduct Evidence § 2:19,
2-139 (2013). As this court has explained, “If the only theme
is ‘once a burglar, always a burglar,’ the evidence cannot be
used as a ticket for admission. That concept does not qualify
prior crime evidence for admission.” Johns, 301 Or at 549.
2
Although OEC 404(3) bars propensity evidence, this court has held that
OEC 404(3) has been superseded by OEC 404(4) in criminal cases, except as
otherwise provided by the state or federal constitutions. State v. Williams, 357
Or 1, 15,
346 P3d 455 (2015). Williams involved charges of child sexual abuse,
and this court held that, in such cases, “ ‘other acts’ evidence to prove character
and propensity” may be admissible, depending on “whether the risk of unfair
prejudice outweighs the probative value of the evidence under OEC 403.”
Id. at
20. At the same time, this court commented that, in cases involving crimes other
than child sexual abuse, the Due Process Clause might prohibit “the admission
of ‘other acts’ evidence to prove propensity.”
Id. at 17.
In this case, the state has expressly disclaimed any reliance on OEC 404(4),
and therefore we do not address it. Like the parties, we focus on whether the evidence of defendant’s prior driving was barred by OEC 404(3).
Cite as 367 Or 464 (2021) 477
The prohibition against propensity evidence can be
traced back “more than three centuries.” Imwinkelried, 1
Uncharged Misconduct Evidence § 2:32 at 2-215. References
to the exclusion of propensity evidence can be found in cases
decided in the seventeenth century, including Harrison’s
Trial, 12 How St Tr 833 (Old Bailey 1692) and Hampden’s
Trial, 9 How St Tr 1053 (KB 1684), which evidence scholars
frequently cite when describing the origins of the prohibition. State v. Williams, 357 Or 1, 8,
346 P3d 455 (2015) (so
stating).
That prohibition is a fundamental aspect of our
legal system. As this court observed in State v. Baker, 23 Or
441, 442-43,
32 P 161 (1893), “[t]he general rule is unquestioned that evidence of a distinct crime unconnected with
that laid in the indictment, cannot be given in evidence
against the prisoner,” and “under no enlightened system
of jurisprudence can a person be convicted of one crime on
proof that he has committed another.” Similarly, in People v.
Molineux,
168 NY 264, 291,
61 NE 286 (1901), the Court of
Appeals of New York explained:
“The general rule of evidence applicable to criminal
trials is that the state cannot prove against a defendant
any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs
that he is guilty of the crime charged. … This rule, so
universally recognized and so firmly established in all
English-speaking lands, is rooted in that jealous regard
for the liberty of the individual which has distinguished
our jurisprudence from all others, at least from the birth of
Magna Charta. It is the product of that same humane and
enlightened public spirit which, speaking through our common law, has decreed that every person charged with the
commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a
reasonable doubt.”
(Internal citations omitted.) See also State v. Houghton,
43 Or 125, 130,
71 P 982 (1903) (describing the prohibition
against propensity evidence as “a universal rule of law”).
The purpose of the prohibition is to protect the fairness of trials and the accuracy of verdicts. As the Supreme
Court summarized in Michelson v. United States, 335 US
478 State v. Skillicorn
469, 475-77,
69 S Ct 213,
93 L Ed 168 (1948), the prohibition
is based on the view that, even though propensity evidence
may be relevant, it is not admissible, because it is unfairly
prejudicial and likely to be overvalued:
“Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution
to any kind of evidence of a defendant’s evil character to
establish a probability of his guilt. … The State may not
show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such
facts might logically be persuasive that he is by propensity a
probable perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them
as to prejudge one with a bad general record and deny him
a fair opportunity to defend against a particular charge.”
(Emphasis added; footnotes omitted.) Similarly, in State v.
Pinnell,
311 Or 98, 105-06,
806 P2d 110 (1991), this court
explained that “[b]ad character evidence (such as other
crimes by the accused) is excluded under the propensity rule,
not because it is irrelevant, but because of the risk of unfair
prejudice to the accused.” Among other things, propensity
evidence can cause factfinders to “convict for crimes other
than those charged” or “give more weight to the evidence
than it deserves in assessing the guilt of crime charged.”
Id. at 106.
Propensity evidence can have numerous harmful
effects, including those detailed below. It can (1) impair the
opposing party’s ability to present its case; (2) distract and
confuse the factfinder; (3) prejudice the factfinder against
a person; and (4) result in verdicts based on erroneous
assumptions.
First, propensity evidence can impair the opposing party’s ability to present its case because it forces the
opposing party to defend itself against allegations beyond
those in the pleadings. The evidence may take the opposing
party by surprise, a concern reflected in Hampden’s Trial, in
which the court commented that, in a forgery case, it would
not allow the prosecution to present “evidence of any other
forgeries, but that for which [the defendant] was indicted,
because we would not suffer any raking into men’s course
Cite as 367 Or 464 (2021) 479
of life, to pick up evidence that they cannot be prepared to
answer to.” 9 How St Tr at 1103. Similarly, in Baker, this
court commented that, in a criminal case, “[i]t is of utmost
importance to a defendant that the facts given in evidence
by the prosecution shall consist exclusively of the transaction which forms the subject of the indictment, and which he
has come prepared to answer.”
23 Or at 443.3
Second, propensity evidence can distract factfinders. It can result in “confusion of issues and undue consumption of time through what may be, in effect, a trial within
a trial to ascertain the relationship between the purported
other crime and the defendant.” Pinnell, 311 Or at 106.
Third, and perhaps most importantly, propensity
evidence can give rise to prejudice, which can detract from
the factfinder’s ability to neutrally and thoroughly assess
the evidence in the case. It creates a risk that verdicts will
be affected by bias at a conscious or subconscious level.
For example, a juror could decide a case against a party
because, based on evidence of the party’s uncharged misconduct, the juror believes that the party is a bad actor. Or
the juror could believe that the party should be punished
for the uncharged misconduct, especially if the party has
not been held accountable for that misconduct. Or the juror
could believe that, given both the uncharged and charged
misconduct, there is a risk that the party will engage in
misconduct in the future and a verdict against the party
will reduce or prevent that possibility.
In a criminal case, prejudice arising from the
admission of evidence of uncharged misconduct can undermine fundamental constitutional protections, including the
presumption of innocence and the requirement that the
3
The concern about surprise may be less now than when the decisions in
Hampden’s Trial and Baker were issued, given modern requirements for pretrial
discovery, but it remains a concern, as this case illustrates. In order to properly respond to uncharged misconduct evidence, a party needs the opportunity to
investigate the purported misconduct and to prepare to litigate the admissibility
of the evidence under OEC 404(3) and OEC 403. But here, the prosecutor raised
the issue of the admissibility of the evidence of defendant’s prior driving on the
morning of trial, and the evidence included information that had not been provided to defendant in discovery. As a result, the trial court made its initial ruling
on the admissibility of the evidence before defense counsel could investigate the
state’s new information.
480 State v. Skillicorn
prosecution prove the elements of each charged crime
beyond a reasonable doubt. Uncharged misconduct evidence
may cause a factfinder to shift the burden of proof to the
defendant. A juror may not believe that a defendant who has
engaged in other misconduct should be presumed innocent
of the charged misconduct. In addition, uncharged misconduct evidence may have the effect of lowering the standard of
proof. A juror may not afford a defendant who has engaged in
other misconduct the benefit of a reasonable doubt. “Whereas
[jurors] might have agonized over the possibility of convicting an innocent person, hearing that the accused committed
similar bad acts might make jurors less cautious. At the very
least, jurors’ consciences are eased because they know that
the defendant is not a blameless character.” Tamara Rice
Lave & Aviva Orenstein, Empirical Fallacies of Evidence
Law: A Critical Look at the Admission of Prior Sex Crimes,
81 U Cin L Rev 795, 799 (2013) (footnotes omitted).
Fourth, uncharged misconduct evidence can result
in verdicts based on erroneous assumptions because factfinders may give “more weight to the evidence than it
deserves[.]” Pinnell, 311 Or at 106. They may “misuse the evidence by overvaluing its persuasiveness.” Lave & Orenstein,
81 U Cin L Rev at 798.
“Objections arise from psychological questions surrounding the reliability of character evidence, particularly the
way such evidence is generated in a courtroom. People are
not predictable characters and so psychologists question
whether we can reliably determine how someone behaved
on one particular occasion by reviewing the person’s past
deeds.”
Id. (footnotes omitted). Thus, there is a concern that factfinders “will take what is essentially a weak circumstantial
argument—‘he did it once, he probably did it again,’ or ‘he’s
the type of person who would do such a thing’—and prove
too much with it.”
Id.
Professor Imwinkelried provides a figure to illustrate the dangers posed by propensity reasoning. The figure
breaks down the reasoning into two steps, and Imwinkelried
explains that each of those steps involves a “probative danger” that “creates the risk of a verdict on an improper basis.”
Cite as 367 Or 464 (2021) 481
Imwinkelried, 1 Uncharged Misconduct Evidence § 1:3 at
1-17. The figure, which is based on the use of uncharged
misconduct by the prosecution against a criminal defendant,
identifies the “intermediate” and “ultimate” inferences
involved:
Item of Evidence Intermediate Inference Ultimate Inference
Uncharged act The accused’s per- The accused’s conby the accused sonal subjective bad duct on the charged
character occasion consistent with the bad
character
Edward J. Imwinkelried, Criminal Minds: The Need to
Refine the Application of the Doctrine of Objective Chances
as a Justification for Introducing Uncharged Misconduct
Evidence to Prove Intent, 45 Hofstra L Rev 851, 859 (2017);
Imwinkelried, 1 Uncharged Misconduct Evidence § 2:19 at
2-141.
The first step in propensity reasoning is inferring
the defendant’s subjective character, disposition, or propensities from the uncharged misconduct. Imwinkelried,
1 Uncharged Misconduct Evidence § 2:19 at 2-141. In the
words of OEC 404(3), it is using the uncharged misconduct
evidence “to prove the character of a person.” That first
step gives rise to the risk that the factfinder’s verdict will
be affected by prejudice, as discussed above. For example,
Imwinkelried explains that, “[I]t tempts the jury to decide
the case on an improper basis. The jury may try the defendant for being a criminal rather than for the specific crime
he or she is charged with.” Imwinkelried, 1 Uncharged
Misconduct Evidence § 2:19 at 2-142.
The second step in propensity reasoning is “inferring the defendant’s conduct on a particular occasion from
his or her subjective character.” Id. § 2:19 at 2-143. That
is, in the words of OEC 404(3), using the evidence of the
defendant’s character “to show that the person acted in conformity therewith.” This step gives rise to the risk that the
factfinder will “overestimate the probative value of character
evidence.” Imwinkelried, 1 Uncharged Misconduct Evidence
§ 1:3 at 1-29. As discussed above, the factfinder may believe
482 State v. Skillicorn
that the character is a better predictor of behavior than it
is and, as a result, may give the character evidence “more
weight than it deserves.” Id. § 2:19 at 2-145.4
Although OEC 404(3) prohibits the admission of
uncharged misconduct evidence for propensity purposes, it
does not prohibit the admission of such evidence for other
purposes. Again, it provides:
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that
the person acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.”
(Emphasis added.) By its terms, the list of permissible
purposes is not exclusive. Thus, OEC 404(3) allows for the
admission of uncharged misconduct evidence to prove any
relevant fact other than that a person has a propensity to
commit certain acts and acted in accordance with that propensity on a particular occasion. Id.; Johns, 301 Or at 549.
But, as mentioned, OEC 404(3) prohibits the admission of evidence to prove a fact if proof of the fact relies on
“an inference relating to the [person’s] character or propensities.” Johnson, 340 Or at 338. Consequently, when
ruling on the admissibility of evidence under OEC 404(3),
a trial court must determine the facts—intermediate and
ultimate—that the proponent wants the factfinder to infer
from the evidence. If the inferences involve whether the
defendant has a propensity to commit certain acts and
whether the defendant acted in accordance with that propensity, the evidence is inadmissible. Such evidence is
4
The dangers posed by propensity evidence are so significant that admission
of such evidence in criminal cases may violate the Due Process Clause of the
Fourteenth Amendment. In Williams, this court noted that “ ‘historical practice’
is the primary guide for determining whether an evidentiary rule is so fundamental as to be embodied in the federal constitution,” and that, in United States
v. LeMay, 260 F3d 1018 (9th Cir 2001), “the Ninth Circuit considered the ‘historical practice’ prohibiting the use of ‘other acts’ to prove the charged crime and concluded that ‘the general ban on propensity evidence has the requisite historical
pedigree to qualify for constitutional status.’ ”
357 Or at 17 (quoting LeMay,
260
F3d at 1025). Accordingly, in Williams, this court indicated that, in most criminal cases, the Due Process Clause might “preclude[ ] the admission of ‘other acts’
evidence to prove propensity.”
Id.
Cite as
367 Or 464 (2021) 483
propensity evidence, and thus barred by OEC 404(3), even
if the proponent asserts that it is being offered to prove, for
example, “intent” or “absence of mistake or accident.”
Trial courts “must not jump immediately” to
the purposes listed in OEC 404(3). Johns, 301 Or at 549.
Instead, they must first determine how the proponent
intends to use the evidence and whether that use involves
proving a propensity to commit certain acts. Id.; see also
State v. Hampton,
317 Or 251, 257 n 12,
855 P2d 621 (1993)
(“[C]ourts must be on guard to prevent the motive label from
being used to smuggle forbidden evidence of propensity to
the jury.” (Internal quotation marks omitted.)).
A proponent of uncharged misconduct evidence
might make a general assertion that the evidence is admissible for one or more of the purposes listed in OEC 404(3).
But such an assertion, by itself, is insufficient to allow a
trial court to determine whether the evidence is supported
by a nonpropensity theory of relevance. A proponent should
identify the logical path that it will be asking the factfinder
to follow. As Imwinkelried’s figure, set out above, illustrates, the path may have multiple steps. If the proponent
does not identify each step, the proponent (and the trial
court) may fail to realize that the relevance of the evidence
depends upon propensity reasoning. “Unfortunately,” as
Imwinkelried has observed regarding the use of uncharged
misconduct evidence to prove a criminal defendant’s intent,
“in many cases—especially cases in which the prosecution’s
only tenable theory is the doctrine of objective chances—
the courts often do not demand that the prosecution explain
how the uncharged act is relevant to intent without positing a forbidden, intermediate inference of bad character.”
Imwinkelried, 1 Uncharged Misconduct Evidence § 5:2 at
5-9. Instead, courts simply conclude that “evidence is admissible to prove intent—a generalization that is false when
the prosecution must rely on an intermediate bad character
inference to connect the uncharged act to the ultimate conclusion of intent.” Id.
In this case, the state’s theory of relevance was that
the evidence of defendant’s driving was admissible for the
related purposes of proving his intent and disproving his
484 State v. Skillicorn
claim of accident. Specifically, the state’s theory was that
the evidence was relevant to prove that defendant intentionally drove the truck into Walker’s car and that it did not
malfunction as he claimed. Thus, the state proffered the evidence for two of the purposes listed in OEC 404(3). But, as
just discussed, even if evidence is offered for one of the listed
purposes, it is barred by OEC 404(3) if the proof depends
upon propensity reasoning.
Thus, the question becomes whether the state’s theory of relevance involved propensity reasoning. The state
asserts that it did not, because the evidence was relevant
under the doctrine of chances, which, the state asserts, is a
nonpropensity theory of relevance. In response, defendant
argues that the doctrine does not allow the admission of evidence to support the type of argument that the state made
in this case. To resolve that dispute, we must examine the
reasoning that underlies the doctrine.
B. The Doctrine of Chances
The doctrine of chances is a theory of relevance
based on the objective improbability of the recurrence of
uncommon events. The idea underlying the doctrine is that,
at some point, it becomes unlikely that each event in a series
of similar events can have the same uncommon cause; therefore, if the number of events in a series claimed to have the
same uncommon cause exceeds the number that can reasonably be expected to have that cause, a factfinder can infer
that not all of the events actually have that cause. So, for
example, if a party asserts that all the events in a series of
similar events were accidents, an opponent might rely on
the doctrine of chances to argue that the number of events
exceeds the number of accidents that the party was likely to
suffer, and the factfinder should therefore infer that not all
the events were accidents.5
5
As the Court of Appeals noted in this case, the doctrine of chances is the
subject of debate. Skillicorn, 297 Or App at 680. Some critics argue that it is not
actually a nonpropensity theory. But the parties in this case assume that the doctrine can be used as a nonpropensity theory of relevance to justify the admission
of uncharged misconduct evidence. And they both rely on Imwinkelried’s description of the logic underlying the doctrine. They disagree about whether that logic
justifies the admission of the evidence of defendant’s prior driving in this case.
Consequently, we—like the parties—rely on Imwinkelried’s description of the
Cite as
367 Or 464 (2021) 485
Imwinkelried traces the use of the doctrine of
chances to prove “intent” to Dean Wigmore, who described
the use as follows:
“ ‘§ 302. Theory of evidencing Intent. To prove Intent, as
a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying
different criminal acts, there is employed an entirely different process of thought. The argument here is purely from
the point of view of the doctrine of chances—the instinctive
recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same
result until it is perceived that this element cannot explain
them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute
certainty of inference, the mind applies this rough and
instinctive process of reasoning, namely, that an unusual
and abnormal element might perhaps be present in one
instance, but the oftener similar instances occur with similar
results, the less likely is the abnormal element likely to be the
true explanation of them.’ ”
Imwinkelried, 1 Uncharged Misconduct Evidence § 5:6 at
5-30-31 (quoting 2 John H. Wigmore, Evidence in Trials at
Common Law § 302, 196 (3d ed 1940) (emphases added)). To
illustrate his theory, Wigmore provided an example involving two hunters:
“ ‘[I]f A while hunting with B hears the bullet from B’s
gun whistling past his head, he is willing to accept B’s
bad aim or B’s accidental tripping as a conceivable explanation; but if shortly afterwards the same thing happens
again, and if on the third occasion A receives B’s bullet
in his body, the immediate inference (i.e. as a probability,
perhaps not a certainty) is that B shot at A deliberately;
because the chances of an inadvertent shooting on three
successive similar occasions are extremely small; or (to put
it in another way) because inadvertence or accident is only
an abnormal or occasional explanation for the discharge
of a gun at a given object, and therefore the recurrence of
a similar result (i.e. discharge towards the same object,
A) excludes the fair possibility of such an abnormal cause
and points out the cause as probably a more natural and
usual one, i.e. a deliberate discharge at A. In short, similar
doctrine, and we focus on whether the doctrine, as he describes it, justifies admission of the evidence of defendant’s prior driving in this case.
486 State v. Skillicorn
results do not usually occur through abnormal causes; and
the recurrence of a similar result (here in the shape of an
unlawful act) tends (increasingly with each instance) to
negative accident or inadvertence or self-defense or good
faith or other innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence
of the normal, i.e. criminal, intent accompanying such an
act; and the force of each additional instance will vary in
each kind of offence according to the probability that the
act could be repeated, within a limited time and under
given circumstances, with an innocent intent.’ ”
Id. § 5:6 at 5-31 (quoting 2 Wigmore, Evidence § 302 at
196-97).
According to Imwinkelried, under Wigmore’s theory, “the inference of mens rea arises from the implausibility of the defendant’s claim of ‘successive similar’ innocent acts.” Id. § 5:8 at 5-36. “The defendant claims that he
accidentally discharged the rifle in the victim’s direction on
each occasion; but as the number of ‘accidental’ discharges
increases, the claim of accident becomes less believable.”
Id. § 5:11 at 5-64. As Imwinkelried explains,
“In isolation, it might be plausible that the defendant acted
accidentally or innocently; a single act could easily be
explained on that basis. However, in the context of other misdeeds, the defendant’s act takes on an entirely different light.
The fortuitous coincidence becomes too abnormal, bizarre,
implausible, unusual, or objectively improbable to be believed.
The coincidence becomes telling evidence of mens rea.”
Id. § 5:6 at 5-29-30 (emphasis added). Thus, according to
Imwinkelried, the doctrine of chances can be used to justify
the admission of uncharged misconduct evidence to disprove
a defendant’s claim of successive similar accidents or other
innocent acts when the evidence is sufficient to support
an inference that the defendant’s claim involves a “fortuitous coincidence” that is too “objectively improbable to be
believed.” Id.
As Imwinkelried further explains, “The doctrine
of chances theory is an example of reasoning by process of
elimination. The proponent uses the theory to eliminate
random chance as an explanation for the set of outcomes.”
Id. § 4:1 at 4-31. But, “properly construed, the doctrine of
Cite as 367 Or 464 (2021) 487
chances recognizes the limited probative value of the disproof of the random chance hypothesis.”
Id. § 4:1 at 4-34.
“The only direct inference from the doctrine of chances is
that one or some of the incidents were not accidents.” Id. It
does not prove that any particular incident was intentional,
much less that they all were. Id.
Given the idea that underlies the doctrine of
chances—viz., the objective improbability of the recurrence
of similar, uncommon events—there are two foundational
requirements for its use: similarity and unusual frequency.
First, evidence of uncharged misconduct must be similar
to the charged misconduct. That is because “[a] dissimilar
uncharged incident has at most a negligible effect on the
probability of an accidental occurrence of the social harm.”
Edward J. Imwinkelried, The Use of Evidence of an Accused’s
Uncharged Misconduct to Prove Mens Rea: The Doctrines
Which Threaten to Engulf the Character Evidence Prohibition,
51 Ohio St LJ 575, 589-90 (1990); State v. Leistiko, 352 Or
172, 186,
282 P3d 857, adh’d to as modified on recons,
352 Or
622,
292 P3d 522 (2012) (observing that the number of other
events required will depend on the circumstances, and that,
in Johns, this court stated that “[a] simple, unremarkable
single instance of prior conduct probably will not qualify,
but a complex act requiring several steps, particularly premeditated, may well qualify”).
Second, the number of events in the series must
exceed the number of events that could reasonably be
expected to share the uncommon cause. Thus, in a case
where a person claims that events were caused by accident,
the number of events in the series would have to exceed the
number of accidents that could reasonably be expected to
befall the person. In other words, the number of similar,
uncommon events has to be sufficient to establish a “fortuitous coincidence” that is too “abnormal” or “bizarre” to
be believed. The number of events required will depend on
how rare they are. Wigmore suggested that a single other
event may not be sufficient. Imwinkelried, 1 Uncharged
Misconduct Evidence § 5:7 5-33-34. But Imwinkelried posits
that, if the event is very rare—a “once in a lifetime event”—a
single other event may be sufficient. Id. at 5-35. “The key
is the relative frequency rather than brute number of
488 State v. Skillicorn
incidents.” Imwinkelried, The Use of Evidence of an Accused’s
Uncharged Misconduct to Prove Mens Rea, 51 Ohio St LJ at
591. When determining how many other events are necessary to support an inference of an improbable coincidence, it
may be necessary to consider the circumstances of the person accused of the misconduct. For example, some events
that might be rare for most people might be more common
for people who do certain types of work. Id.
The proponent of the evidence bears the burden of
proving that the foundational requirements are satisfied.
But if either of the two foundational requirements is unmet,
the proponent “has not triggered the doctrine of chances[.]”
Id. at 592. Unfortunately, according to Imwinkelried, when
courts are asked to rule on the admissibility of uncharged
misconduct evidence, they may fail to determine whether
the proponent has satisfied the requirements:
“[I]n a large number of cases in which the courts admit
uncharged misconduct to establish intent and the prosecution’s only conceivable non-character theory is the doctrine
of chances, the court’s analysis is conclusory in the extreme.
Rather than invoking the doctrine and inquiring whether
the prosecution has satisfied the doctrine’s requirements,
the courts advance the broad generalization that similar
misdeeds are admissible to prove intent.”
Imwinkelried, Criminal Minds, 45 Hofstra L Rev at 857
(footnotes omitted).
When applying the doctrine of chances, a factfinder
is asked to consider the likelihood of the recurrence of the
uncommon events. Therefore, Imwinkelried asserts, the
admission of evidence of uncharged misconduct under the
doctrine of chances does not violate the prohibition against
propensity reasoning. To illustrate the difference between
propensity reasoning and doctrine-of-chances reasoning,
Imwinkelried sets out another figure:
Item of Evidence Intermediate Inference Ultimate Inference
An uncharged Considered together The probability of the
event involving with the charged event, accused’s criminal
the accused an objectively improba- state of mind at the
ble coincidence time of one or some of
the events
Cite as 367 Or 464 (2021) 489
Id. at 865. According to Imwinkelried, doctrine-of-chances
reasoning differs from propensity reasoning “with respect
to both of the probative dangers inspiring the character
evidence prohibition.” Id. First, doctrine-of-chances reasoning “does not require the jurors to consciously advert to
the question of the accused’s personal, subjective character.
Rather, they are asked to assess the objective improbability of so many accidents or inadvertent acts.” Id. Second, it
“does not require jurors to use character as a predictor of
conduct.” Id. Rather, “the second step necessitates that the
jurors do what the judge will tell them to do in another part
of the jury charge, namely, draw on their common sense and
knowledge to assess the relative plausibility of the parties’
competing versions of the events.” Id.
The fact that the doctrine of chances is based on the
objective improbability of the recurrence of similar, uncommon events leads us to two conclusions relevant to this case.
First, in cases like this, where the doctrine is used
to prove “lack of accident,” the application of the doctrine
requires an assessment of the odds that all of the events in
a series were accidental; therefore, it does not make sense
to include events in the series that are known not to have
that cause or explanation. Doing so creates a false set. For
example, if the defendant in a criminal case was charged
with theft and claimed that he took the property at issue
by accident, evidence that he had committed theft on two
prior occasions would not be relevant on a doctrine-of-chances theory. Because the prior thefts were intentional,
there would be no reason to ask, “What are the odds that all
three thefts were accidental?” The answer to that question
would be “zero,” because the first two are known to have
been intentional. But the answer would not enable the factfinder to make any determination regarding whether the
defendant has suffered more accidents than could reasonably be expected—which is what the factfinder must determine under a correct application of the doctrine of chances.
To be sure, the prior thefts might be relevant on a propensity theory, but such a theory is prohibited by OEC 404(3).
They might also be relevant on a nonpropensity theory, such
as to prove the existence of a plan, if, for example, the items
that the defendant stole during the prior thefts were used
490 State v. Skillicorn
to commit the charged theft. But they are not relevant on a
doctrine-of-chances theory.
Second, the doctrine of chances can be used only to
support a particular type of argument: an argument about
the objective improbability of certain events. According to
Imwinkelried, that focus is what distinguishes doctrine-of-chances reasoning from propensity reasoning. Thus, the
doctrine of chances cannot be used as a basis for arguing
that, because a person acted in a certain way before, the
factfinder should find that the person has a propensity to act
in that way and, therefore, it is more likely that the person
did so on a particular occasion.
It is often difficult to apply the doctrine of chances
correctly. Just because a factfinder is using a series of events
to assess the odds that the charged event was an accident
does not mean that the factfinder is employing doctrine-of-chances reasoning. The factfinder could be employing propensity reasoning. As we will explain, that is what occurred
in Johns.
C. The Application of the Doctrine of Chances in Johns
In Johns, the defendant was charged with murder
for shooting his second wife. The defendant’s defense was
that the shooting was accidental. Johns, 301 Or at 537-38.
Immediately after the shooting, the defendant called the
police and reported that his wife had fired a gun at him and
that, when he tried to take the gun from her, the gun went off
and she was hit.
Id. To rebut that defense, the state sought
to introduce evidence that, six years earlier, the defendant
had intentionally assaulted his first wife.
Id. at 539-40. The
state argued that the two incidents were similar because,
around the time of each incident, the defendant was having problems in his career and marriage, was financially
dependent on the victim, and had threatened the victim.
Id. at 556. The trial court admitted the evidence over the
defendant’s objection.
Id. at 557. The defendant was convicted, and he appealed.
On review, this court affirmed the admission of the
evidence of defendant’s assault on his prior wife. In doing so,
this court discussed the doctrine of chances, quoting both
Cite as 367 Or 464 (2021) 491
Wigmore and Imwinkelried, as we have above. Johns,
301
Or at 552-55. This court also observed that, according to
Imwinkelried,
“Wigmore’s theory of logical relevance does not depend on
a character inference because the proponent is not asking
the trier of fact to infer the defendant’s conduct (entertaining a particular mens rea) from the defendant’s subjective
character. The intermediate inference is an objective likelihood under the doctrine of chances rather than a subjective
probability based on the defendant’s character.”
Id. at 554. And this court set out Imwinkelried’s figure
describing the inferences involved in doctrine-of-chances
reasoning. Thus, in Johns, this court observed that the doctrine of chances is based on the objective improbability of
the recurrence of uncommon events, like accidents.
But this court did not employ doctrine-of-chances
reasoning. That is, it did not focus on whether the defendant had been involved in more purportedly accidental
shootings or assaults than could reasonably be expected.
That, of course, was because there was no evidence that the
defendant had been involved in any purportedly accidental
shootings or assaults other than the charged one. There was
no claim that the defendant’s prior assault was accidental.
The state’s theory (and all the evidence) was that the prior
assault had been intentional. Thus, the state had used a
prior intentional act to argue that it was more likely the
defendant had acted intentionally when he committed the
charged act. The state had used propensity reasoning, and
this court followed suit. It affirmed the trial court’s admission of the defendant’s assault of his first wife, apparently on
the theory that the assault was relevant “to show that when
similarly agitated in a domestic setting [the] defendant will
act violently and intentionally.” Id. at 551.
In short, this court in Johns described the doctrine
of chances but did not properly apply it. The opinion is internally inconsistent and has created confusion. Although it
acknowledged that propensity evidence is prohibited, it
affirmed the admission of such evidence. And it has led
to overly broad statements regarding the admissibility of
uncharged misconduct evidence, which essentially state
492 State v. Skillicorn
that, if a defendant has intentionally committed other acts
similar to the charged act, evidence of those other acts can
be admitted to prove that the defendant intentionally committed the charged act. See, e.g., State v. Tena, 362 Or 514,
524,
412 P3d 175 (2018) (quoted by the state for the proposition that the simple recurrence of an act “ ‘increases the
likelihood of a mens rea or mind at fault’ ”); Leistiko, 352 Or
at 182 (describing the doctrine of chances as allowing for the
admission of uncharged misconduct evidence on the theory
that “the more often [a] defendant performs the actus reus,
the smaller is the likelihood that the defendant acted with
an innocent state of mind”). Those statements are false, to
the extent that they state that uncharged misconduct evidence can be admissible to show that a defendant has a propensity to act in a certain way, and, therefore, it is more
likely that the defendant did so when he committed the
charged act.
The state urges us to adhere to Johns. It invokes the
principle of stare decisis, which “promotes our legal system’s
compelling interests in ‘stability,’ ‘predictability,’ and ‘consistency in the law.’ ” (Quoting Farmers Ins. Co. v. Mowry,
350 Or 686, 698,
261 P3d 1 (2011).)
“[S]tare decisis is a prudential doctrine that is
defined by the competing needs for stability and flexibility
in Oregon law.” Farmers Ins. Co., 350 Or at 698. When presented with a challenge to precedent, this court “begin[s]
with the assumption that issues considered in our prior
cases are correctly decided.”
Id. “At the same time,” however,
“this court’s obligation … is to reach what we determine
to be the correct result in each case.”
Id. Consequently, if
a party can demonstrate that we erred in deciding a case,
“because we were not presented with an important argument or failed to … adequately analyze the controlling
issue, we are willing to reconsider the case.”
Id.
Here, several considerations weigh against adhering
to Johns. First, Johns has not led to clarity in the law. It is
internally inconsistent; it describes the doctrine of chances,
but then reaches a result that is at odds with the logic that
underlies the doctrine. Courts struggle to apply, in a principled manner, decisions that are internally inconsistent. As
Cite as 367 Or 464 (2021) 493
a result, affirming or extending internally inconsistent decisions often undermines the stability, predictability, and consistency that stare decisis intends to promote. Second, Johns
has created confusion, which this court has already had to
correct. See, e.g., State v. Turnidge (S059155),
359 Or 364,
434-37,
374 P3d 853 (2016) (noting misapplications of Johns);
Tena,
362 Or at 522 n 1 (observing that, although this court
had previously applied Johns to cases in which uncharged
misconduct evidence was admitted to prove a defendant’s
hostile motive, it applies only when such evidence is used to
prove a defendant’s intent on a doctrine-of-chances theory).
Third, and most importantly, Johns has opened the door to
propensity evidence, which is inconsistent with the longstanding and fundamental prohibition against such evidence.
Therefore, we 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.
D. The Admissibility of Evidence of Defendant’s Prior
Driving
With that understanding of the doctrine of chances,
we return to the particular issue in this case. As mentioned,
defendant argues that the evidence of the prior driving was
not admissible under the doctrine. When reviewing a trial
court’s ruling admitting uncharged misconduct evidence,
this court focuses on the theory of relevance relied on by
the trial court. State v. Garrett, 350 Or 1, 6,
248 P3d 965
(2011). Here, the state’s theory, which the trial court relied
on, was not based on the objective improbability of repeated
accidents. The state did not argue, for example, that the
defendant had experienced an extraordinary number of
vehicle malfunctions. Instead, as recounted above, the state
sought to introduce the evidence to support an argument
that, because defendant had acted a certain way during a
prior incident, the jury should infer that he acted in a similar way during the charged incident. In other words, the
state sought to introduce the evidence to prove defendant’s
character—that when he “gets angry, he acts out”—in order
494 State v. Skillicorn
to prove that he acted in conformance therewith. The state’s
theory was not a doctrine-of-chances theory. It was a propensity theory. Consequently, the admission of evidence on
that theory violated OEC 404(3).
Because we conclude that the trial court erred in
admitting the evidence of defendant’s prior driving, we
turn to the question of whether the error was “harmless.”
Evidentiary error is harmless only when “there is little likelihood that the particular error affected the verdict[.]” State
v. Davis, 336 Or 19, 32,
77 P3d 111 (2003).
The state argues that admission of the evidence was
harmless because there was other evidence of defendant’s
intent, including the locations of the cars when they were hit
and the amount of damage caused. That is certainly true,
but when determining whether the erroneous admission of
evidence was harmless, the question is not whether the state
presented sufficient other evidence to support a conviction.
Instead, it is whether there is little likelihood that the error
affected the verdict. Id. (when determining whether evidentiary error was harmless, this court focuses “on the possible
influence of the error on the verdict rendered, not whether
this court, sitting as a factfinder, would regard the evidence
as substantial or compelling”).
In this case, we cannot conclude that the admission
of the evidence of defendant’s prior driving was harmless.
The evidence related to the central dispute in the case. See
State v. Marrington, 335 Or 555, 566,
73 P3d 911 (2003)
(holding error related to a “central factual issue” was not
harmless). And the state used it as propensity evidence,
encouraging the jury to decide the case based on impermissible character-based reasoning. Such reasoning carries a
risk of causing the verdict to be based on unfair prejudice,
and here, the prosecutor highlighted defendant’s past driving, noting that he had not taken responsibility for it and
that he posed a danger to children in the neighborhood.
Propensity evidence also carries a risk of causing the verdict to be based on an overestimation of the probative value
of the evidence. That is particularly true in cases where the
uncharged misconduct involves a different mental state than
the charged misconduct, like this one, where the prosecutor
Cite as
367 Or 464 (2021) 495
argued that the jury should rely on defendant’s prior reckless driving to infer that he intentionally damaged property.
See Imwinkelried, 1 Uncharged Misconduct Evidence § 5:9 at
5-51 (“perhaps the most important factor” as to whether one
act is sufficiently similar enough to be probative of intent
is whether the acts involved the same state of mind). Here,
because the evidence related to the central dispute in the
case and, as used by the prosecutor, carried significant risks
that the evidence would prejudice the jury against defendant and be overvalued, we conclude that the admission of
the evidence was harmful as to all of the counts on which
defendant was convicted and, therefore, it is necessary to
reverse those convictions.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
