State v. Taylor

536                             July 5, 2024                              No. 24

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                  KEVIN LAVIN TAYLOR,
                  aka Kevin Lavan Taylor,
                    Petitioner on Review.
          (CC 17CR26979) (CA A168298) (SC S070387)

   On review from the Court of Appeals.*
  Argued and submitted March 4, 2024, at Lewis & Clark
Law School, Portland, Oregon.
    David L. Sherbo-Huggins, Deputy Public Defender, Office
of Public Defense Services, Salem, argued the cause and
filed the briefs for petitioner on review. Also on the briefs
was Ernest G. Lannet, Chief Deputy Defender, Criminal
Appellate Section.
   Patrick M. Ebbett, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Before Flynn, Chief Justice, and Duncan, Garrett,
Bushong, James, and Masih, Justices, and Balmer, Senior
Judge, Justice pro tempore.…
   BUSHONG, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
   James, J., concurred and filed an opinion.



______________
      * Appeal from Multnomah County Circuit Court, Benjamin Souede, Judge.

, 

 (2023).
   … DeHoog, J., did not participate in the consideration or decision of this case.
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 (2024)   537
538                                             State v. Taylor

         BUSHONG, J.
         The Oregon Evidence Code generally prohibits the
use of “other acts” evidence to “prove the character of a person in order to show that the person acted in conformity
therewith.” OEC 404(3). In this criminal case, we must
decide whether the trial court violated that prohibition
when it received video footage showing that defendant had
engaged in a very similar course of conduct immediately
before the criminal activity for which he was convicted.
         Defendant was charged with third-degree sexual
abuse for making sexual contact with a woman who was
studying alone at a community college library. At trial, the
state offered “other acts” evidence consisting of security video
footage showing that, just before defendant’s encounter with
the victim, he sat down next to another woman in the library
and encroached on her space in a similar manner, until she
got up and left. Defendant argued that the video footage was
inadmissible because its relevance depended on characterbased reasoning—namely, that it showed that he had a propensity to act inappropriately towards women. The trial court
disagreed and admitted the evidence. The Court of Appeals
affirmed.
          We allowed review and now affirm the decisions of
the trial court and the Court of Appeals. The video footage,
when considered along with the victim’s testimony, was admissible to establish that, on the afternoon of the charged offense,
defendant had engaged in an unusual pattern of behavior consistent with a person seeking an opportunity to make sexual
contact with a woman studying alone in the library. That fact
is relevant to inferring that defendant committed the charged
act and did so intentionally. Because that inference is based
on defendant’s ongoing state of mind and course of conduct
when he encountered the victim in the library that afternoon,
it does not depend on impermissible character reasoning.
                     I. BACKGROUND
A. Facts and Trial Court Proceedings
         We take the facts from the trial court record. The
victim testified that she was studying alone at a table divided
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into study carrels on the first floor of a community college
library when defendant sat down next to her. Over the next
several minutes, defendant slowly encroached on her space,
inching his legs and body closer to her, eventually grazing
her leg. She stomped on his foot to get him to back off, but he
continued to sidle closer to her, until she felt his hand reach
under the desk and touch her vaginal area. She stood up, collected her things, and moved away, reporting the incident to a
librarian and campus security. Defendant was charged with
third-degree sexual abuse for his conduct in that encounter.
         The state planned to introduce as evidence security
video footage, which had been recorded just minutes before
defendant’s encounter with the victim in this case.1 That
video showed defendant entering the library, going upstairs,
selecting a book, and then sitting down next to a woman
who was studying alone at a table divided into study carrels,
even though there were many other places to sit. Over the
course of about 30 minutes, defendant moved closer to the
woman, extending his leg until his foot was under her chair.
The woman got up and left shortly thereafter. Defendant
then got up and went downstairs, where he sat down in a
chair next to the victim, who was also studying alone.
         Before trial, defendant moved to exclude that video
footage, arguing, among other things, that it was not relevant to any fact at issue in the case, and that, even if it were,
the footage would be “pure propensity” evidence and should
be excluded under OEC 404(3).2 The prosecutor responded
that the video footage, as “other acts” evidence, was relevant and admissible to show defendant’s intent—meaning that defendant had engaged in knowing or intentional
conduct—when he touched the victim, and to demonstrate
defendant’s motive, plan, and preparation. The prosecutor
added that the footage showed conduct that was consistent
with the victim’s testimony, and both incidents had occurred
   1
       Defendant’s encounter with the victim was not captured on security video.
   2
       OEC 404(3) provides:
       “Evidence of other crimes, wrongs or acts is not admissible to prove the
   character of a person in order to show that the person acted in conformity
   therewith. It may, however, be admissible for other purposes, such as proof
   of motive, opportunity, intent, preparation, plan, knowledge, identity, or
   absence of mistake or accident.”
540                                                          State v. Taylor

in succession in the same library, on the same afternoon, in
nearly identical study carrel setups.
         After hearing argument and reviewing the video,
the trial court ruled that it was admissible, concluding that
it was relevant for a nonpropensity purpose: to prove motive,
plan, preparation, and absence of mistake. The court
explained “the motive part” as “being seated close enough
to a woman sitting alone to allow for, at the very least, putatively incidental touching and potentially would allow for
more than incidental touching.”3
         At trial, the video was played for the jury during
the state’s case-in-chief and during the state’s crossexamination of defendant. Defendant testified at trial that,
as shown on the video footage, he sat down next to the first
woman to read and that he stretched his legs because he has
a bad back. Defendant denied stretching his legs toward the
victim or encroaching on her space after sitting down next
to her, denied that she stomped his foot, and denied that he
touched her. The jury convicted defendant of third-degree
sexual abuse. He appealed, contending that the trial court
erred in admitting the video footage.
B.    Appellate Proceedings
         The Court of Appeals addressed defendant’s claim
of error in two separate written opinions. In its first opinion, the Court of Appeals concluded that “the trial court did
not err in admitting the challenged security-video footage
for the purpose of establishing that defendant had a plan
and acted in accordance with that plan.” State v. Taylor, 

, 

 (2021) (Taylor I). We vacated
that decision and remanded the case to the Court of Appeals
for reconsideration in light of our most recent OEC 404(3)
decision, State v. Jackson, 

, 

 (2021),
which described a two-part test for determining whether
“other acts” evidence rests on propensity reasoning. State v.
Taylor, 

, 

 (2022).
    3
      The court then engaged in OEC 403 balancing, weighing the probative
value of the evidence against any unfair prejudice to the defendant, concluding
that a limiting instruction would be sufficient to mitigate any possible unfair
prejudice from the video. Defendant does not assert on appeal that the trial court
erred in its OEC 403 balancing.
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         On remand, the Court of Appeals again determined
that the trial court did not err in admitting the video footage. The court concluded, “using the analysis of Jackson,”
that the state had “sufficiently ‘articulated the chain of
inferences that makes the evidence relevant to an identified purpose and explained how that chain of inferences
does not depend on the actor’s character.’ ” State v. Taylor,

, 

 (2023) (Taylor II) (quoting Jackson, 

). The court explained that “[t]
he inferences the state identified—those of an unlinked or
spurious plan—did not require character reasoning to connect the other act to the charged act.” Taylor II, 326 Or at
408-09.4 Thus, the court concluded, the trial court did not
err “by concluding that the other-acts evidence was relevant
and admissible for the purpose of proving defendant’s plan.”
Id. at 409. We allowed defendant’s petition for review.
                            II. DISCUSSION
A. The Parties’ Contentions
          On review in this court, defendant argues that the
trial court erred in receiving the video footage, contending
that it is character evidence that is inadmissible under OEC
404(3). We review the trial court’s evidentiary ruling for
legal error. Jackson, 

 (applying standard).
         Defendant contends that the “other acts” evidence
at issue in this case is relevant only to show his “character,” leaving the jury to infer that defendant’s sexual contact with the victim was consistent with that character.5

    4
      We explained how a “spurious plan” differs from a “true plan” in State v.
Turnidge (S059155), 

, 

 (2016), cert den, 

(2017). In a “true plan,” the charged conduct and the “other acts” evidence are
“linked”—that is, they are different steps or stages in the execution of a unified
scheme. 

 In a “spurious plan,” the charged conduct and the “other acts” evidence are “unlinked” but are sufficiently similar in nature and proximity to show
that a defendant “engaged in a pattern or systemic course of conduct from which
the existence of a plan [may be] inferred.” 

 (emphasis omitted).
    5
      The parties treat the video footage as “other acts” evidence for purposes
of OEC 404(3) because it depicts acts other than the touching on which the sexual abuse charge was based. We note that the line between acts resulting in
the charge at issue and “other acts” is not always clear, and, as the concurrence
points out, it could be argued that, because the footage shows part of a continuing
course of conduct, it should not be considered “other acts” evidence at all. Because
the state does not make that argument, we do not address it here.
542                                                           State v. Taylor

Defendant reasons that (1) “character” means “propensity”
for purposes of the Oregon Evidence Code; (2) the video footage is relevant only because it shows defendant’s propensity
to behave inappropriately toward women; and (3) the video
footage could lead a jury to infer that, because defendant
had a propensity to act inappropriately toward women, he
touched the victim’s vaginal area because that conduct was
consistent with his character. According to defendant, that
makes the footage inadmissible under OEC 404(3).
          The state contends that, because the footage depicts
defendant’s actions immediately before he encountered the
victim in this case, the evidence showed his ongoing state
of mind in relation to his course of conduct across both incidents. According to the state, the chain of reasoning establishing the probative value of that evidence does not require
an inference about defendant’s character because the jury
would not need to infer from the video footage that defendant is generally inclined to commit this particular type of
bad act, or that defendant had acted in conformity with that
propensity in his encounter with the victim.6
          Defendant responds that the state’s theory of admissibility fails because (1) the state fails to show how the jury
was supposed to infer that defendant had a particular state
of mind from the video footage of his interaction with the
first woman; and (2) any such inference necessarily depends
on propensity reasoning.
          As we will explain, we conclude that the video footage was relevant to show defendant’s state of mind and
course of conduct in seeking out an opportunity to initiate
sexual contact with a woman sitting alone in the library that
     6
       The state contends that the video footage was admissible as “other acts”
evidence under OEC 404(3) and does not rely on OEC 404(4), which provides that,
in criminal actions, evidence of other acts committed by the defendant “is admissible if relevant” unless precluded by certain other rules of evidence or the state
or federal constitutions. We held in State v. Williams, 

, 

(2015), that “the legislature intended OEC 404(4) to supersede OEC 404(3) in
criminal cases, except, of course, as otherwise provided by the state or federal
constitutions.” We clarified that statement in State v. Baughman, 

,

 (2017), explaining that OEC 404(4) supersedes the first sentence
of OEC 404(3) but it “does not supersede the second sentence of OEC 404(3)[.]”
Because the state chose to rely solely on that second sentence of OEC 404(3) in
support of its theory of admissibility, we do not address whether the video footage
was admissible under OEC 404(4).
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 (2024)                                                  543

afternoon. Because defendant’s unusual pattern of behavior
was directed towards two women under near-identical circumstances, one immediately after the other, it is relevant
to show that defendant committed the charged act and did
so intentionally, without relying on any improper propensity
inferences.
B.   Admissibility of “Other Acts” Evidence under OEC 404(3)
         We examined OEC 404(3) in detail in State v.
Skillicorn, 

, 

 (2021), where we held
that evidence that the defendant had driven recklessly in
his neighborhood prior to the night of the charged crimes
was not admissible to prove that he intentionally damaged
another person’s property with a vehicle. We explained that,
in criminal cases, OEC 404(3) prohibits the prosecution
from using “other acts” or other 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.” 

. We explained that the state’s theory of
admissibility of defendant’s prior reckless driving was “to
prove defendant’s character—that when he ‘gets angry, he
acts out’—in order to prove that he acted in conformance
therewith.” 

. That theory, we concluded, was
a propensity-based theory of relevance prohibited by OEC
404(3). 

.
          In reaching that conclusion, we explained the process by which courts should determine whether “other acts”
evidence is admissible. To be admissible, such evidence must
be relevant under OEC 401.7 To establish its admissibility,
the proponent of the evidence “must articulate a theory of
relevance” because “[t]he proponent’s theory of relevance is
critical” to the court’s analysis. 

. That requires the
proponent to “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.” 

    7
      OEC 401 defines “[r]elevant evidence” as “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.”
544                                                            State v. Taylor

         Skillicorn thus requires us to analyze the theory of
relevance articulated by the state as the proponent of the
video evidence to determine whether that theory necessarily
depends on prohibited reasoning about defendant’s character. In this case, the state contends that the video footage is
relevant to show defendant’s state of mind and course of conduct at the time of his encounters with both women in the
library. The state infers from defendant’s state of mind and
conduct at the time that it was more likely that he touched
the victim in a sexual manner, consistent with her testimony, and that he did so intentionally.8
         Although “state of mind” and “course of conduct” are
not expressly included in the list of permissible purposes in
OEC 404(3), that list “is not exclusive.” Skillicorn, 

. And we have cautioned against immediately jumping to
the permissible purposes listed in OEC 404(3) without considering whether the proponent’s theory of relevance relies
on propensity reasoning. 

 at 483 (citing State v. Johns,

, 

 (1986)). We explained that
OEC 404(3) allows for the admission of “other acts” 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.” 

 at 482
(citing OEC 404(3) and Johns, 

 (emphasis added)).9 Thus, we must determine whether video footage showing defendant’s conduct directed towards the first woman
     8
       Defendant contends that the state’s theory of relevance in this court—that
the video footage was relevant to show defendant’s state of mind and course of
conduct—is different from the theories it articulated in the trial court. We disagree. Although the state’s theory of relevance in the trial court was articulated
in terms of several, specific noncharacter purposes identified in OEC 404(3), as
discussed above, the state’s theory of admissibility has always focused on describing the defendant’s state of mind at the time that he engaged in an unusual
pattern of behavior directed towards two different women in the library that
afternoon.
     9
       In Johns, we explained that OEC 404(3) prohibits the admission of “other
acts” evidence “only when the evidence is offered solely to prove” the person’s
character and that the person acted in conformity with that character. 

. In Skillicorn, we overruled Johns “to the extent that it [held] 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.” 

. But we did not overrule other aspects of Johns and, as noted, we cited and
applied those other aspects of the Johns opinion in Skillicorn. See also Jackson,

 n 1 (Garrett, J., concurring) (noting that Skillicorn overruled Johns
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is relevant—without relying on propensity reasoning—to
prove defendant’s state of mind and course of conduct when
he encountered the victim, as the state contends, or whether
its only relevance for that purpose depends on propensity
reasoning, as defendant contends.
C. Defendant’s State of Mind and Course of Conduct
          A defendant’s state of mind “ ‘is often the most difficult element of a crime to prove because many crimes are
unwitnessed and even if a witness is present, the witness
can only surmise the actor’s state of mind.’ ” State v. Moen,

, 

 (1990) (quoting Johns, 

). We have held that “other acts” evidence can be
admissible to show a person’s state of mind at the time of the
charged offense.
         For example, in State v. Salas-Juarez, 

,

 (2010), we determined that a statement made
on the night of the incident at issue was admissible to show
the declarant’s state of mind. The defendant in Salas-Juarez
was charged with murder. The defendant and another man,
Russell, had been involved in a bar fight with six other participants. The victim, Lunsford, was fatally stabbed during
that fight. At trial, the defendant offered testimony from a
witness who had heard Russell, after a minor altercation
with a bartender’s son earlier that evening, stating that he
wanted to “slash” him.10 At trial, the defendant had argued
that Russell’s statement that he had wanted to “slash” the
bartender’s son was admissible under OEC 404(3) to show
Russell’s motive or intent in support of defendant’s contention that Russell, not the defendant, had fatally stabbed
Lunsford. The trial court disagreed and excluded the statement. We reversed. Identifying the first question as “whether
that evidence was relevant,” we explained that the “threshold for admission of evidence on grounds of relevance is low:
‘Evidence is relevant so long as it increases or decreases,
even slightly, the probability of the existence of a fact that is
of consequence to the determination of the action.’ ” 349 Or

with respect to the doctrine of chances but did not call into question other aspects
of the Johns opinion).
     10
        The bartender’s son was not involved in the fight later that evening that
led to Lunsford’s death.
546                                            State v. Taylor

at 427 (quoting State v. Barone, 

, 

(1999)).
         Applying that standard, we concluded that the evidence of Russell’s statement was relevant because, “[o]ne
inference that the jury was entitled to draw from Russell’s
reaction to the seemingly minor altercation with the bartender’s son was that Russell was in an angry frame of mind
on the night in question.” 

. Russell’s statement,
we explained, “was at least some evidence of his general state
of mind at the time that he made the statement.” 

 Then,
from evidence of Russell’s later actions, the jury “reasonably
could infer that Russell’s state of mind was an ongoing one.”

 Those inferences, in turn, made it more probable that
Russell—not the defendant—had slashed at Lunsford with
his knife. Thus, we concluded that “evidence of Russell’s
state of mind would permit the jury to conclude, through
a short series of inferences, that Russell [had] stabbed [the
victim].” 

.
         After concluding that the evidence was relevant to
Russell’s state of mind, we considered whether OEC 404(3)
precluded its admission. We assumed that the statement
was an “other act” for purposes of OEC 404(3) and concluded
that it was admissible under the rule. We explained that
Russell’s statement about wanting to “slash” the bartender’s
son, made an hour and a half before the fight that led to
Lunsford’s death, “was evidence from which the jury reasonably could infer that Russell was generally in an angry or
violence-prone mood—especially when it is coupled with his
later behavior in instigating the fight” that led to Lunsford’s
death. 

.
         We have also held that a defendant’s course of conduct close in time to the charged offense was admissible to
show the defendant’s state of mind at the time of the offense.
For example, in State v. Lewis, 

, 

 (2012), we concluded in a criminally negligent homicide
case that “evidence of a person’s driving before the time and
place of an accident is relevant to that person’s state of mind
at the time of the accident.” We explained that evidence of
the defendant’s erratic driving 10 to 15 minutes before the
collision was “logically relevant to the issue of defendant’s
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state of mind at the time of the collision.” 

 (citing Salas-Juarez, 

); see also State v. Betts,

, 

 (1963) (stating that “the host’s
driving prior to the time and place of the accident has been
considered relevant upon the issue of what was the host’s
state of mind at the time of the accident”).
         Applying those principles here, we agree with the
state that the video footage of defendant’s interaction with
the first woman was relevant to show defendant’s state of
mind just minutes later when he approached the victim. A
jury could reasonably infer defendant’s state of mind from
the video footage and the victim’s testimony—that is, that
he was looking for an opportunity, under the guise of putatively incidental physical contact, to sexually touch a woman
studying by herself. That state of mind was relevant to show
that defendant in fact had touched the victim in a sexual
manner, and that he did so intentionally. That theory of relevance does not rely on impermissible propensity reasoning.
          The first step in identifying impermissible propensity reasoning, as we explained in Skillicorn, “is inferring the defendant’s subjective character, disposition, or
propensities” from the evidence. Skillicorn, 

.
That step “gives rise to the risk that the factfinder’s verdict will be affected by prejudice,” that is, the risk that the
jury could convict the defendant “for being a criminal rather
than for [committing] the specific crime” charged. 

 (citing
Edward J. Imwinkelried, 1 Uncharged Misconduct Evidence
§ 2:19, 2-142 (2013)). The second step in propensity reasoning is “inferring the defendant’s conduct on a particular
occasion from his or her subjective character.” Id. (citing
Imwinkelried, 1 Uncharged Misconduct Evidence § 2:19 at
2-143). That step “gives rise to the risk that the factfinder
will ‘overestimate the probative value of character evidence.’ ” Id. (citing Imwinkelried, 1 Uncharged Misconduct
Evidence § 1:3 at 1-29).
         Neither impermissible inference is necessary to the
state’s theory of relevance here. The video footage of defendant’s encounter with the first woman in the library was
not used to invite the jury to infer that it was in defendant’s
general character to make unwanted sexual contact with a
548                                           State v. Taylor

woman sitting alone if the opportunity arose. Rather, it was
used to show that defendant had a particular state of mind
during the short period in which he approached both women.
There was little risk that the jury might convict defendant of
sexual abuse for being the type of person who would commit
sexual abuse after viewing the footage because the video did
not show any sexual contact. Nor was there too much risk
that the jury might overestimate the probative value of the
video footage by inferring that, because he encroached on
the first woman’s space, he had the character of a sexually
abusive person and acted in conformity with that character
during his encounter with the victim.
         The video footage and the victim’s testimony in this
case together show an unusual pattern of behavior of finding a woman sitting alone in the library, choosing to sit next
to the woman—despite the availability of other seats—and
slowly encroaching on the woman’s space. From that pattern, a jury could infer that defendant’s state of mind when
he entered the library included looking for an opportunity
to make sexual contact with a woman studying by herself.
The fact that defendant did not make sexual contact with
the first woman he encountered—possibly because she left
before the opportunity arose—does not make the inference
impermissible or the footage irrelevant. Because defendant’s
next encounter with a woman sitting alone in the library—
the victim—was so close in time, proximity, and circumstances as his encounter with the first woman, a jury could
infer that defendant’s state of mind when he encountered
the first woman continued through his encounter with the
victim.
         To be admissible under OEC 404(3), the state did
not have to establish that the inference that defendant was
looking for an opportunity to make sexual contact with a
woman studying by herself was the only logical inference
the jury could make. A jury could permissibly infer from the
video footage that defendant did not intend to touch either
woman in a sexual way, consistent with defendant’s testimony. But the inference that defendant was looking for a
woman sitting alone that he might touch sexually if he had
the opportunity, ultimately resulting in his sexual contact
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with the victim, is also a permissible inference. If, as here,
there is a relevant permissible inference from “other acts”
evidence that is not based on showing defendant’s character
or that he acted in conformity with that character, the evidence is admissible under OEC 404(3).11
         We conclude that the video footage was admissible
as “other acts” evidence under OEC 404(3) because it was
relevant to show defendant’s state of mind and course of conduct at the time of his encounter with the victim and it was
not relevant solely to show defendant’s character or that he
had acted in conformity with that character.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
          JAMES, J., concurring,
          The rules of evidence can be seen as a complex
and intricate machine. Multiple rules apply to any piece of
evidence, and each rule itself has multiple subcomponents
and parts all operating together. Each of those parts must
be in good working order for the entire machine to operate
efficiently. This court’s jurisprudence around the Oregon
Evidence Code has a maintenance aspect—when we take
a case, we focus on a subcomponent of the greater evidentiary mechanism, sometimes to remind and highlight to
the bench and bar the function that subcomponent plays; at
other times, to tune a component when we perceive that its
application has become misaligned, or out of intended specifications. We do not serve the health of the greater machine
by endlessly tuning only one subcomponent.
         OEC 404(3) has within it many subparts. What
is an “act”? What is an “other” act? What is an “other act”
that “proves the character?” What is “character”? Our OEC
404 cases have covered a small part of OEC 404—focusing,
again and again, on why some piece of evidence is relevant
to intent, or motive, or some other example of noncharacter propensity reasoning—in my view, at the expense of

    11
       Any other possible inferences may be pertinent to whether the evidence
should be excluded under OEC 403, and, if not, whether a limiting instruction
should be given. However, defendant did not challenge the trial court’s ruling
that OEC 403 does not preclude admission of the video footage evidence.
550                                                               State v. Taylor

the other aspects of OEC 404, many of which are predicate
threshold issues. As a result, I’m concerned that one subpart
of OEC 404(3) is carrying the entire weight of reasoning for
all other acts jurisprudence in Oregon—weight that should
be distributed more evenly across all aspects of the rule.
Returning to the analogy, we are repeatedly tuning one
part of the machine, while ignoring other parts that have
never been serviced, and the result, in my view, is that OEC
404 analysis in our state is not firing on all cylinders.
         In this case, I concur in the result the majority
reaches—OEC 404 did not require the exclusion of the video
footage in this case. I have no quibble with the majority’s reasoning. Under different circumstances I would agree with it—
but here, I simply view it as unnecessary. In accepting this
case for review, we added a question for the parties: “whether
the doctrine of res gestae evidence, as it has been applied in
the context of Federal Rule of Evidence 404(b), is applicable to
Oregon Rule of Evidence 404(3).” Although, as I will explain,
that doctrine has some problems, its core distinction between
extrinsic and intrinsic acts remains an essential component
of other acts analysis. OEC 404(3) provides that “[e]vidence
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.” Before a court engages in an
extended OEC 404 analysis of proffered evidence, a threshold
question must be answered: Is this an “other” act. I conclude
that the video evidence was not an “other” act for purposes
of OEC 404. With that threshold not met, the inquiry ends,
and I need not consider whether it was, or was not, offered
to “prove the character of a person in order to show that the
person acted in conformity therewith.”1
     1
       An astute reader may conclude that something in our approach to this case
is slightly off. That is correct. This case was litigated, at trial, before the Court of
Appeals, and before us, under OEC 404(3). However, as we have made clear, the
admission of other acts of a defendant in a criminal trial in Oregon is governed by
OEC 404(4), not OEC 404(3). State v. Williams, 

, 

 (2015).
    However, as we have also stated, OEC 404(4) is subject to OEC 403 balancing.

; see also State v. Baughman, 

, 

 (2017)
(same). And we have held that engaging in an OEC 404(3) assessment can be
valuable to accurately assessing the probative value and prejudicial effect of other
acts evidence under OEC 403. Williams, 

. Thus, to the extent I discuss
OEC 404(3), that should be understood merely as a conceptual aid in performing
what is actually happening—the OEC 403 balancing required by OEC 404(4).
Cite as 

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            I. PROCEDURAL BACKGROUND
          I find it useful to clarify an aspect of the procedural
background of this case. Defendant was originally charged
in a multicount information with crimes against three
people. Count 1 alleged sexual abuse in the third degree
against one known victim. That person was located on the
first floor of the library. Count 3 alleged sexual abuse in the
third degree against a known victim, but on an incident
alleged to have occurred months earlier. Counts 2 and 4,
which the state acknowledged were alternative pleadings
of a single crime, alleged sexual abuse in the third degree
or harassment against a different unknown victim—the
person depicted in the video, occurring moments before the
allegations in Count 1. That unknown person was on the
second floor of the library and was the first victim defendant
encountered and attempted to assault, after entering the
library. After the first victim left, defendant proceeded to
the first floor of the library where he encountered the victim
of Count 1. However, with respect to that victim, a pillar
blocked the line of sight of the video surveillance system.
         Defendant challenged the propriety of joining the
counts and, in the alternative, moved to sever them. The
trial court found that the state had properly joined the incidents and denied the motion to sever. The court based its
ruling, as to Count 3, on the similarity of conduct. But, as to
the issue of joinder and severance of Counts 1, 2, and 4, the
trial court’s decision turned on the state’s allegation that
the incidents were part of one continuous criminal episode.
After the court declined to sever the counts and made further pretrial rulings, defendant then executed a written jury
waiver only as to Counts 2 through 4. The trial proceeded,
therefore, as a jury trial with respect to Count 1 involving
the second victim, and a bench trial on Counts 2 through 4,
which included, as part of Counts 2 and 4, the unknown first
victim from the incident immediately prior to the incident
forming the basis of Count 1.
        After executing the jury waiver, defendant moved
to exclude the video evidence. Initially that argument was
based on relevance. The trial court clarified with counsel:
552                                              State v. Taylor

   “I’m sorry. Just so I can understand the motion. You’re not
   arguing that that isn’t relevant to Counts 2 and 4, which
   are being tried before the Court.”
Defendant did not argue that the video was not relevant evidence as to Counts 2 and 4, but argued it was irrelevant as
to Count 1, being tried to the jury. Defendant argued that, if
the court found it was relevant, it was nevertheless excludable under OEC 404.
         Having clarified the background, I turn to my reasoning as to why the video depicting the incident forming
the basis of Counts 2 and 4 was not an “other” act for purposes of OEC 404 in the trial on Count 1.
        II. RES GESTAE AND THE INTRINSIC-EXTRINSIC DISTINCTION
         Res gestae is a common-law concept meaning “things
done.” Black’s Law Dictionary 1423 (9th ed 2009). The concept has its origins in the context of hearsay and stands for
the proposition that when “conduct and the accompanying
words [are] all part of the same transaction or the ‘things
done,’ and if the conduct [is] admissible, so [are] the words.”
Chris Blair, Let’s Say Goodbye to Res Gestae, 33 Tulsa
L J 349, 350 (1997); see also James B. Thayer, Bedingfield’s
Case—Declarations as a Part of the Res Gesta, 15 Am
L Rev 1, 2 (1881) (“[w]henever any act may be proved, statements accompanying and explaining that act made by or
to the person doing it, may be proved if they are necessary to understand it.”); Kenneth S. Broun, McCormick on
Evidence § 218 (6th ed 2009) (explaining hearsay origins of
res gestae).
         The doctrine quickly escaped the confines of hearsay, however, and found its application in the context of
potentially excludable “other acts” evidence establishing
character—what we now refer to as potential 404 evidence.
One of the earlier publications in the United States of
res gestae reasoning in the context of other acts evidence
(although the term was not used) occurred in 1829. Walker
v. Commonwealth, 28 Va (1 Leigh) 574 (1829). There, the
defendant was charged with theft of a watch, and the state
introduced the uncharged “other act” of the theft of a cloak
Cite as 

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which was thoughts to have occurred at the same time. 

The Virginia court concluded that evidence of the theft of
the cloak was not an “other” act that could be excluded:
   “It frequently happens, however, that as the evidence of circumstances must be resorted to for the purpose of proving
   the commission of the particular offence charged, the proof
   of those circumstances involves the proof of other acts,
   either criminal or apparently innocent. In such cases, it is
   proper, that the chain of evidence should be unbroken. If
   one or more links of that chain consist of circumstances,
   which tend to prove that the prisoner has been guilty of
   other crimes than that charged, this is no reason why the
   court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced
   in evidence, that they cannot be departed from with propriety; and there is no reason why the criminality of such intimate and connected circumstances, should exclude them,
   more than other facts apparently innocent.”

.
         The doctrine has a long and complicated history in
the context of the common law of evidence, and its expansion and eventual misuse became extensively criticized. But
with the move away from the common law to statutory codification of rules of evidence the more unobjectionable core
of res gestae remained. In the context of the Federal Rules
of Evidence, that core concept is present in the “inextricably
intertwined” doctrine.
         As explained by the DC Circuit Court of Appeals:
   “A threshold question in determining the admissibility of
   evidence of other crimes and bad acts is whether the evidence, in actuality, relates to acts unconnected with those
   for which the defendant is charged, or instead is intertwined
   with the commission of charged crimes. Acts ‘extrinsic’ to
   the crime charged are subject to [FRE] 404(b)’s limitations;
   acts ‘intrinsic’ to the crime are not. … In other words,
   [FRE] 404(b) only applies to truly ‘other’ crimes and bad
   acts; it does not apply to ‘evidence … of an act that is part
   of the charged offense’ or of ‘uncharged acts performed contemporaneously with the charged crime … if they facilitate the commission of the charged crime.’ ”
554                                                           State v. Taylor

United States v. McGill, 

 (DC Cir 2016)
(internal citations omitted).2
        There is a split among federal circuit courts about
what, precisely, it means for evidence to be intrinsic versus extrinsic. Some circuits employ a “completes the story”
approach, as articulated by the Seventh Circuit:
   “[T]he question is whether the evidence is properly admitted to provide the jury with a ‘complete story of the crime
   [on] trial,’ United States v. Roberts, 933 F2d 517, 520 (7th
   Cir 1991) (internal quotations omitted, brackets in the
   original), whether its absence would create a ‘chronological or conceptual void’ in the story of the crime, see United
   States v. Hattaway, 740 F2d 1419, 1424-25 (7th Cir 1984);
   United States v. Adamo, 882 F2d 1218, 1234 (7th Cir 1989),
   or whether it is ‘so blended or connected’ that it incidentally involves, explains the circumstances surrounding, or
   tends to prove any element of, the charged crime. United
   States v. Bucey, 876 F2d 1297, 1315 (7th Cir 1987). Thus,
   cases applying the ‘intricately related’ doctrine have recognized that evidence concerning the chronological unfolding
   of events that led to an indictment, or other circumstances
   surrounding the crime, is not evidence of ‘other acts’ within
   the meaning of [FRE] 404(b).”
United States v. Ramirez, 

 (7th Cir 1995).
            Similarly, the Second Circuit explained:
   “[E]vidence of uncharged criminal activity is not considered other crimes evidence under [FRE] 404(b) if it arose
   out of the same transaction or series of transactions as the
   charged offense, if it is inextricably intertwined with the
   evidence regarding the charged offense, or if it is necessary
   to complete the story of the crime on trial.”
United States v. Carboni, 

 (2d Cir 2000) (internal citations omitted).
        Other circuits, such as the DC Circuit, have rejected
the “completes the story” approach:
   “[I]n defining the contours of intrinsic evidence that is not
   subject to [FRE] 404(b), we have rejected the rule embraced
   by some of our sister circuits that evidence is intrinsic if

   2
       For purposes of this discussion, FRE 404(b) is the equivalent to OEC 404(3).
Cite as 

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   it ‘complete[s] the story’ of the charged crime. … That is
   because ‘all relevant prosecution evidence explains the crime
   or completes the story’ to some extent, and the fact that ‘omitting some evidence would render a story slightly less complete cannot justify circumventing [FRE] 404(b) altogether.’ ”
McGill, 

 (internal citations omitted).
       Instead, the DC Circuit defines extrinsic evidence
narrowly:
   “We recognize that, at least in a narrow range of circumstances not implicated here, evidence can be ‘intrinsic to’
   the charged crime. [FRE] 404(b), for instance, would not
   have barred testimony from a witness who saw [defendant] put the counterfeit currency in the Pontiac’s console.
   Although such testimony relates to one of defendant’s acts,
   the act is the charged crime of possessing counterfeit currency. … In other words, if the evidence is of an act that is
   part of the charged offense, it is properly considered intrinsic. In addition, some uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.
   See 22 Wright & Graham, supra, § 5239, at 446-47 (noting
   that the ‘inseparable crimes’ interpretation of Rule 404(b)’s
   ‘other’ crimes language ‘seems justifiable when used to
   cover situations where the seller of contraband must necessarily be shown to have possessed it....’).”
United States v. Bowie, 

 (DC Cir 2000).
         The Fifth Circuit defines intrinsic and extrinsic
acts in another way.
In United States v. Williams, 900 F2d 823, 824 (5th Cir
1990), the defendant was charged with conspiracy to possess 670 grams of cocaine with intent to distribute, use of
the mails to facilitate drug trafficking, and use of a person
under eighteen to assist in avoiding detection for drug trafficking. The government advised defendant that it intended
to offer proof of a series of nineteen similar mailings that
had occurred during the two months prior to the charged
conduct. 

 The defendant filed a motion to exclude, and the
trial court granted the defendant’s motion. Id. at 825.
        On appeal, the Fifth Circuit reversed. In reaching
that decision, the court explained that “[t]he proper test to
556                                                 State v. Taylor

apply in deciding the admissibility of ‘similar acts’ or ‘other
acts’ evidence depends upon whether the evidence in question is ‘intrinsic’ or ‘extrinsic’ evidence.” Id. Under Fifth
Circuit precedent, “other act” evidence is “intrinsic” when
the evidence of the other act and the evidence of the crime
charged are “inextricably intertwined” or both acts are part
of a “single criminal episode” or the other acts were “necessary preliminaries” to the crime charged. As applied to this
case, the Fifth Circuit agreed that the evidence offered by
the government did not constitute intrinsic evidence. Id.
        Like the federal courts, state courts have likewise
grappled with the inherited common-law concept of res
gestae and, even when abandoning res gestae, have preserved the critical intrinsic-extrinsic distinction. Colorado
provides a good example. In 1994, still employing res gestae,
the Colorado Supreme Court held that:
   “ ‘Other act’ evidence, however, generally occurs at different
   times and under different circumstances from the charged
   offense. … Indeed, ‘other’ is defined as ‘different or distinct from that or those referred to or implied; different in
   nature or kind.’ Webster’s New World Dictionary 1007 (2d
   College ed. 1974). Further, ‘[t]he policies underlying the
   rule [404(b)] are simply inapplicable when some offenses
   committed in a single criminal episode become “other acts”
   because the defendant is indicted for less than all of his
   actions.’ ”
People v. Quintana, 

 (Colo 1994) (internal citations omitted).
        In Quintana, the state sought to introduce statements of the defendant that were, arguably, disconnected
from the crime of prosecution. However, the court rejected
that argument:
   “Here, the three statements occurred either during or
   immediately subsequent to the murder of [victim]. Thus,
   … no evidence was introduced regarding an ‘other’ act
   or wrong independent from the charged offense. The statements, rather, occurred during a single criminal episode
   starting when defendant, Eubanks and Eloyd entered [victim’s] Jeep and ending the following day when defendant
   was arrested. Thus, we do not believe the three statements
   properly fall within the scope of CRE 404(b).”
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         Like the federal courts, Colorado eventually abolished the use of the res gestae doctrine, and the baggage
the term inherited. Rojas v. People, 

 (Colo
2022). However, the core concept of “other” acts remained,
and the core holding of Quintana survived Colorado’s eliminating res gestae, with the court announcing that it would
“join those courts that generally recognize an intrinsic-extrinsic distinction, with extrinsic acts falling under [FRE]
404(b) and intrinsic acts falling outside the [r]ule’s scope.”
Rojas, 

.
                        III.   OEC 404
         OEC 404(3) provides that “[e]vidence 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.” OEC 404(4) provides that “[i]n
criminal actions, evidence of other crimes, wrongs or acts
by the defendant is admissible if relevant.” Both rules, by
their plain terms, only apply to “acts,” and even then, only
to those acts that are “other” than the acts at issue at trial.
Yet, unlike the federal courts and most state courts, this
court has, thus far, failed to develop any jurisprudence
around what it means to be an act under OEC 404. We have,
instead, employed our worn-threadbare tactic of assuming,
without deciding. In State v. Hayward, we assumed, without
deciding, that “listening to death metal music and believing
in satanism are ‘acts’ under OEC 404(3).” 

,

 (1998). We then similarly dodged the issue in
State v. Salas-Juarez, where we assumed, without deciding,
that “the statement was an ‘act’ within the meaning of OEC
404(3) and concern[ed] ourselves with whether evidence of
that ‘act’ was nonetheless admissible under the rule.” 

, 

, (2010). Having consistently avoided
the initial question of what constitutes an “act,” it is no surprise that litigants and trial courts have failed to tackle the
secondary question of what constitutes an “other” act, and,
consequently, our treatment of that critical issue under OEC
404 is nonexistent.
        I am growing increasingly uncomfortable with
our practice of assuming, without deciding. I would resolve
this case on the question we added when granting review,
558                                               State v. Taylor

regardless of the fact that no party at trial focused on the
intrinsic-extrinsic distinction. Doing so would be similar to
how the First Circuit resolved a similar issue:
   “[Defendant] argues on appeal that the district court
   erroneously admitted the black revolver seized from him
   during his arrest on a separate charge, one week after the
   attempted Londonderry robbery. Prior to trial, [defendant]
   filed a motion to exclude evidence of the revolver. The district court denied the motion and ruled the revolver admissible under [FRE] 404(b) ‘on the issue of identity.’
   “We note at the outset that the district court’s decision
   to admit the gun into evidence as proof of identity under
   [FRE] 404(b) is a bit puzzling. As indicated, [FRE] 404(b)
   governs the admission of extrinsic evidence of ‘other crimes,
   wrongs, or acts.’ Here, the government sought to prove that
   the gun seized from the defendant was the same gun used
   in the attempted Londonderry robbery. In other words,
   the government sought to introduce the gun as intrinsic,
   direct evidence of the charged crime—not as [FRE] 404(b)
   evidence. Because we conclude that the handgun was not
   [FRE] 404(b) evidence at all, we review the district court’s
   admission of the gun applying a more appropriate [FRE]
   401/403 analysis.”
United States v. Shea, 

 (1st Cir 1998).
         However, given that I am writing in this case for
myself, I will refrain from discussing how Oregon might,
eventually, define for itself what constitutes an “other” act
for purposes of OEC 404. Such discussions are more appropriate for the engagement of the full court than a single
judge. And I need not undertake that task here because, in
my view, the video at issue would not be viewed as an “other”
act under any definition currently employed in any jurisdiction, nor any definition I could imagine.
         The video shows defendant entering the location of
the alleged crimes, moments before he supposedly commits
them. This is not a video from days or weeks earlier—this
is a video of defendant’s entry into the location where the
actual occurrences at issue at trial took place. The two incidents in question were both prosecuted, in the same case,
in charging language alleging a continuous criminal episode. The video is direct evidence of Counts 2 and 4, and
Cite as 

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but for the placement of a pillar, would depict defendant
committing Count 1. Counsel cannot artificially create an
OEC 404 “other” act by simply time slicing one single short
video depicting an ongoing criminal episode, into smaller
and smaller increments, then waiving jury as to some, but
not others. If this were a crime of robbery of a convenience
store, we would not sanitize the surveillance video due to
concerns of an “other” act excludable by OEC 404 if it also
showed defendant shoplifting on his walk down the aisle as
he approached the proprietor to rob her.
        In short, I can conceive of no reasonable definition of
an “other” act, for purposes of OEC 404, that would include
the video in this case. Because that threshold requirement
has not been met, OEC 404 is inapplicable, and does not
require the video’s exclusion. Neither the trial court, nor the
Court of Appeals, erred.
        I respectfully concur.