State v. Cave

81

Argued and submitted September 21, 2021, reversed and remanded

July 27, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

JACK ALLEN CAVE,

Defendant-Appellant.

Deschutes County Circuit Court

15FE0090; A172641

516 P3d 279

Defendant appeals from a judgment of conviction for rape, sexual abuse,

and sodomy. The Court of Appeals previously reversed and remanded the case

after the court determined that the trial court erred in admitting testimony from

defendant’s adult daughter that defendant had sexually abused her when she

was a child. On remand, the trial court reinstated the original judgment after

determining that the testimony was admissible under OEC 404(3) for the non-

propensity purposes of showing defendant’s sexual purpose when touching the

victims and for impeaching witnesses’ testimony of defendant’s sexual propriety.

The trial court declined to consider the admissibility of the testimony as pro-

pensity evidence under OEC 404(4) and concluded that the probative value of

the testimony substantially outweighed any unfair prejudice under OEC 403. On

appeal, defendant assigns error to the trial court’s ruling that the testimony was

admissible under OEC 404(3) and argues that the trial court overestimated the

probative value and underestimated the prejudice of that evidence under OEC

403. Held: The trial court erred in admitting the evidence under OEC 404(3)

because the theories of admissibility relied on propensity reasoning. Moreover,

the trial court’s OEC 403 balancing was affected by the initial error.

Reversed and remanded.

Stephen P. Forte, Judge.

Thaddeus Betz argued the cause and filed the briefs for

appellant.

David B. Thompson, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Mooney, Presiding Judge, and Hellman, Judge,

and DeVore, Senior Judge.*

______________

* Hellman, J., vice DeHoog, J. pro tempore.

82 State v. Cave

HELLMAN, J.

Reversed and remanded.

Cite as 321 Or App 81 (2022) 83

HELLMAN, J.

This case, in which defendant was convicted of

sex crimes committed against two of his granddaughters,

is before us for a second time.1 We previously reversed and

remanded the case after we determined that the trial court

erred in admitting testimony, on multiple nonpropensity

theories under OEC 404(3), from defendant’s adult daugh-

ter, J, that defendant had also sexually abused her when

she was a child. State v. Cave, 298 Or App 30, 41, 445 P3d

364 (2019). On remand, the trial court reinstated the orig-

inal judgment after determining that J’s testimony was

admissible based upon different nonpropensity purposes

under OEC 404(3) and that the probative value of the testi-

mony outweighed any unfair prejudice under OEC 403. See

State v. Baughman, 361 Or 386, 410-11, 393 P3d 1132 (2017)

(explaining analysis upon remand in these circumstances).

On appeal, defendant assigns error to the trial

court’s ruling on remand that J’s testimony was admissi-

ble as nonpropensity evidence under OEC 404(3) and argues

that, as a result, the trial court subsequently overestimated

the probative value and underestimated the prejudice of that

evidence under OEC 403. The state now correctly concedes

that its theories for admissibility of J’s testimony depend on

propensity-based reasoning and that the trial court erred

in admitting that evidence under OEC 404(3). The state

argues, however, that the trial court’s erroneous conclu-

sion that J’s testimony was admissible under OEC 404(3)

does not invalidate the court’s OEC 403 balancing where

the court ultimately understood that the evidence was being

used for propensity purposes—to show defendant’s sexual

interest in children.

Upon review of this record, we agree with defendant

that the trial court’s error cannot be reduced to one of “mis-

labeling” and that the trial court’s balancing under OEC

403 was not based on an evaluation of that evidence as pro-

pensity evidence. We ultimately conclude that the trial court

1

Defendant was convicted of two counts of first-degree sexual abuse, ORS

163.427(a), for touching his granddaughter M’s vagina; four counts of first-degree

rape, ORS 163.375(b), for the sexual penetration of his granddaughter, L; and two

counts of first-degree sodomy, ORS 163.405(c) for deviate sexual penetration of L.

84 State v. Cave

erred in admitting the evidence under OEC 404(3) and, for

the reasons below, reverse and remand.2

The facts relevant to this appeal are undisputed

and largely relate to the parties’ arguments to the trial

court on remand and how the trial court understood those

arguments.

On remand, we directed the trial court to engage

in the analysis described in Baughman to consider the

admissibility of defendant’s prior uncharged sexual abuse

of his daughter under OEC 404(3), OEC 404(4), and OEC

403. Cave, 298 Or App at 43. Under that analysis, a trial

court should first determine whether evidence is admissible

under OEC 404(3) for a nonpropensity purpose.3 Baughman,

361 Or at 404. If it is, the trial court then engages in OEC

403 balancing by determining whether the probative value

of that evidence is substantially outweighed by the danger

of unfair prejudice. Id. If the trial court determines that the

evidence is not admissible for a nonpropensity purpose, it

should then determine, first, whether the evidence is admis-

sible under OEC 404(4)4 as propensity evidence and then,

second, whether the probative value of the propensity evi-

dence is substantially outweighed by the danger of unfair

prejudice under OEC 403. Id. at 404-05.

A precise determination about the legal basis for

admitting certain evidence is not an academic exercise in

“labeling.” Whether the evidence is understood as being

admitted as nonpropensity evidence under OEC 404(3) or

as propensity evidence under OEC 404(4) has “a significant

effect on whether the trial court admits that evidence” under

OEC 403. Id. at 405. When evidence is relevant only to prove

2

Because we reverse and remand based on defendant’s first assignment of

error, we do not reach his second assignment of error, in which he argues that the

trial court erred in denying his motion for a new trial.

3

Under OEC 404(3), “[e]vidence of other crimes, wrongs or acts is not admis-

sible 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.”

4

Under OEC 404(4), evidence of other acts by defendant are admissible if

relevant unless otherwise prohibited by the rules of evidence relating to privilege

and hearsay, the Oregon Constitution, and the United States Constitution.

Cite as 321 Or App 81 (2022) 85

a defendant’s character as propensity evidence, “more sig-

nificant due process concerns are implicated, and, generally,

the danger of unfair prejudice will substantially outweigh

the probative value of the evidence.” Id. Thus, the initial

determination about the category of evidence has real-world

implications for its admissibility.

On remand, the state argued that J’s testimony was

admissible under both OEC 404(3) and OEC 404(4). First,

the state argued that evidence that defendant had previously

sexually abused his daughter was relevant under OEC 404(3)

for the nonpropensity purpose of showing defendant’s sex-

ual interest in children. The state argued that evidence that

defendant had previously sexually abused children made it

more likely that he acted with a sexual purpose toward his

granddaughters in the charged instances. Second, the state

argued that J’s testimony was relevant to impeach defen-

dant’s and witnesses’ testimony that defendant generally

behaved with propriety around children. Third, the state

argued that J’s testimony was admissible under OEC 404(4)

to show defendant’s sexual interest in children as propensity

evidence in a child sex abuse case. See State v. Williams, 357

Or 1, 20, 346 P3d 455 (2015) (explaining that, in child sex

abuse cases, other acts evidence used to prove character and

propensity may be admissible under OEC 404(4) depending

on subsequent OEC 403 balancing).

While engaging in the first step of the Baughman

analysis, the trial court agreed with the state that J’s testi-

mony was admissible under OEC 404(3) for the nonpropen-

sity purposes of showing defendant’s sexual purpose when

touching his granddaughters and for impeaching witnesses’

testimony of defendant’s sexual propriety. When subse-

quently weighing the probative value of the evidence under

OEC 403, the trial court found the “[s]tate’s need for the

evidence to be very high” in light of the state’s need to prove

that defendant acted with a “sexual purpose” for the sexual

abuse charges and to counter defendant’s own presentation

of evidence regarding his innocent touching of children. The

trial court determined that the probative value outweighed

any potential prejudice of “confusion of the issues” or “mis-

leading the jury.”

86 State v. Cave

The trial court then expressly declined to consider

the state’s argument that the evidence was admissible for

propensity purposes under OEC 404(4), explaining:

“The third issue is whether the evidence was admitted

for a propensity purpose, and I don’t think they’re going to

reach that issue because it wasn’t admitted for a propensity

purpose. Wasn’t offered for a propensity purpose, it wasn’t

received for propensity purpose, and it’s not necessary for

the Court to reach this issue, and I’m not going to reach the

issue because it was offered and received, as I’ve just out-

lined, for the nonpropensity purposes that I’ve discussed.”

(Emphases added.)

We review the trial court’s determination that

evidence of uncharged misconduct qualifies for admission

under OEC 404(3) or OEC 404(4) for legal error. State v.

Terry, 309 Or App 459, 461, 482 P3d 105 (2021).

We begin by acknowledging that since our earlier

decision in this case, we have clarified the boundaries for the

admissibility of sexual purpose evidence under OEC 404(3).

We have explained that, regardless of whether evidence

is offered to show a defendant’s “sexual purpose” in com-

mitting the charged offense, that evidence is inadmissible

under OEC 404(3) if the theory of admissibility reduces to

an argument about the defendant’s character. State v. Nolen,

319 Or App 703, 710, 511 P3d 1110 (2022); State v. Levasseur,

309 Or App 745, 753, 483 P3d 1167, adh’d to as modified on

recons, 312 Or App 733, 489 P3d 630, rev den, 368 Or 788

(2021). Thus, if the state’s theory of admissibility requires

the factfinder to infer from defendant’s prior actions that he

was more likely to have acted with the same purpose in the

charged instance, that evidence is propensity evidence and

inadmissible under OEC 404(3). Levasseur, 309 Or App at

753 (relying on State v. Skillicorn, 367 Or 464, 483, 479 P3d

254 (2021)).

On appeal, the state concedes that both theories of

admissibility it presented on remand—to show defendant’s

sexual purpose and to impeach testimony of defendant’s sex-

ual propriety—relied on propensity reasoning and J’s testi-

mony was inadmissible under OEC 404(3). That concession

Cite as 321 Or App 81 (2022) 87

reflects the progression in our case law since our preceding

opinion in this case, in which we contemplated that

“[w]hether evidence establishing a defendant’s sexual pur-

pose toward a child is propensity or nonpropensity evidence

is a question that has not yet been resolved by the Supreme

Court, and it is the subject of significant confusion.”

Cave, 298 Or App at 42 n 9.

Although we understand that the trial court on

remand was likely operating with that same understanding,

we agree with the parties that, as informed by subsequent

case law, the trial court erred in admitting the challenged

evidence as nonpropensity evidence under OEC 404(3). To

the extent that J’s testimony was admissible, it was admis-

sible as propensity evidence under OEC 404(4), not as non-

propensity evidence under OEC 404(3).

As we understand it, the state now argues that,

for purposes of affirming the trial court’s OEC 403 balanc-

ing, it does not matter whether the trial court admitted

the evidence under the “label” of nonpropensity evidence

through OEC 404(3) or as propensity evidence through OEC

404(4), because the probative value of the evidence is the

same where the trial court understood the evidence to show

that the defendant had a sexual purpose in both instances.

Where the probative value of the evidence remains the same

under either route to admissibility, the state argues that we

can rely on the trial court’s OEC 403 balancing to uphold

the admission of J’s testimony despite the trial court’s error

in admitting the evidence under OEC 404(3).

In some instances, after determining that a trial

court erred in admitting propensity evidence under OEC

404(3), we have considered, “[re]gardless of how the evidence

is characterized,” whether the trial court substantively

understood that the state’s theory of relevance depended on

propensity reasoning when it admitted the evidence after

balancing under OEC 403. State v. De Leon Say, 319 Or App

271, 273, 510 P3d 979 (2022); Terry, 309 Or App at 464; see

State v. Martinez, 315 Or App 48, 57-58, 499 P3d 856 (2021)

(considering whether the trial court “implicitly” understood

it was admitting propensity evidence under OEC 404(4)). As

we have recently explained, that is because both the label

88 State v. Cave

placed on the evidence—either nonpropensity under OEC

404(3) or propensity under OEC 404(4)—and the substan-

tive content of the arguments for and against admissibility

inform our understanding of the trial court’s ruling. State v.

Travis, 320 Or App 460, 469-70, 513 P3d 614 (2022).

Undertaking such an analysis, however, inherently

asks us, at times, to intuit the trial court’s reasoning in

circumstances where that reasoning is not clear from the

record. When dealing with propensity evidence, which is

generally prohibited because “it is unfairly prejudicial and

likely to be overvalued,” we must be careful not to assume

that the trial court’s analysis accounted for the dangers of

character-based evidence in the name of judicial efficiency.

See Skillicorn, 367 Or at 477-78 (describing the prohibition

against propensity evidence as “a fundamental aspect of

our legal system”); Baughman, 361 Or at 405 (explaining

that “more significant due process concerns are implicated”

when propensity evidence is admitted under OEC 404(4)).

Upon review of the record, we disagree with the

state that this is an instance where the trial court’s expla-

nation of its ruling indicates that it clearly considered the

propensity-based nature of the evidence in its OEC 403

balancing. Here, the trial court explicitly and repeatedly

stated that it was admitting J’s testimony for “nonpropen-

sity purposes” and that the “testimony was never received

for any propensity purpose.” Although both parties pre-

sented arguments regarding the testimony’s admissibility

as propensity evidence under OEC 404(4), the trial court

expressly declined to “reach that issue because [the testi-

mony] wasn’t admitted for a propensity purpose.”5 Thus, this

5

When the trial court declined to consider whether J’s testimony was admis-

sible as propensity evidence under OEC 404(4), we understand that the court

was likely following the language in Baughman that directs the trial court that

it “need not determine whether the evidence is also admissible under OEC 404(4)

and OEC 403” if the trial court first determines that the evidence is admissible

as nonpropensity evidence under OEC 404(3). 361 Or at 404.

Although that language does not require a trial court to undertake an OEC

404(4) finding when engaging in a Baughman analysis, we do not read Baughman

as prohibiting a trial court from making both OEC 404(3) and OEC 404(4) find-

ings. And, in light of Skillicorn and the subsequent development of case law

regarding other acts evidence, trial courts may be called upon to more frequently

make both OEC 404(3) and OEC 404(4) findings.

Cite as 321 Or App 81 (2022) 89

case is unlike Terry, where we concluded that the trial court

had expressly admitted the challenged evidence as propen-

sity evidence under the “label” of OEC 404(4) or where the

trial court based its admission on an understanding that

it was admitting character-based evidence. 309 Or App at

462, 464.

To be sure, the trial court stated that it was admit-

ting J’s testimony for the purpose of demonstrating defen-

dant’s “sexual purpose” and explained that evidence of

defendant’s prior sexual contact with his daughter “would

make it more likely that he’d acted with a sexual purpose

rather than an innocent one with respect to the alleged vic-

tims in this case.” But the use of the phrase “sexual purpose”

is not enough to demonstrate that the trial court correctly

considered J’s testimony as propensity evidence.

As evidenced by the parties’ arguments below, and

the trial court’s ruling in this case, “sexual purpose” is a

phrase that can refer to evidence that is inadmissible under

OEC 404(3) or evidence that is admissible under OEC 404(4).

In other words, the phrase “sexual purpose” does not auto-

matically equate to a finding of propensity evidence under

OEC 404(4). Viewing the trial court’s ruling in its entirety,

the trial court did not consider J’s testimony to be propen-

sity evidence equivalent to that admitted under OEC 404(4).

Cf. Terry, 309 Or App at 464 (trial court admitted evidence

on basis of state’s argument that the evidence “goes to his

propensity”). As a result, we cannot conclude that the trial

court grappled with the specific prejudices associated with

propensity evidence when weighed against its probative

value under OEC 403. The trial court’s OEC 403 balancing

was thus affected by its initial error in admitting J’s testi-

mony under OEC 404(3).

That is not to say that the trial court could not ulti-

mately find the evidence in this case admissible under OEC

404(4) after weighing it as propensity evidence in the OEC

403 analysis. But that is a determination for the trial court

to make in the first instance. See State v. Sewell, 257 Or

App 462, 468-69, 307 P3d 464, rev den, 354 Or 389 (2013)

(contemplating that weighing evidence under OEC 403 is a

matter of discretion for the trial courts).

90 State v. Cave

Where either admitting or excluding the challenged

evidence under OEC 403 falls within the range of permissi-

ble outcomes, we cannot say that the trial court’s error was

harmless. State v. Holt, 292 Or App 826, 834, 426 P3d 198

(2018) (concluding that the trial court’s failure to balance

evidence under OEC 403 was not harmless where either

admitting or excluding the evidence was within the range of

permissible outcomes). Further, in a case where the credibil-

ity of the witnesses was central to determining whether the

charged conduct occurred, we cannot conclude that there

was little likelihood that the trial court’s error in admitting

J’s testimony affected the verdict. See State v. Davis, 336 Or

19, 32, 77 P3d 1111 (2003) (determining whether an error

is harmless depends on whether the erroneous admission

of the evidence had little likelihood of affecting the jury’s

verdict).

We therefore reverse and remand for the trial court

to determine, as outlined in Baughman, whether, after con-

ducting a correct analysis under OEC 404(4) and OEC 403,

J’s testimony should again be received and whether a new

trial is required or appropriate. 361 Or at 410.

Reversed and remanded.