State v. Jackson

705

Argued and submitted November 17, 2020, order of circuit court affirmed

November 17, 2021

STATE OF OREGON,

Appellant,

v.

HOMER LEE JACKSON III,

aka Homer Jackson,

aka Homer Lee Jackson,

Respondent.

(CC 15CR46257) (SC S067622)

498 P3d 788

Defendant was charged with the murder of four victims. DNA consistent with

defendant’s was found at the scene of each crime. Before trial, the state moved

to cross-admit the crime scene evidence, arguing that the evidence from all

four crime scenes, including the DNA evidence, was relevant to each of the four

charged crimes under the doctrine of chances. The trial court denied the motion.

The state filed a direct interlocutory appeal under ORS 138.045 to challenge

the trial court’s order. Defendant challenged this court’s jurisdiction to hear the

state’s interlocutory appeal under ORS 138.045(1)(d), which provides the state

with a right to interlocutory appeal of pretrial orders “suppressing evidence.”

Held: (1) Defendant did not demonstrate that the court clearly erred when, in

prior decisions, it had interpreted the phrase “suppressing evidence” broadly to

include a pretrial order that excludes evidence on any grounds; (2) the statistical

reasoning used by the doctrine of chances is insufficient to establish the rele-

vance of the other crime scene evidence; instead, the doctrine’s statistical reason-

ing provides only an intermediate factual inference about the entire set of crime

scene evidence that must be linked to the charged crime through an additional

intermediate inference or theory of relevance; and (3) the state failed to link its

proposed use of the other crime scene evidence to the fact it wished to prove at

trial in a way that does not rely on a prohibited “bad character” inference.

The order of the circuit court is affirmed.

En Banc

On appeal from an order of the Multnomah County

Circuit Court under ORS 138.045(2) and ORAP 12.07.*

Marc D. Brown, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for respondent. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section.

______________

* Michael A. Greenlick, Judge.

706 State v. Jackson

David B. Thompson, Assistant Attorney General, Salem,

argued the cause and filed the briefs for appellant. Also on

the briefs were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

NAKAMOTO, J.

The order of the circuit court is affirmed.

Garrett, J., concurred and filed an opinion in which

Balmer, J., joined.

Cite as 368 Or 705 (2021) 707

NAKAMOTO, J.

The state charged defendant with the murder of

four victims, who were killed over the span of 10 years.

DNA consistent with defendant’s was found at the scene of

each crime. Before trial, the state moved to cross-admit the

crime scene evidence, arguing that the evidence from all

four crime scenes, including the DNA evidence, was rele-

vant to each of the four charged crimes. In support of that

argument, the state relied on the doctrine of chances, which

is, broadly speaking, the idea that repeated incidents of rare

and similar events are unlikely to be explained by coinci-

dence or random chance. The trial court denied the state’s

motion to cross-admit the crime scene evidence.

The state seeks direct interlocutory review of the

trial court’s order, contending that the trial court erred in

excluding the evidence from the other three crime scenes

from defendant’s trial for one of the murders. The state

initially argues (1) that the doctrine of chances supplies a

theory of relevance for the crime scene evidence concerning

the presence of defendant’s DNA near the bodies of three

other murdered women and (2) that the doctrine does not

depend on prohibited inferences about defendant’s bad char-

acter and resultant propensity to commit criminal acts. In

accordance with the Oregon Evidence Code, we initially

hold that the doctrine of chances, standing alone, is insuffi-

cient to make the other crime scene evidence relevant to any

charged crime. The doctrine of chances instead provides an

intermediate factual inference about the entire set of crime

scene evidence that must be linked to the state’s proof of a

fact material to the charged crime through a separate the-

ory of relevance.

In supplemental briefing, the state offers an alter-

native. The state argues that, even if the doctrine of chances

does not by itself supply the basis for the relevance of the

DNA crime scene evidence, that evidence nonetheless is rele-

vant to facts in its case by articulating a chain of inferences,

ending with “defendant was the killer in each murder.” And

in the state’s view, neither the penultimate inference nor

any intermediate inference relies on prohibited “bad charac-

ter” inferences, in violation of OEC 404. Keeping the state’s

708 State v. Jackson

articulated purpose and chain of reasoning for introducing

the DNA evidence from all four crime scenes at the forefront

and again applying requirements of the Oregon Evidence

Code, we further hold that the state, stretching the doctrine

of chances beyond its limits, fails to link its proposed use of

the other crime scene evidence to the fact it wishes to prove

at trial in a way that does not rely on a prohibited “bad char-

acter” inference. Because we reject the state’s alternative

argument as well, we affirm the trial court’s order excluding

the evidence.

I. BACKGROUND

In a single indictment, the state charged defen-

dant in 2019 with 15 counts of first-degree murder for the

deaths of four Black female victims: TH, AA, LW, and LT.

Each victim had been engaging in prostitution in northeast

Portland. One victim was a juvenile, while the other three

were young adults, aged 29 or younger. The four murders

occurred from 1983 to 1993: TH and AA were killed in 1983,

LW was killed in 1987, and LT was killed in 1993.

Defendant’s DNA, or else DNA consistent with

defendant’s, was found at each of the four crime scenes, all

located in north or northeast Portland. TH was found par-

tially submerged in a slough near Delta Park. Defendant’s

DNA was on a belt left near TH’s body. The state contends

that the belt belonged to TH and had been used as a liga-

ture by her assailant. The DNA on the belt was consistent

with defendant’s DNA and approximately 1 in 1.32 million

African Americans.

AA was found in a room inside an abandoned north-

east Portland house. In that room were two burnt matches

and two cigarette butts. One cigarette butt had defendant’s

DNA on it. The odds that the DNA would match someone

other than defendant are less than 1 in 10 billion. The

other cigarette butt had DNA on it matching AA’s DNA.

Defendant’s fingerprint was also found on a cabinet door in

the same room where AA’s body was found. The cabinet door

had been removed, and AA’s bloody sock was lying against it.

LW was found in an empty lot near a pedestrian

overpass in north Portland. Defendant’s DNA was found in

Cite as 368 Or 705 (2021) 709

fingernail scrapings taken from LW. The odds that the DNA

would match someone other than defendant are less than

1 in 10 billion. The state offered evidence that defendant’s

DNA was the “predominant” or “major profile” from those

scrapings, meaning that there was more of defendant’s DNA

under LW’s fingernails than LW’s own DNA. According to

the state’s expert, the fact that defendant’s DNA was “pre-

dominant” suggests that defendant had contact with LW

within about five hours before her death.

Finally, LT was found near the same pedestrian

overpass as LW, though six years later. In a manner unlike

the other victims, LT had been brutalized by her assailant.

That included a bite mark on her nipple. Forensic investiga-

tors swabbed the bite mark, which revealed a small amount

of DNA. From that small amount of DNA, investigators were

able to develop a profile that is consistent with defendant’s

DNA and the DNA of about 1 in 3,896 males.

The state moved to cross-admit the evidence from

all the crime scenes as part of its proof for the murder

charges involving each victim. The state argued that the

“other acts evidence”—the presence of defendant’s DNA and

the similarities among the crimes—was relevant to proving

that defendant committed each charged crime. For example,

in attempting to prove that defendant had killed TH (the

charged crime), the state sought to admit evidence of the AA,

LW, and LT murders (the other crimes). And, in attempting

to prove that defendant had killed AA (the charged crime),

the state sought to admit evidence of the TH, LW, and LT

murders (the other crimes). The state made the same argu-

ments regarding the LW and LT murders.

The state anticipated that defendant would argue

that, as to each charged crime, his DNA ended up at the crime

scene as the result of random chance—most likely, that he

frequently employed prostitutes and, as a result, might have

had contact with the victim for reasons unrelated to mur-

der. The state maintained that, as to each charged crime,

the DNA evidence at the other crime scenes was relevant to

rebutting that anticipated defense. According to the state,

the doctrine of chances—which it describes as “a theory of

logical relevance * * * that avoids OEC 404(3)’s character

710 State v. Jackson

prohibition” and that “does not depend on character infer-

ence”—established that the DNA evidence at all the crime

scenes was relevant to defendant’s anticipated argument.

Defendant opposed the motion on numerous

grounds and further argued that, because the evidence was

not cross-admissible, presenting the evidence of each crime

to the same jury would result in substantial prejudice. On

that basis, defendant moved to sever the cases for trial.

The trial court held a three-day hearing on the

state’s motion in limine to admit “other acts” evidence and

on defendant’s motion to sever the cases. The trial court

received a copy of documents that the state had disclosed

during discovery regarding the evidence from each crime

scene described above, and the court heard testimony. To

rebut the state’s contention that the murders were very

similar and showed a modus operandi, defendant presented

testimony from a clinical and forensic psychologist.1 And

the state presented testimony directed to the doctrine of

chances from a scientist with the Oregon State Police labo-

ratory’s DNA unit, who addressed the specific DNA evidence

found at the scenes, and from a professor of criminology.

Based on research and statistics, the professor testified that

the chances of a prostitute being murdered within any given

24-hour period is rare: 1 in 160,000. The professor also tes-

tified that the chances of a person’s DNA being present on a

given day at the scene where a murdered prostitute is found

is also rare, with the estimated chances varying depend-

ing on how often the person employs prostitutes. The state

argued that the infrequency of prostitute homicide estab-

lishes the implausibility of random chance explaining defen-

dant’s DNA being at the scenes of four separate prostitute

homicides.

Following the hearing, the trial court denied the

state’s motion to cross-admit the crime scene evidence on

three grounds. First, the trial court concluded that the state

had failed to establish the foundational requirements nec-

essary to support doctrine-of-chances reasoning—namely,

1

The trial court rejected the state’s theory that the evidence from all the

crime scenes was cross-admissible to prove a modus operandi that identified

defendant as the killer. That issue is not on appeal.

Cite as 368 Or 705 (2021) 711

that the events were sufficiently similar and sufficiently

infrequent. The trial court explained that the state’s evi-

dence supporting its doctrine-of-chances theory “invites

jurors to convict based on speculation and conjecture.”

Second, the trial court concluded that, even if the

state could provide the necessary evidentiary support for

the doctrine of chances, the state was misusing the doctrine.

The trial court explained that, based on this court’s case

law, the doctrine of chances may be used only to prove that

certain conduct was performed intentionally, rather than

inadvertently, citing State v. Tena, 362 Or 514, 412 P3d 175

(2018). The trial court held that the state was improperly

attempting to use the doctrine to establish defendant’s iden-

tity as the murderer, rather than to prove that an act was

committed intentionally.

Third, the trial court determined that, because the

doctrine of chances was unavailable as a matter of law, the

other crime scene evidence could be relevant to the charged

crime based only on the tendency of the other crime scene

evidence to establish defendant’s character and propensity

to commit the charged act, a theory of relevance that is

barred by OEC 404(3). The trial court concluded that the

other crime scene “evidence only has persuasive force if it

means that the defendant committed the charged acts. If

it is not admissible to prove identity, then it is inadmissible

character evidence.”

The trial court granted defendant’s motion to sever

the cases for trial. That ruling is not at issue on appeal.2

Instead, the state seeks direct interlocutory review in this

court under ORS 138.045 to challenge the trial court’s

decision not to cross-admit the evidence from all the crime

scenes in each murder trial.

The state contends that the trial court erred when

it denied the state’s motion to cross-admit the evidence,

arguing that the evidence from each crime scene is relevant

for nonpropensity purposes under the doctrine of chances.

In addition to opposing that argument, defendant also

2

In its opening brief, the state also assigned error to the trial court’s deci-

sion to sever the cases for trial but withdrew that assignment of error in its reply.

712 State v. Jackson

contends that this court lacks jurisdiction to resolve that

question because the trial court’s order is not appealable

under ORS 138.045. We begin with defendant’s jurisdic-

tional argument.

II. JURISDICTION

Defendant challenges this court’s jurisdiction to

hear the state’s interlocutory appeal. The right to appeal

is statutory. See State v. K. P., 324 Or 1, 4, 921 P2d 380

(1996) (“[T]he right of appeal must be conferred by a statute.

Without such a statute, there is no jurisdiction to consider an

attempted appeal.” (Internal citation omitted.)). As statutory

support for its appeal, the state relies on ORS 138.045(1)(d)

(providing for interlocutory appeal to the Court of Appeals of

a pretrial order “suppressing evidence”) and ORS 138.045(2)

(providing for interlocutory appeal of an order in paragraph

(1)(d) to the Supreme Court when the defendant is charged

with murder). Together, those provisions allow the state

to seek direct interlocutory appeal to this court in murder

cases when the trial court has issued a pretrial order “sup-

pressing evidence.” The question is whether the trial court’s

order is one that suppresses evidence.

For decades, this court has broadly interpreted the

phrase “suppressing evidence,” as it is used in the interlocu-

tory appeal statute, to include a pretrial order that excludes

evidence on any grounds. See State v. Hess, 342 Or 647, 654,

159 P3d 309 (2007) (“The trial court has excluded evidence

that the state desires to introduce at trial. That is all that

ORS 138.060(1)(c)[, the predecessor to ORS 138.045(1)(d),]

requires.”); see also State v. Koennecke, 274 Or 169, 172-73,

545 P2d 127 (1976) (holding that the state could seek inter-

locutory review of a trial court order excluding evidence on

nonconstitutional grounds). The state argues that the trial

court’s order constitutes “suppressing evidence,” under that

broad definition of the phrase, because the order excludes

the evidence from each crime scene for the purpose of prov-

ing defendant’s guilt as to each of the other crimes.

Defendant does not disagree with the conclusion

that the trial court’s order in this case falls within that broad

definition. Instead, defendant argues that this court’s prior

decisions have erred in interpreting the phrase “suppressing

Cite as 368 Or 705 (2021) 713

evidence” so broadly. Under defendant’s argument, “sup-

pressing evidence” is a legal term of art that has a narrower

definition than “excluding evidence.” Defendant contends

that whether an order suppresses evidence, rather than

merely excludes evidence, depends on the grounds that

the trial court relies on in concluding that the evidence

should not be presented the jury. According to defendant,

an order “suppressing evidence” refers only to a trial court’s

ruling that evidence may not be presented to the jury on

the ground that the collection of the evidence violated the

defendant’s constitutional rights. The trial court’s order in

this case would fall outside that definition because the trial

court excluded the other crime scene evidence based on the

Oregon Evidence Code, and not based on any constitutional

violations. Defendant, therefore, asks us to overrule our

prior decisions, narrowly interpret the phrase “suppressing

evidence” as it is used in the interlocutory appeal statute,

and conclude that statute does not provide the state with a

right to interlocutory review of the trial court’s order in this

case.

The question whether to overrule one of our prior

decisions is a question of stare decisis. “[S]tare decisis is a

prudential doctrine that is defined by the competing needs

for stability and flexibility in Oregon law.” Farmers Ins. Co.

v. Mowry, 350 Or 686, 697-98, 261 P3d 1 (2011). It “requires

that we begin with the assumption that issues considered

in our prior cases are correctly decided.” Brownstone Homes

Condo. Assn. v. Brownstone Forest Hts., 358 Or 223, 236,

363 P3d 467 (2015) (internal quotation marks and citation

omitted). And it “means that the party seeking to change a

precedent must assume responsibility for affirmatively per-

suading us that we should abandon that precedent.” State v.

Ciancanelli, 339 Or 282, 290, 121 P3d 613 (2005).

We are not persuaded to abandon the broad inter-

pretation that this court previously adopted. Defendant’s

argument depends on establishing that “suppressing evi-

dence” is a narrow legal term of art. Although defendant’s

understanding of that term is consistent with its current

usage, defendant has not demonstrated that the term had

an established legal meaning in 1969, when the legislature

adopted the relevant statutory provision.

714 State v. Jackson

For example, to support his narrow legal defini-

tion of the term “suppressing evidence,” defendant cites the

1979 edition of Black’s Law Dictionary as providing defini-

tions that are consistent with his narrow interpretation.

“Suppression of evidence” is defined as “[t]he ruling of the

trial judge to the effect that evidence sought to be admit-

ted should be excluded because it was illegally acquired.”

Black’s Law Dictionary 1291 (5th ed 1979). And “motion to

suppress” is also defined as being based on illegal, typically

unconstitutional, state action:

“Device used to eliminate from the trial of a criminal case

evidence which has been secured illegally, generally in vio-

lation of the Fourth Amendment (search and seizure), the

Fifth Amendment (privilege against self incrimination), or

the Sixth Amendment (right to assistance of counsel, right

of confrontation etc.), of U.S. Constitution.”

Id. at 914.

The problem for defendant is that, although those

definitions appear in the 1979 edition of Black’s Law

Dictionary, the legislature adopted the relevant statutory

provision 10 years earlier, in 1969. Or Laws 1969, ch 529,

§ 1. And it is not clear that “suppressing evidence” had that

clearly defined legal meaning at the time that the provision

was adopted. The 1968 edition of Black’s Law Dictionary

contains no definitions for the terms “suppression of evi-

dence” and “motion to suppress.” And the term “suppress”

is defined, but it is given a broad ordinary meaning, rather

than the narrow legal meaning that defendant ascribes to

it: “To put a stop to a thing actually existing; to prohibit,

put down, to prevent, subdue, or end by force.” Black’s Law

Dictionary 1609 (4th rev ed 1968).

Even the 1979 edition of Black’s Law Dictionary

that defendant relies on demonstrates the continuing devel-

opment of the term “suppression.” Although that edition

defines “suppression of evidence” and “motion to suppress”

as excluding evidence that was illegally acquired, the defini-

tion of “suppress” suggests that the term could also be used

to describe evidence excluded on other grounds—specifically,

relevance: “To ‘suppress evidence’ is to keep it from being

used in a trial by showing that it was either gathered

Cite as 368 Or 705 (2021) 715

illegally or that it is irrelevant.” Black’s Law Dictionary at

1291 (5th ed 1979).

No legislative history further informs our analysis.

Recordings from the legislative committee hearings are

unavailable. And the minutes from those hearings and the

documents considered by the committee members do not

illuminate what the legislature intended in referring to

“suppressing evidence.”

As a result, although defendant’s interpretation is

plausible, defendant has not persuaded us that this court

clearly erred when it previously concluded that the phrase

“suppressing evidence,” as it is used in ORS 138.045(1)(d),

includes orders that exclude evidence on any grounds.

Because the trial court’s order at issue is a pretrial order

that excludes evidence, this court has jurisdiction to con-

sider the state’s direct interlocutory appeal of that order.

III. DOCTRINE OF CHANCES

The parties dispute whether the trial court erred

in denying the state’s motion to cross-admit the crime scene

evidence under the doctrine of chances. The parties’ argu-

ments are framed by our prior decisions on the doctrine of

chances. Because those decisions have not always provided

clear guidance on the proper scope of the doctrine or how

it works, and because the proper focus for analysis of the

admissibility of evidence begins with the Oregon Evidence

Code, it is useful to review the relevant rules of evidence

that frame our analysis before considering our case law and

the parties’ arguments.

A. Evidentiary Framework

To be admissible, evidence must be relevant. See

OEC 402 (“Evidence which is not relevant is not admissi-

ble.”). “Relevant evidence” is defined as “evidence having

any tendency to make the existence of any fact that is of

consequence to the determination of the action more proba-

ble or less probable than it would be without the evidence.”

OEC 401.

Although all admissible evidence must be rele-

vant, not all relevant evidence is admissible. The grounds

716 State v. Jackson

for excluding relevant evidence include a bar on admitting

“[e]vidence of other crimes, wrongs or acts * * * to prove the

character of a person in order to show that the person acted

in conformity therewith.” OEC 404(3).3 In evidence law,

“character” “ ‘means a person’s disposition or propensity to

engage or not to engage in certain types of behavior.’ ” State

v. Skillicorn, 367 Or 464, 475-76, 479 P3d 254 (2021) (quot-

ing Laird C. Kirkpatrick, Oregon Evidence § 404.03, 213 (7th

ed 2020)). Thus, uncharged misconduct may not be used “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.”

367 Or at 476; see also id. (“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.’ ” (Quoting Edward J. Imwinkelried, 1 Uncharged

Misconduct Evidence § 2:19, 2-139 (2013).)). But as OEC

404(3) further provides, that limitation does not preclude

the admission of “other acts” or uncharged misconduct evi-

dence for noncharacter purposes, “such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.” 4

The proponent of the evidence “has the burden of

showing that the proffered evidence is relevant and proba-

tive of some noncharacter purpose.” State v. Pitt, 352 Or 566,

576, 293 P3d 1002 (2012). Whether evidence has a nonchar-

acter purpose is not determined solely by assessing whether

the ultimate fact that the proponent seeks to prove is a fact

3

The parties and the trial court have addressed only OEC 404(3) and not

OEC 404(4), which contains a rule about “other acts” evidence specifically for

criminal actions, because OEC 404(4) does not apply in this case. The latest mur-

der occurred in 1993, before subsection (4) was added to the rule. See Or Laws

1997, ch 313, § 29; State v. Shaw, 338 Or 586, 613, 113 P3d 898 (2005) (holding

that to apply OEC 404(4) to a crime that predates the rule’s enactment would

result in an ex post facto violation).

4

The concurrence contends that we are perpetuating a misconception that

OEC 404(3) prohibits “propensity” reasoning rather than “character” reasoning.

368 Or at 733-34 (Garrett, J., concurring). We emphasize that this case concerns

prohibited character-based reasoning. As we later discuss, the state’s second

argument for admissibility of the evidence from the other crime scenes relies on

character-based reasoning prohibited by OEC 404(3), a conclusion with which the

concurrence agrees. Id. at 737-38 (Garrett, J., concurring).

Cite as 368 Or 705 (2021) 717

about a person’s character or propensity to commit crimes.

Instead, this court has repeatedly explained that evidence

may also be inadmissible, regardless of the ultimate fact to

be proved, whenever “ ‘the chain of logical relevance’ con-

necting the evidence to the fact it is proffered to prove relies

on ‘an inference relating to [a person’s] character or propen-

sities.’ ” Skillicorn, 367 Or at 476 (quoting State v. Johnson,

340 Or 319, 338, 131 P3d 173 (2006)); see also id. at 483

(“A proponent should identify the logical path that it will be

asking the factfinder to follow.”).

As a result, the admissibility determination requires

courts to focus on the proponent’s theory of relevance that

connects the evidence to the fact of consequence. See id. at

475 (“The proponent’s theory of relevance is critical.”). If the

proponent’s “theory of relevance requires the factfinder to

employ propensity reasoning”—to rely on an inference about

the defendant’s bad character and resultant propensity to

commit criminal acts—at any link in the chain of logical

relevance, then the evidence is subject to the limits on char-

acter evidence in OEC 404(3). Id. at 476.

As noted above, the state seeks to admit the crime

scene evidence from the three other murders as relevant

to proving that defendant killed the victim of the charged

crime. Thus, the state has the burden of identifying a chain

of logical relevance connecting the crime scene evidence from

the other charged crimes, for example, the AA, LW, and LT

murders, to the charges at issue at trial for one victim, the

TH murder in this example, without relying on inferences

about defendant’s bad character and resultant propensity to

commit criminal acts.

The state acknowledges the bar on character evi-

dence in OEC 404(3). The state, therefore, disclaims that

it is arguing that defendant’s DNA being at three other

crime scenes establishes that defendant likely killed some

other victims, likely had a propensity to kill prostitutes, and

likely acted on that propensity in killing the victim in the

charged act. Instead, the state argues that the doctrine of

chances provides the necessary logical relevance connecting

the “other scenes” evidence to the charged crime, without

718 State v. Jackson

depending on an inference about defendant’s bad character

and propensity to commit murder.

B. Overview of the Doctrine of Chances

The doctrine of chances is “based on the objective

improbability of the recurrence of uncommon events.”

Skillicorn, 367 Or at 484. Under the doctrine, “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.” Id.

The doctrine’s basic idea is that, when viewed in

isolation, a particular event might plausibly be explained

by accident or random chance. But when that event has hap-

pened repeatedly and the defendant says that each event

was the result of accident or random chance, then accident

or random chance become less plausible explanations for

the series of events: “ ‘The fortuitous coincidence becomes

too abnormal, bizarre, implausible, unusual, or objectively

improbable to be believed.’ ” Id. at 486 (quoting Imwinkelried,

1 Uncharged Misconduct Evidence at § 5:6, 5-29-30 (empha-

sis omitted)).

The series of events in this case is defendant’s DNA

being at each crime scene. The state anticipates that defen-

dant will argue that, in each case, his DNA was at the crime

scene for reasons unrelated to the crime. For example, if

defendant frequently employed prostitutes, he might have

had contact with the victim before the crimes took place or

might have had contact with someone else who carried and

transferred defendant’s DNA to the scene. We discuss those

kinds of explanations for his DNA being at each crime scene

as constituting random chance. By that we mean that defen-

dant’s DNA was at the crime scene for a reason other than

because he killed the victim.

The state does not dispute that an innocent person’s

DNA can end up at a crime scene for a variety of reasons

unrelated to the crime. In fact, at each crime scene in this

case, the state found DNA from individuals whom the state

contends were not involved with the crimes. The state asserts

that the DNA of those individuals ended up at the crime scene

Cite as 368 Or 705 (2021) 719

by chance. According to the state, defendant is unlike those

individuals because his DNA was at all four crime scenes.

In briefing to the trial court, the state argued that, although

it might be plausible that defendant’s DNA could end up at

one crime scene by chance, “it defies all common sense to

believe that he was similarly unlucky three other times.”

(Emphasis in original.) See also Edward J. Imwinkelried,

An Evidentiary Paradox: Defending the Character Evidence

Prohibition by Upholding a Non-Character Theory of Logical

Relevance, the Doctrine of Chances, 40 U Rich L Rev 419, 423

(2006) (“Innocent persons sometimes accidentally become

enmeshed in suspicious circumstances, but it is objectively

unlikely that will happen over and over again by random

chance.”).

The question, then, is the extent to which the doc-

trine of chances, as the state proposes to use it in this case,

renders the evidence from all the crime scenes relevant and

admissible to prove that defendant is the person who mur-

dered the victim in the charged crime at trial, without rely-

ing on character-based reasoning prohibited by OEC 404(3).

Unfortunately, our case law has done more to impede, rather

than facilitate, attempts to answer that question.

As we next discuss, our case law before our recent

decision in Skillicorn explains the state’s initial argument

in this case. The state contends in its opening brief that the

doctrine itself is sufficient to make evidence from the other

crime scenes relevant and admissible to prove the identity of

the killer in the charged crime:

“As noted, other-acts evidence is admissible under OEC

404(3) if it is relevant for a noncharacter purpose. The doc-

trine of chances—a theory of logical relevance—avoids OEC

404(3)’s character prohibition because it does not depend

on a character inference. Under the doctrine, evidence of

multiple similar events gives rise to the permissible inter-

mediate inference that, based on objective improbability,

the events cannot be explained as coincidence. Thus, if

evidence is logically relevant under a doctrine-of-chances

theory—i.e., it gives rise to the requisite intermediate

inference of objective improbability of coincidence and it

has any tendency to establish the existence or absence of

720 State v. Jackson

a material fact—the evidence is admissible under OEC

404(3) to prove any material issue in the case.”

(Emphasis in original; internal citation and quotation

marks omitted.) In other words, the state’s initial argument

is that the doctrine of chances supplies a theory of relevance

for evidence from the other murder scenes that is not based

on the bad character of defendant and that using the doc-

trine makes the evidence admissible under OEC 404(3) to

prove any material issue, and not only intentionality. We

refer to that argument in shorthand as a noncharacter the-

ory of relevance.

C. Case Law Concerning the Doctrine of Chances

Our case law does not resolve the extent to which

the doctrine of chances represents a noncharacter theory of

relevance for evidence of other acts extrinsic to the charged

act. Although this court has decided cases that purport to

define and apply the doctrine of chances, most of those cases

misconceive the nature of the doctrine. Our most recent

decision on the topic, Skillicorn, represents a course correc-

tion. But Skillicorn did not resolve the extent to which the

doctrine of chances represents a noncharacter theory of rel-

evance; the facts in that case did not implicate the doctrine

of chances in the first place. We review the case law before

Skillicorn here because, even in supplemental briefing sub-

mitted after Skillicorn, the parties’ arguments rely on those

prior decisions.

This court’s first decision on the doctrine of chances

is State v. Johns, 301 Or 535, 725 P2d 312 (1986). The defen-

dant in Johns shot his wife and claimed that it happened acci-

dentally. The state attempted to rebut that claim by offering

evidence that the defendant had assaulted his previous wife

with a gun years earlier. The defendant had been convicted

of the earlier assault and did not dispute it. Id. at 537-42.

This court affirmed the state’s use of the prior assault under

what it purported to be the doctrine of chances, reason-

ing that the more frequently a person undertakes similar

conduct—such as injuring a spouse—the more likely that

that conduct was undertaken intentionally.

On the same day that it decided Johns, the court

decided another case based on the doctrine of chances,

Cite as 368 Or 705 (2021) 721

State v. Allen, 301 Or 569, 725 P2d 331 (1986). In Allen, the

defendant was charged with hiring an acquaintance to com-

mit arson, and the trial court allowed the state to present

evidence that the defendant committed an earlier arson.

Although the defendant had admitted to his participation in

the earlier arson, he denied any involvement in the charged

arson. This court affirmed the admission of the prior arson

as an application of the doctrine of chances. Id. at 573-74

(discussing the doctrine of chances); id. at 577 (affirming

admission of prior arson).

The court next addressed the doctrine of chances

in State v. Leistiko, 352 Or 172, 282 P3d 857, adh’d to as

modified on recons, 352 Or 622, 292 P3d 522 (2012). The

defendant was charged with the rape of three separate vic-

tims. He claimed that all the sexual contact was consensual.

The state did not seek to cross-admit the evidence of each

charged crime; it instead offered testimony from a fourth

victim who alleged similar, uncharged conduct against the

defendant. The state argued that the fourth victim’s testi-

mony was admissible under Johns to prove that the defen-

dant “intended to forcibly compel the victims to have sexual

intercourse with him.” Id. at 182 (internal quotation marks

omitted).

This court rejected that argument, explaining that,

as applied in Johns, the doctrine of chances may be used

only to rebut assertions that certain conduct—either undis-

puted conduct or conduct already found by the jury—was

performed intentionally, rather than accidentally. Id. at 185.

According to the court, allowing the doctrine of chances to

be used beyond that would pose “an unacceptable risk that

the uncharged misconduct evidence is being admitted to

prove the act, not the defendant’s mental state.” Id. at 186.

Later decisions by this court followed Leistiko by

limiting the doctrine of chances to proving that an act was

committed intentionally, rather than inadvertently. In State

v. Baughman, 361 Or 386, 393 P3d 1132 (2017), the defen-

dant was charged with the sexual abuse of a minor, called B.

The trial court allowed the state to offer testimony from a

woman called A, who alleged that the defendant had sim-

ilarly abused her when she was a minor. This court held

722 State v. Jackson

that A’s testimony could not be used to prove the defendant’s

intent to abuse B under the doctrine of chances because

the “defendant did not raise mistake or inadvertence as a

defense.” Id. at 407.

Finally, in Tena, which the trial court relied on

below, the defendant was charged with assaulting his girl-

friend. The defendant argued that his girlfriend tripped

after they had had an argument. To rebut the defendant’s

assertion that mere coincidence explained the proximity

between the argument and his girlfriend’s injury, the state

sought to introduce evidence that the defendant had twice

previously abused girlfriends. The state argued that its use

of the prior incidents was justified under the doctrine of

chances. This court rejected the state’s argument by rely-

ing on the limit established in Leistiko: “It is important

to emphasize that the doctrine of chances applies only to

explain whether or not an act that a defendant performed

was performed intentionally. It does not apply when there is

a dispute about whether the defendant performed the act at

all.” Tena, 362 Or at 524.

That was the state of our case law when this court

recently decided Skillicorn, which represents a fundamental

reconsideration of the doctrine of chances. The defendant

in Skillicorn left his girlfriend’s house in his truck after a

dispute. As the defendant was leaving, he hit the back of

his girlfriend’s car and then hit another car belonging to a

neighbor down the street. The defendant maintained that

both crashes were accidental. The state sought to admit

evidence of previous incidents in which the defendant had

intentionally driven aggressively in the neighborhood. The

state maintained that the evidence was admissible under

Johns and the doctrine of chances to rebut the defendant’s

claim of an accident. The trial court admitted the evidence.

Skillicorn, 367 Or at 467-72.

In rejecting the state’s argument and reversing the

trial court’s admission of the evidence, the court held that

Johns misconceives the doctrine of chances. The court noted

that the doctrine of chances relies on the objective improb-

ability of the recurrence of uncommon events, such as acci-

dents. Id. at 484. Thus, “where the doctrine is used to prove

Cite as 368 Or 705 (2021) 723

‘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.” Id. at 489. Including intentional acts as part

of the series does “not enable the factfinder to make any

determination regarding whether the defendant has suf-

fered more accidents than could reasonably be expected.” Id.

As a result, it is a mistake to consider a defendant’s prior

intentional conduct when assessing whether a charged act

was accidental under the doctrine of chances.

The court then pointed out that the analysis in

Johns suffers from that mistake. As described above, the

defendant in Johns was charged with shooting his second

wife, which he claimed was accidental. Contrary to the

court’s conclusion in Johns, evidence that the defendant

intentionally assaulted his first wife could not be used under

the doctrine of chances to establish that the defendant had

experienced an objectively improbable number of accidental

injuries to his spouses. There was only one claimed accident,

not a recurring series of accidents.

As a result, the court’s reasoning in Johns to admit

the prior assault cannot properly be called doctrine-of-

chances reasoning. See id. at 491 (“[T]his court in Johns

described the doctrine of chances but did not properly apply

it.”). Instead, the state in offering the evidence, and this court

in affirming its admission, engaged in prohibited character-

based reasoning: The defendant intentionally assaulted his

first wife, and so it is likely that he intentionally shot his

second wife. See id. (“The state had used propensity rea-

soning, and this court followed suit.”). This court, therefore,

“overrule[d] Johns to the extent that it holds that evidence

of uncharged misconduct can be admitted under the doc-

trine 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.”

Id. at 493.

The mistake that Skillicorn identified in Johns is

a mistake that runs through our other cases, which relied

on and applied Johns. None of those cases implicates the

724 State v. Jackson

doctrine of chances, properly conceived, because none of

those cases asks a factfinder to assess the objective improb-

ability of a series of chance events. As a result, those cases

do not inform the scope of the doctrine of chances, properly

conceived. See Ciancanelli, 339 Or at 290 (“Many decisions

of this court serve as precedent in later decisions. Thus, dis-

avowing one case may undermine the precedential signifi-

cance of several others.”).

D. Whether the Doctrine of Chances Is a Noncharacter

Theory of Relevance that Makes “Other Acts” Evidence

Admissible

The state argues correctly that its proposed appli-

cation of the doctrine of chances in this case does not suffer

from the same mistake that the court made in Johns. The

state notes that, in offering the other crime scene evidence,

it intends the jury to assess the improbability that defen-

dant’s DNA could be at four similar crime scenes by random

chance. Thus, this case properly implicates the doctrine of

chances. And, as previously noted, the state initially takes

the position that, because it properly invokes the doctrine of

chances with respect to the evidence from the other crime

scenes, then the evidence is admissible to prove any mate-

rial fact at issue at trial, and not only intentionality, with-

out using character-based reasoning prohibited by OEC

404(3), including defendant’s identity as the murderer in

any charged crime.

In briefing its position, the state relies extensively

on this court’s description of the doctrine of chances in

Skillicorn. Skillicorn does not, however, resolve whether the

application of the doctrine of chances to evidence of other

acts supplies a noncharacter theory of relevance that ren-

ders the evidence admissible to establish any material fact

at trial. Although the court in Skillicorn raised that ques-

tion, the court did not attempt to resolve it, because the par-

ties in that case assumed that the doctrine of chances was a

noncharacter theory of relevance.5

5

We explained in Skillicorn that the 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. But we do not understand defendant to

Cite as 368 Or 705 (2021) 725

This case, therefore, allows us to address for the

first time the extent to which the doctrine of chances, prop-

erly conceived, is a noncharacter theory of relevance that is

sufficient to make the other-acts evidence relevant to prove

any material fact at issue at trial. Considering whether the

doctrine of chances is a noncharacter theory of relevance

entails two distinct questions: (1) whether the doctrine

of chances relies on prohibited character reasoning and

(2) whether applying the doctrine of chances to the evi-

dence is sufficient, without relying on additional inferences,

to make a fact material to the charged crime more or less

probable.

As to the first question, the state argues at length

that the doctrine of chances does not rely on prohibited

character-based reasoning. The state explains that estab-

lishing the improbability that defendant’s DNA could be at

four similar crime scenes by random chance does not rely

on any inferences about defendant’s bad character; rather,

that improbability is established statistically and probabi-

listically merely by assessing the number of times a person’s

DNA can be expected to be at the scene of a prostitute homi-

cide by random chance and comparing that to the number of

times defendant’s DNA has been at the scenes of a prostitute

homicide.

To meet that argument, defendant maintains,

among other things, that the state has failed to satisfy

the foundational requirements necessary to make that

comparison—namely, the similarity and unusual frequency

of the events in question. See Skillicorn, 367 Or at 487-88

(examining those foundational requirements); id. at 488

(noting that the proponent has the burden to satisfy those

foundational requirements). However, we assume, without

deciding, that the state has satisfied those foundational

requirements, because we conclude that the state’s argu-

ment fails on other grounds.

categorically challenge the doctrine of chances as a basis for the admission of

uncharged misconduct evidence[.]”

367 Or at 474-75 (internal citation omitted). We reiterated later in the opinion

that “the parties in this case assume that the doctrine can be used as a non-

propensity theory of relevance to justify the admission of uncharged misconduct

evidence.” Id. at 484 n 5.

726 State v. Jackson

Thus, we take as a given that the state has estab-

lished the statistical improbability that defendant’s DNA

could be at four crime scenes of murdered prostitutes by

random chance. And, to the extent the doctrine of chances is

limited to such statistical reasoning, the state is correct that

it entails no character-based reasoning about defendant.

But, as we will explain, limiting the doctrine of chances to

such statistical reasoning also limits its relevance.

To assess the sufficiency of the doctrine of chances in

establishing the relevance of the other crime scene evidence,

we ask whether the doctrine of chances directly makes a

fact about the charged crime more probable without rely-

ing on additional inferences that go beyond the doctrine’s

statistical reasoning. If additional inferences are needed to

make the evidence relevant to the charged crime, then those

inferences must be identified and evaluated to ensure that

they do not rely on prohibited character reasoning.

The state erroneously assumes that the doctrine

of chances may serve as a basis, in itself, for the relevance

of the evidence from the other crime scenes. We conclude

that the doctrine of chances, properly conceived, does not by

itself constitute a theory of relevance; therefore, the mere

application of the doctrine of chances is insufficient to make

evidence relevant under OEC 401 and admissible in accor-

dance with OEC 404(3).

We return to first principles under the Oregon

Evidence Code: Relevant evidence is evidence that has a

tendency to make the existence of a fact of consequence

more probable or less probable than it would be without the

evidence, and the admissibility of evidence requires courts

to focus on the proponent’s theory of relevance that connects

the evidence to the fact of consequence. The inquiry is not

abstract, such as whether the evidence could be relevant

to the charged crime. The inquiry is grounded in the rea-

son for which the proponent offers the evidence. For its ini-

tial argument, the state’s offered reason is the doctrine of

chances, and the state relies only on the doctrine of chances

because it does not require character-based reasoning. We

are therefore required to resolve whether the doctrine of

chances is sufficient to make the other crime scene evidence

Cite as 368 Or 705 (2021) 727

relevant to one particular murder. We conclude that it is

not.

In a nutshell, the state relies on the doctrine in

ways that go beyond the limits of the doctrine’s statistical

reasoning. The state contends that, by establishing that

random chance is unlikely to explain defendant’s DNA at

all four crime scenes considered as a group, it has decreased

the likelihood that random chance can explain defendant’s

DNA being at one particular crime scene. But establish-

ing the improbability that random chance explains all the

events in a series does not diminish the likelihood that ran-

dom chance can explain any one event in the series.

To elaborate, if we start with the proposition that

there is a reasonable likelihood that one event might rea-

sonably be explained by chance, then, under the doctrine of

chances, that proposition about one event remains true, even

as more events are added to the series. As noted above, the

state argued to the trial court that chance might reasonably

explain an innocent person’s DNA being at one crime scene.

At the same time, the doctrine of chances recognizes that it

is less likely that chance can explain two similar uncommon

events happening by random chance, as compared to just

one event. It is even less likely that three similar uncommon

events will happen by random chance, as compared to two.

And so on. Under the doctrine of chances, the likelihood of

chance explaining all the events goes down as more events

are added to the series. But, no matter how many events

are added, the doctrine of chances, by itself, does not dimin-

ish the original proposition that chance might reasonably

explain one event in the series. The doctrine of chances, by

itself and without additional inferences, never changes the

underlying odds with which we started.

In Skillicorn, we recognized that the doctrine of

chances is of “ ‘limited probative value’ ” in attempting to dis-

prove that random chance can explain any one event in the

series. 367 Or at 487 (quoting Imwinkelried, 1 Uncharged

Misconduct Evidence 4:1 at 4-34). While discussing the doc-

trine in the context of proving intentionality, the court in

Skillicorn explained: “ ‘The only direct inference from the

doctrine of chances is that one or some of the incidents were

728 State v. Jackson

not accidents.’ [The doctrine] does not prove that any par-

ticular incident was intentional, much less that they all

were.” Id. (quoting Imwinkelried, 1 Uncharged Misconduct

Evidence 4:1 at 4-34). Stated more generally, the only direct

inference from the doctrine of chances is that chance is

unlikely to explain one or some events in the series.

In this case, as to each charged crime, the state

must prove that crime beyond a reasonable doubt. See State

v. Boots, 308 Or 371, 377, 780 P2d 725 (1989) (requiring

members of the jury to agree on the grounds upon which

the state proved charges of aggravated murder, holding that

the jury “may agree on both [grounds], if both are proved

beyond a reasonable doubt”). In asking the jury to convict

defendant of one murder, for example the murder of TH, the

state must prove beyond a reasonable doubt that defendant

killed TH. By using the doctrine of chances to establish the

improbability that random chance can explain defendant’s

DNA at all four crime scenes, the state can claim only the

inference that defendant’s DNA was at one or some of those

four crime scenes for reasons other than random chance.

When the state is trying to prove that defendant killed TH,

the inference that the doctrine of chances provides adds no

new information about the likelihood that random chance

can explain defendant’s DNA at TH’s crime scene.

The fact that defendant in this case has been

charged with all four crimes in the series does not affect the

analysis. Charging a defendant with multiple crimes in a

single indictment, and even trying those separate crimes to

the same jury, does not change the state’s evidentiary bur-

den. The state is required to prove each crime on its own

merits. It is not permitted to ask the jury to convict defen-

dant of murdering TH based on the statistical likelihood

that defendant committed at least one murder out of a group

of four murders in which TH was one of the victims.

To recap, the doctrine of chances represents a per-

missible path to one factual inference: Based on the objec-

tive improbability that uncommon events will happen

repeatedly by chance, a factfinder may reasonably infer

that one or some events in a group of unlikely events were

not the result of chance. In this case, assuming that the

Cite as 368 Or 705 (2021) 729

foundational requirements have been met, a factfinder may

infer that it is improbable that random chance can explain

defendant’s DNA being present at all four locations where a

murdered prostitute was found. Although that fact may be

inferred without relying on character-based reasoning, that

fact is not relevant to the charged crime without additional

inferences connecting the use of the doctrine of chances to

the charged crime. Thus, whether the other crime scene evi-

dence is relevant to the charged crime and does not depend

on character-based reasoning depends on the remaining

links in the chain of logical relevance. In other words, the

doctrine of chances does not imbue the evidence with logical

relevancy; relevancy “ ‘is not an inherent characteristic of

any item of evidence but exists only as a relation between

an item of evidence and a matter properly provable in the

case.’ ” State v. Guzek, 322 Or 245, 251, 906 P2d 272 (1995)

(quoting Legislative Commentary to OEC 401, reprinted in

Laird C. Kirkpatrick, Oregon Evidence 104 (2d ed 1989)).

Thus, although the doctrine may function to estab-

lish one link in a larger chain of inferences that makes

other-acts evidence relevant to a particular fact of conse-

quence at trial, we reject the notion that, once the proponent

shows that the doctrine of chances properly applies to other-

acts evidence, that application of the doctrine necessarily

makes the evidence logically relevant. Instead, whether

“other acts” evidence is relevant without implicating prohib-

ited character-based reasoning will depend on the facts of

each case and the proponent’s theory of relevance.6

E. Whether the State Identified a Chain of Inferences that

Established Relevance and Admissibility of the Evidence

from All Four Murders in Accordance with OEC 404(3)

Skillicorn was decided after the initial briefing and

oral argument was complete in this case, and we asked the

6

The concurrence maintains that we mischaracterize the state’s argument

as asserting, once the doctrine of chances is implicated, it makes evidence admis-

sible for all purposes at trial. See 368 Or at 737 (Garrett, J., concurring). To be

clear, we understand the state to argue that use of the doctrine of chances should

not be limited to proving intentionality categorically, as we previously main-

tained in Leistiko. Instead, the state argues that the doctrine of chances may be

used to prove any type of noncharacter fact. In view of our holding in this case,

we need not resolve whether use of the doctrine of chances should be categorically

limited to proving certain types of facts.

730 State v. Jackson

parties to submit supplemental briefing to address its effect

on this case. In view of this court’s reexamination of the

doctrine of chances and reemphasis on the import of the pro-

ponent’s theory of relevance in Skillicorn, the state lays out

in supplemental briefing the chain of inferences that it con-

tends (1) establishes that the evidence from all four crime

scenes is relevant in each trial to prove that defendant was

the person who committed the murder of each victim and

(2) avoids character reasoning. Ultimately, we conclude that

the state’s additional effort to establish the admissibility of

the evidence fails.

The state articulates the following chain of rele-

vance for the admissibility of the DNA evidence from the

three other murder scenes in any one trial for a charged

murder: First, the jury can use the evidence to decide that

it is statistically improbable for a defendant’s DNA to be at

four crime scenes involving murdered prostitutes by random

chance, which is an application of the doctrine of chances. As

we have discussed, the statistical inference about a group of

events through use of the doctrine of chances does not com-

pel an additional inference about whether one event could

be random chance; therefore, the proponent of the evidence

must identify additional intermediate inferences connect-

ing the use of the doctrine of chances to the charged act.

Here, the state posits for its second and intermediate infer-

ence that, because of the statistical improbability of chance

explaining defendant’s DNA at all the crime scenes, defen-

dant was likely present at each of the crime scenes when the

murders were committed, including the charged murder.

Third, the state asserts, the second inference that defendant

was present for each of the murders “supports the ultimate

reasonable inference that defendant was the killer in each

murder,” including the charged murder.

The state maintains that all three inferences “are

based solely on the jury’s probability assessment” con-

cerning defendant’s DNA at the four murder scenes, not

on character-based reasoning. On its face, that chain of

inferences does not rely on obvious propensity reasoning to

explain relevance, such as asking the jury to conclude that,

because defendant killed three other women, he is the type

of person who kills women like the victim in the charged

Cite as 368 Or 705 (2021) 731

crime. Thus, the state articulates a chain of inferences that

avoids an explicit character-based theory of relevance.

We first address and reject the state’s contention

that it has established the logical relevance of the evidence

from the other crime scenes based solely on the improbabil-

ity that defendant’s DNA would be at all four crime scenes

by random chance. The state’s first inference depends on the

doctrine of chances: the improbability that random chance

can explain defendant’s DNA at all four murders. But that

fact does not directly increase the likelihood of the state’s

second factual inference: that random chance cannot explain

defendant’s DNA at any one of the four crime scenes. As we

have explained, the doctrine of chances operates at the level

of the entire group of events, and not the level of the indi-

vidual events within the group. Ruling out random chance

as the explanation for all four events in the group does not

rule out or even diminish random chance as the explana-

tion for any one of the four events. Each one of the charged

acts is only one event in the group. At most, the doctrine of

chances allows a factfinder to infer that random chance can-

not explain one or some events in the group, without identi-

fying which events can be explained by random chance and

which cannot.

The difficulty for the state, then, is the task of

explaining the move from the first inference about the

series of events to the subsequent inferences about only one

of the charged crimes within the series when the doctrine of

chances, properly understood, does not accomplish the task.

What basis besides the doctrine of chances would justify the

state’s proposed inference that defendant was present for

each murder, including the charged crime? The state makes

no attempt to answer that question other than by asserting

that the subsequent inferences are “reasonable” in view of

the first.

Having rejected the doctrine of chances as the sole

basis that connects the factual proposition derived by using

the doctrine—that defendant was likely present at the time

of one or some of the murders—to the second link in the

state’s chain of inferences—that defendant was likely pres-

ent at the time of any particular one of those murders, we

732 State v. Jackson

examine the state’s claim that it is reasonable to make that

connection. By framing the key second factual inference in

the state’s chain of inferences as being about defendant’s

likely presence at each murder, rather than framing the fac-

tual inference as being about defendant having likely com-

mitted each murder, the state attempts to avoid character-

based reasoning. However, we conclude that the state, while

disclaiming use of character-based reasoning, requires such

reasoning to connect the inferences.

Considering the use of the evidence during defen-

dant’s upcoming trial on charges relating to one of the mur-

ders makes that conclusion evident. In a trial involving LT’s

murder, for example, whether evidence of defendant’s DNA

at three other crime scenes involving TH, AA, and LW is rel-

evant to prove that defendant killed LT depends on whether

the factfinder believes that defendant killed the other vic-

tims. As the trial court put it, the other crime scene “evi-

dence only has persuasive force if it means that the defen-

dant committed the charged acts.” If a factfinder concluded

that random chance explained defendant’s DNA being at the

other three crime scenes, the presence of defendant’s DNA

at those crime scenes would not matter for the purpose for

which the state seeks to introduce the other-acts evidence,

to prove that defendant was present at the time that LT was

murdered and that he was the murderer. And because the

persuasive force of the other crime scene evidence is based

on establishing defendant’s character as a murderer, the

state’s theory of relevance is barred by OEC 404(3).

Looking at the issue from a different direction,

the state already has acknowledged, correctly, that were

it to claim that defendant killed three women before in an

attempt to prove that defendant killed again and murdered

LT, that would constitute character-based evidence that is

barred under OEC 404(3). Thus, for example, if the state

had defendant’s confession that he had killed TH, AA, and

LW, it could not use the confession to prove that defendant

murdered LT. The state in this case has attempted to intro-

duce evidence extrinsic to the charged murder to establish

a circumstantial case that defendant probably killed the

three other women, but that evidence is no more admissible

under OEC 404(3) in his trial for LT’s murder than it would

Cite as 368 Or 705 (2021) 733

be if the state had offered direct evidence by confession that

defendant actually killed the three other women.

In sum, an Oregon court that is asked to admit

other-acts evidence cannot simply look for the proponent’s

identification of a noncharacter material fact that permits

use of other acts as proof, such as the actor’s “motive, oppor-

tunity, intent, preparation, plan, knowledge, identity,” OEC

404(3), and for some probative value of that evidence that

is connected in any way to the identified purpose. Instead,

the proponent must articulate the chain of inferences that

makes the evidence relevant to that purpose and explain

how that chain of inferences does not depend on the actor’s

character, and the court must carefully examine that chain

of inferences to determine whether the proponent has met

its burden to establish that it is offering a theory of rele-

vance for the evidence that does not depend on character-

based reasoning prohibited under OEC 404(3).

In this case, the state’s reliance on the doctrine of

chances does not satisfy its burden of offering an intermedi-

ate inference that logically connects its use of the doctrine

of chances to the fact of consequence it wishes to prove—

defendant’s identity as the murderer. Instead, the state has

articulated a chain of inferences that ultimately requires

the factfinder to depend on character-based reasoning to

conclude that the crime scene evidence from three other

murders supports the conclusion that defendant committed

the murder of a fourth victim. Accordingly, we affirm the

trial court’s exclusion of that evidence.

The order of the circuit court is affirmed.

Garrett, J., concurred and filed an opinion in which

Balmer, J., joined.

GARRETT, J., concurring.

I write separately because, although I agree with

the majority’s disposition of this appeal, I view its reasoning

as problematic in some respects.

First, the majority opinion perpetuates a long-

standing misconception in this court’s case law regarding

OEC 404(3). Specifically, the majority describes that rule as

734 State v. Jackson

prohibiting “propensity” reasoning. However, OEC 404(3)

actually says the following:

“Evidence 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.”

(Emphasis added.) Notoriously, neither the Oregon Evidence

Code nor the federal evidence code (which contains a sub-

stantively identical rule, FRE 404(b)) provides a definition

of “character.” That omission has spawned a small library

of case law and commentary on the topic of what, exactly,

the rule prohibits. “Legal scholars and courts have long

struggled to define character in the law of evidence. Since

the time of John Henry Wigmore, observers have lamented

that ‘[t]he prohibition against “character evidence” is one

of the great enigmas [of] the law of evidence.’ ” Barrett J.

Anderson, Note, Recognizing Character: A New Perspective

on Character Evidence, 121 Yale LJ 1912, 1919 (2012) (quot-

ing John Henry Wigmore, 1A Evidence in Trials at Common

Law § 54.1, 1150 (Peter Tillers ed., 1983)).

This court has defined “character” as a person’s

“tendency to act in a certain way in all [the] varying situ-

ations of life,” State v. Marshall, 312 Or 367, 372, 823 P2d

961 (1991) (internal quotation marks omitted), or as a per-

son’s “disposition or propensity to commit certain crimes,

wrongs, or acts,” State v. Johns, 301 Or 535, 548, 725 P2d

312 (1986), overruled in part by State v. Skillicorn, 367 Or

464, 479 P3d 254 (2021).1 The same or similar definitions

are used by other courts, but they are of dubious value. See

Anderson, 121 Yale LJ at 1922 (noting the use of such defi-

nitions in numerous jurisdictions: “At best, these definitions

are too general, confusing, and vague. They do not distin-

guish, for example, between a character trait on one hand,

1

Skillicorn overruled Johns “to the extent that it holds that evidence of

uncharged misconduct can be admitted under the doctrine of chances for the pur-

pose of arguing that, because the defendant engaged in deliberate conduct before,

it is likely that he engaged in it again during the charged incident.” Skillicorn,

367 Or at 493. Skillicorn did not call the definition of “character evidence” in

Johns into question.

Cite as 368 Or 705 (2021) 735

and a person’s habit, mental disorder, or sexuality on the

other.”).

In addition, this court—again, like many others—

has used the word “character” interchangeably with “pro-

pensity.” The two terms have been equated to the point

that we have routinely described OEC 404(3) as prohibiting

“propensity evidence,” even though that is not what the rule

says. For example, we have observed:

“OEC 404(3) is an ‘inclusionary’ rule, as opposed to an

‘exclusionary’ rule, expressly stating that prior bad acts

evidence may be admissible as long as it is relevant for any

purpose other than to prove ‘propensity’—that is, to prove

the character of a person, to show that the person acted in

conformity with that character.”

State v. Turnidge (S059155), 359 Or 364, 429, 374 P3d 853

(2016). Curiously, that passage from Turnidge (S059155), in

describing what OEC 404(3) “expressly” states, puts quota-

tion marks around the wrong word (propensity instead of

character). More recently, in Skillicorn, we took the same

approach:

“ ‘ “Character” for purposes of evidence law means a per-

son’s disposition or propensity to engage or not to engage in

certain types of behavior.’ Thus, OEC 404(3) prohibits the

use of uncharged misconduct evidence to prove that a per-

son has a propensity to engage in certain types of behavior

and that the person acted in conformance with that pro-

pensity on a particular occasion. In short, it prohibits ‘pro-

pensity evidence.’ ”

367 Or at 475-76 (quoting Laird C. Kirkpatrick, Oregon

Evidence § 404.03, 213 (7th ed 2020)).

Although the conflation of character with propen-

sity is enmeshed in our jurisprudence, commentators have

pointed out a problem: The concepts are not the same.

Moreover, the case law clearly reflects that they are not the

same, even while it has uncritically substituted one word

for the other. See, e.g., Anderson, 121 Yale LJ at 1915-16

(“Defining character as simply someone’s propensity to act

in a certain way does not distinguish between what is com-

monly perceived as character and other propensity-based

qualities that courts have recognized are not character, such

736 State v. Jackson

as habits, mental illnesses and genetic attributes, skills and

abilities, or other traits of personality.” (Footnotes omitted.));

id. at 1915-16 nn 10-12 (collecting cases). “Character” is nor-

mally understood to refer to more generalized traits, usu-

ally with a moral quality, while “propensity” can mean par-

ticularized tendencies that may or may not have any moral

component. See, e.g., David P. Leonard, The New Wigmore:

Evidence of Other Misconduct and Similar Events § 8.3, 552-

53 (2d ed 2019) (“Character is thought to be a generalized

tendency to act in a particular way, caused by something

internal to the actor that arises from that person’s moral

bearing.”). As another commentator has explained:

“Courts and commentators often carelessly say that it

is ‘propensity reasoning’ that is banned by the standard

evidence rule. * * * That is an overstatement; if the law is

properly read, it is * * * only reasoning based on the propen-

sity known as character that is banned.

“ ‘Character’ properly describes just one kind of propen-

sity—a propensity to repeat a general category of act, such

as acts of violence, acts of dishonesty, etc. And by definition,

character means a propensity to do acts that have a good

or bad moral connotation. But there are other kinds of pro-

pensities. Inferring present action from these others is not

banned. For example, there are specific propensities, i.e. a

tendency to do a certain thing in a specific way. This is not

properly referred to as ‘character.’ ”

Paul F. Rothstein, Comment: The Doctrine of Chances, Brides

of the Bath and a Reply to Sean Sullivan, 14 Law, Probability

& Risk 51, 61 (2015) (emphasis in original).

“Modus operandi” evidence, for example, is gener-

ally understood to be admissible to prove “identity” (a pur-

pose expressly allowed by OEC 404(3)), on the theory that,

where the charged conduct bears sufficiently unique charac-

teristics, evidence that the defendant previously engaged in

conduct with those same characteristics supports an infer-

ence that the defendant is the person who committed the

charged conduct. That logic involves what can only be a form

of propensity reasoning—the idea that the accused has a

habit, inclination, or proclivity for doing a very specific thing

in a very specific way. Thus, if all “propensity” reasoning is

banned by OEC 404(3), “modus operandi” evidence cannot

Cite as 368 Or 705 (2021) 737

be legitimate. But it is legitimate, as courts have tradition-

ally understood, including this one. See, e.g., State v. Pinnell,

311 Or 98, 110 & n 18, 806 P2d 110 (1991) (describing per-

missible use of other acts evidence to show that the accused

committed a “signature crime,” such as by leaving “the

mark of Zorro”). The only way to resolve that contradiction

is to conclude that OEC 404(3) means just what it says—

it prohibits character reasoning, not propensity reasoning,

which is different, often more specific, less value-laden, and

nowhere mentioned in the rule.

In short, this court should fundamentally recon-

sider the nature of the OEC 404(3) prohibition. However,

disentangling the concepts of character and propensity is

a difficult task, and not one that the state has asked us to

undertake here. Instead, the state argues that its theory

of relevance does not require even propensity reasoning.

Considering that argument on its own terms, I believe it fails,

but for reasons more straightforward than the majority’s

analysis.

The majority characterizes this case as raising

such general questions as “the extent to which the doctrine

of chances represents a noncharacter theory of relevance for

evidence of other acts extrinsic to the charged act,” 368 Or

at 720, and whether the doctrine of chances “by itself consti-

tute[s] a theory of relevance,” id. at 726. The majority then

answers those questions at a very high level of abstraction.

Those answers are both categorical and largely ungrounded

in authority, posing a risk that the pronouncements in today’s

opinion are unintentionally overbroad and may cause confu-

sion in future cases. This court’s troubled history with the

doctrine of chances—well described by the majority and in

Skillicorn—counsels a less ambitious approach.

Much of the majority’s discussion seems intended

to reject an argument that I do not understand the state to

be making: that the doctrine of chances is somehow a free-

standing theory that, by itself, “imbue[s]” evidence with rel-

evance, 368 Or at 729, such that the evidence becomes rel-

evant and admissible to prove any material fact. Although

the state has referred to the doctrine of chances as a theory

of relevance, in context I understand the state’s position to

738 State v. Jackson

be that, when evidence is logically relevant, the doctrine

of chances is a way of explaining why the theory of rele-

vance does not rely on propensity reasoning. In this case,

the state has argued that the “other acts” evidence is logi-

cally relevant to prove defendant’s identity as the murderer

(a purpose allowed by OEC 404(3)), and that, under the doc-

trine of chances, that theory of relevance relies solely on

probabilistic rather than propensity reasoning. But the

state’s theory does not avoid propensity reasoning. That can

be explained without going further to suggest how the doc-

trine of chances might or might not work in other contexts.

The state contends that the presence of defendant’s

DNA at the other murder scenes supports an inference that

the presence of his DNA at the charged murder scene was

not a coincidence (more precisely, an inference that defen-

dant was present at the murder). However, the inference

that defendant was present at the charged murder scene

relies on additional, unstated inferences: that (1) instead of

coincidence, a better explanation is that the series of events

has a common cause, which (2) can only be that defendant

had an unusual tendency to be present for the violent deaths

of young, Black prostitutes over the time period in question,

which (3) increases the likelihood that defendant was pres-

ent for the charged crime. Whether or not that chain of rea-

soning involves any assumption about defendant’s “charac-

ter,” it does involve an assumption about his propensity for

engaging in certain behavior. Therefore, if one assumes for

purposes of this case that OEC 404(3) prohibits propensity

reasoning, the trial court’s ruling should be affirmed.

Balmer, J., joins in this concurring opinion.