State v. Davis

414 P.3d 887, 290 Or. App. 244
Court of Appeals of Oregon·Decided February 14, 2018·No. A157318·Published·Cited by 18 cases

Opinion

GARRETT, J.

*246Defendant appeals a judgment of conviction for first-degree kidnapping, first-degree attempted sexual abuse, and fourth-degree assault. The charges arose from an incident in which defendant attacked a woman while she was jogging and pushed her into a ditch; the victim fought him off and defendant left the scene. Although defendant did not say or do anything during the attack that unequivocally suggested a sexual purpose, the state alleged that defendant had intended to subject the victim to sexual contact. In support of that theory, the state offered evidence of two handwritten notes, both describing a desire to engage in violent sexual acts, that defendant wrote and left for two other women, also strangers to him. The trial court admitted that evidence over defendant's objection for the purpose of showing the sexual motive for defendant's attack on the victim. On appeal, defendant assigns error to that ruling. Defendant also assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) on the attempted sexual abuse count, arguing that the record contained insufficient evidence to prove that he intended to sexually abuse the victim when he attacked her.

We agree with defendant that the trial court erred by admitting the notes. As explained below, the two notes were not admissible as noncharacter evidence of "motive," as that term is used in OEC 404(3). Rather, the logical relevance of the notes depends on a character-based inference, i.e. , that defendant has a propensity to commit acts of sexual violence against female strangers. On appeal, the state argues that, even so understood, the evidence was admissible propensity evidence under OEC 404(4) and State v. Williams , 357 Or. 1, 346 P.3d 455 (2015). However, the state did not offer the notes as character evidence below, and we decline to consider that argument for the first time on *890appeal. Accordingly, we reverse and remand. With respect to defendant's second assignment of error, we conclude that the trial court did not err in denying his MJOA, and defendant is not entitled to outright reversal on the attempted sexual abuse count.

We review a trial court's determination that evidence is relevant for legal error, *247State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999), "in light of the record that was before the court at the time it made its decision," State v. Jones , 285 Or.App. 680, 682, 398 P.3d 376 (2017). Because defendant appeals from a judgment of conviction, "we state the relevant background facts in the light most favorable to the state." State v. Woods , 284 Or.App. 559, 561, 393 P.3d 1188, rev. den. , 361 Or. 801, 400 P.3d 926 (2017).

On December 27, 2012, the victim, M, went for a run near her home. She wore a jacket and jogging pants, and she listened to music while she ran. As she was running down the sidewalk, defendant tackled her from behind, and she blacked out. She could feel defendant "dragging" her, and when she became fully alert, she was face down in a shallow ditch near the sidewalk. The ditch was next to an area with tall grass, brush, and trees. M was able to flip her body over, and she began to fight defendant, who stood over her and held one of her hands down. Using her other hand, M tried to hit defendant and then shoved two of her fingers into his mouth. At that point, defendant stood up and ran away. As a result of the attack, M suffered abrasions, cuts, and an injury to her shoulder.

Defendant was indicted on one count of first-degree kidnapping, ORS 163.235 ; one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405 ; and one count of fourth-degree assault, ORS 163.160. With respect to the attempted sexual-abuse count, the state alleged that defendant "did unlawfully and intentionally attempt to subject [M] to sexual contact by means of forcible compulsion."

M testified at trial that she could not identify her attacker. Defendant's theory of defense was that police had arrested the wrong person. Defendant also argued that, regardless of who attacked M, there was no evidence of any intent to subject M to sexual contact.

The state presented no direct evidence of actual or attempted sexual contact. The state's theory was that the victim had fought defendant off before he could make his sexual purpose unmistakable. As circumstantial evidence of defendant's intent during the assault, the state offered two notes that defendant had left on cars in two different Target *248parking lots. Both notes were left for women who defendant did not know. One of the notes was left on December 17, 2012, 10 days before the attack, and the other was left approximately two months earlier. The two notes are very similar: Both are written in the second person (using the words "you" and "your"), both graphically describe the women's bodies, and both express, in nearly identical terms, a desire to engage in anal intercourse with the women in a way that would cause them pain. It is undisputed that defendant wrote the notes; however, there is no evidence in the record that he ever approached or tried to make physical contact with either woman.

At defendant's trial, the state offered the notes to prove that defendant's motive in attacking M was to subject her to forcible sexual contact. The state made clear that it was offering the notes "solely" to prove defendant's "intent," explaining its need for the evidence as follows:

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State v. Davis, 414 P.3d 887, 290 Or. App. 244 (Or. Ct. App. 2018).

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