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National Crime Victim Law Institute

State v. Tena, 412 P.3d 175 (Or. 2018)

April 19, 2018

Defendant was convicted of felony fourth-degree assault constituting domestic violence.  Defendant appealed his conviction, arguing that the trial court impermissibly admitted character evidence at trial by allowing the state to introduce evidence that he had previously assaulted two other intimate partners.  The state argued that the prior incidents were admissible to prove intent to counter the defendant’s theory of the case that the victim had fallen and accidentally injured herself.  The state asserted that the evidence was admissible under Oregon Evidence Code (OEC) 404(3), which prohibits the use of evidence to prove the character of a person in order to show that the person acted in conformity therewith, but allows the evidence if it is to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  The state argued that the prior assaults were admissible under both theories:  either to prove defendant had a hostile motive toward the victim or to establish defendant’s intent under the doctrine-of-chances theory, which propositions that multiple instances of similar conduct are unlikely to happen by accident.  Alternatively, the state argued that if the evidence was not admissible under OEC 404(3) for nonpropensity purposes, it was admissible under OEC 404(4), which provides that “evidence of other crimes, wrongs or acts by the defendant is admissible if relevant” if otherwise not prohibited by state or federal law.   The trial court agreed with the state and allowed the evidence under OEC 404(3).  The court of appeals affirmed the conviction on the basis that the evidence of the prior assaults provided proof of hostile motive.  The Oregon Supreme Court disagreed.  The court found that the state’s argument assumed that because defendant assaulted two of his prior intimate partners, those assaults were motivated by the fact that they were his intimate partners. The court rejected this assumption in that “one does not necessarily follow from the other[.]”  The court further explained that although, in theory, defendant could have been motivated by the fact that the victims were his intimate partners, the evidence indicated that the prior assaults involved other motives, such as disagreements about child-care and jealousy (defendant had various reasons for being angry at each victim).  The court also rejected the state’s doctrine-of-chances theory.  The court rejected this argument on the basis that defendant did not contend that he injured the victim by accident, but that he did not injure the victim at all, thus making the doctrine inapplicable.   The court did not review whether the evidence was admissible under OEC 404(4) because the state did not raise it at trial and it is not a determination that the court can make as a matter of law.  Instead, the trial court would address the issue on remand.  The court reversed the court of appeal and remanded the case for further proceedings consistent with this decision.