FILED December 23, 2019 10:35 AM Appellate Court Records

IN THE SUPREME COURT OF THE STA TE OF OREGON

STA TE OF OREGON, Washington County Circuit Court Plaintiff-Respondent, Case Nos. Cl 52791CR, 16CR1 7639 Respondent on Review,

V. CA Al 62831 (Control), Al 62832 DAVID JOHN SKILLICORN III, SC S066822 Defendant-Appellant. Petitioner on Review.

PETITIONER'S REPLY BRIEF ON THE MERITS

Review of the decision of the Comt of Appeals On an appeal from the Judgment of the Circuit Comt for Washington County Honorable Rick Knapp, Judge

Opinion Filed: November 2, 201 6 Author of Opinion: BRONSON D. JAMES, Judge Before: De VORE, Presiding Judge, JAMES, Judge and BREWER, Senior Judge

ERNEST G. LANNET #013248 ELLEN F. ROSENBLUM #753239 Chief Defender Attorney General Criminal Appellate Section BENJAMIN GUTMAN #160599 EMILY P. SELTZER #124513 Solicitor General Deputy Public Defender LAUREN P. ROBERTSON #160599 Office of Public Defense Services Assistant Attorney General 1175 Comt Street NE 400 Justice Building Salem, OR 97301 1162 Comt Street NE [email protected] Salem, OR 97301 Phone: (503) 378-3349 lauren.robe1tson@doj .state.or.u s Attorneys for Defendant-Appellant Phone: (503)378-5655 Attorneys for Plaintiff-Respondent

66173 12/19 i

TABLE OF CONTENTS

STATEMENT OF THE CASE ...... 1

Summary of Argument ...... 2

Argument ...... 3

I. This court should hold that the doctrine of chances does not apply to deliberate prior acts...... 3

II. The trial court erred in admitting all of the regarding defendant’s prior driving over his objection...... 9

III. The trial court’s error in admitting the evidence was not harmless...... 11

CONCLUSION ...... 13

TABLE OF AUTHORITIES

Cases

People v. Smallwood, 42 Cal 3d 415, 228 Cal Rptr 913, 722 P2d 197 (1986) ...... 12

State v. Davis, 336 Or 19, 77 P3d 111 (2003) ...... 12

State v. Davis, 345 Or 551, 201 P3d 185 (2008) ...... 9

State v. Johns, 301 Or 535, 725 P2d 312 (1986) ...... 1, 6

State v. Pinnell, 311 Or 98, 806 P2d 110 (1991) ...... 12

ii

State v. Tena, 281 Or App 57, 384 P3d 521 (2016), rev’d on other grounds, 362 Or 514 (2018) ...... 5

State v. Vuley, 193 Vt 622, 70 A3d 940 (2013) ...... 4

State v. Williams, 357 Or 1, 346 P3d 455 (2015) ...... 9

State v. Wright, 283 Or App 160 n 2, 387 P3d 405 (2016) ...... 5

United States v. Queen, 132 F3d 991(4th Cir 1997) ...... 6

Statutes

OEC 403 ...... 8

OEC 404 ...... 2, 8, 9

Other Authorities

Andrew J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character Reasoning from Other Crime Evidence, 17 Rev Litig 181 (1998) .. 4

Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Prohibition by Upholding a Non-Character Theory of Logical , The Doctrine of Chances, 40 U Rich L Rev 419 (2006) ...... 5

Edward J. Imwinkelried, Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances As A Justification for Introducing Uncharged Misconduct Evidence to Prove Intent, 45 Hofstra L Rev 851 (2017) ...... 3 PETITIONER’S REPLY BRIEF ON THE MERITS

STATEMENT OF THE CASE

Defendant argues, inter alia, that deliberate prior acts are not admissible under “the doctrine of chances” to prove a defendant’s intent (or disprove mistake or accident) in a criminal prosecution. Pet BOM at 21-33. Because defendant’s prior act of reckless driving was not an accident, it was not admissible under the doctrine of chances to prove that he drove intentionally into one car and then recklessly into another. Defendant also contends that the trial court erred in admitting evidence of his confrontation with a neighbor and reckless driving habits. Pet BOM at 49-51.

The state responds that this court should not adopt defendant’s proposed rule, citing this court’s opinion in State v. Johns, 301 Or 535, 725 P2d 312

(1986), as well as other courts and commentators who have extended a

“doctrine of chances” analysis to deliberate prior acts. Resp BOM at 22-31.

The state further contends that preservation principles preclude consideration of the confrontation and driving-habits evidence and, in any event, that any error in admitting the prior-acts evidence was harmless. Resp BOM at 40-48.

Defendant replies to the state’s argument on those points and asks this court to reverse the decision of the Court of Appeals and remand for a new trial. 2

Summary of Argument

Under OEC 404(3), prior-acts evidence is admissible for a nonpropensity purpose if its relevance derives from a nonpropensity inference. The evidence must be relevant through an inference that does not depend on propensity reasoning, i.e., that because the defendant committed the crime before, he likely did so again.

The state argues that deliberate prior acts qualify for admission under the doctrine of chances, because “the more often a defendant performs an act, the less likely it is that, when the defendant performs the act again, he or she did so accidentally or innocently.” Resp BOM at 12. In the state’s view, that is a nonpropensity inference. Id. at 13, 27-29. However, when a prior act is deliberate, the fact that the defendant performs a similar act a second or third time is attributable to persistent malevolence, not to the improbability that an accident is unlikely to recur multiple times. The doctrine of chances depends on the improbability of multiple accidents. Therefore, defendant asks this court hold that the doctrine of chances does not apply to deliberate prior acts.

Further, the state contends that defendant failed to preserve his arguments that the trial court erred in admitting evidence of his confrontation with a neighbor and pattern of driving behavior. But defendant’s objection to the state’s motion in limine included objections to all evidence of his prior driving, as detailed below. Moreover, the admission of defendant’s past acts was not 3 harmless; the evidence was classic propensity evidence and highly likely to influence the jury’s verdict.

Argument

I. This court should hold that the doctrine of chances does not apply to deliberate prior acts. In the state’s view, the doctrine of chances does not permit the admission of evidence through a propensity inference, because it “does not require the jurors to consciously advert to the question of the accused’s personal, subjective character.” Resp BOM at 28-29 (quoting Edward J. Imwinkelried, Criminal

Minds: The Need to Refine the Application of the Doctrine of Objective

Chances As A Justification for Introducing Uncharged Misconduct Evidence to

Prove Intent, 45 Hofstra L Rev 851, 865 (2017)). When the prior act at issue is accidental, the jury can simply consider the objective probability of that accident occurring multiple times to the average person. But when the prior act is deliberate, the jury must consciously consider whether, given the defendant’s prior “bad intent,” it is likely or unlikely that he acted with the same bad intent again. The jury will reason that the defendant “is different from the rest of the population because she has a tendency (read: propensity) to commit this act[,]” rendering it more likely that the charged offense was not an accident. Andrew

J. Morris, Federal Rule of Evidence 404(b): The Fictitious Ban on Character 4

Reasoning from Other Crime Evidence, 17 Rev Litig 181, 200 (1998). That is propensity reasoning.

The state points to a secondary inference—that it is unlikely that an accident would befall a person who previously had committed a similar misdeed. Resp BOM at 27-29. That probabilistic inference is extremely weak.

While it is objectively improbable that the same accident occurs multiple times by random chance, it is not particularly improbable that a single accident occurs, even when preceded at some point by a similar deliberate act.

Instead, any weak probabilistic inference is entirely eclipsed by the unavoidable propensity inference the jury will draw. Cf. Morris, 17 Rev Litig at 200 n 74 (any such probabilistic inference “bears such close similarity to propensity reasoning that we could not seriously have faith that limiting instructions could prevent a jury from crossing over the thin line between eliminating the probability of accident and directly reasoning about propensity”); State v. Vuley, 193 Vt 622, 650, 70 A3d 940 (2013) (even as applied to prior non-deliberate acts, the doctrine of chances can lead the jury to propensity reasoning: a jury might conclude that “because of the number of fires, defendant must be an arsonist and, as an arsonist, he intended to start each fire”). The state’s conception of the doctrine of chances cannot be called a nonpropensity theory of relevance. 5

Indeed, the state cites authority that the doctrine of chances requires that the prior conduct be accidental or innocent, rather than deliberate: that the doctrine establishes “the objective improbability of so many accidents befalling the defendant or the defendant becoming innocently enmeshed in suspicious circumstances so frequently.” Resp BOM at 28 (quoting 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, 439 (2006)) (emphasis added).

There, Imwinkelried identifies the necessary predicate to admission of prior- acts evidence under the doctrine of chances: more than one innocent or accidental act. The doctrine of chances requires that to support its probabilistic inference.

The state rejoins that, aside from the Court of Appeals’ suggestions in

State v. Tena, 281 Or App 57, 64 n 4, 384 P3d 521 (2016), rev’d on other grounds, 362 Or 514 (2018), and State v. Wright, 283 Or App 160 n 2, 165, 387

P3d 405 (2016), courts and commentators have not held, explicitly, that the doctrine of chances does not apply to deliberate prior acts. Resp BOM at 28-

31. Defendant acknowledges as much. As Imwinkelried opines, many courts have “shirked [their] responsibility * * * to ensure that the theory does not function as a Potemkin, virtually inviting the jury to engage in forbidden character reasoning.” Imwinkelried, 45 Hofstra L Rev at 856. And when 6 purportedly applying the doctrine of chances, many courts do not limit the doctrine to its probabilistic form:

“[E]ven when the courts purport to apply the doctrine in so many words, in many instances their analysis is shallow. These courts do not pause to inquire whether the prosecution has satisfied the foundational requirements for the doctrine. In particular, they rarely demand that the prosecution demonstrate a baseline frequency or incidence for the type of event involved in the instant case to support the inference that cumulatively, the charged and uncharged incidents establish an extraordinary coincidence.”

Id. at 871 (footnotes omitted).

Frequently, courts cite the doctrine of chances without limiting it to a theory of objective improbability. See, e.g., United States v. Queen, 132 F3d

991, 996-97 (4th Cir 1997) (invoking the doctrine of chances to support admission of a prior act of tampering to prove that because the defendant intentionally tampered with a witness before, he likely did so again).

Indeed, this court’s opinion in Johns blurs the already-faint line between the non-propensity theory of relevance that constitutes the doctrine of chances and a general rule permitting the admission of prior acts to prove intent. Pet BOM at 26-33. And for that reason this court should overrule or disavow it.

Other courts and commentators who apply the doctrine to deliberate prior acts are not, in fact, applying the doctrine of chances in its proper form. There are often other principles at work, such as the fallacy that acts admitted to prove intent do not rely on a propensity inference at all. See Imwinkelried, 45 Hofstra 7

L Rev at 858 (“A narrow reading of the statutory language [of Rule 404(b)] might support the contention that the prohibition comes into play only when the prosecution offers the uncharged misconduct to show the accused’s physical conduct, not his or her mental intention.”). Defendant asks this court to clearly define the doctrine of chances to staunch the inundation of propensity evidence admitted through its persistent misapplication. Applying the doctrine of chances to deliberate prior acts does not serve the logical underpinnings of the doctrine. Rather, it legitimizes the basest notions of the immutability of character. Under the state’s rule, woe to the single-event arsonist, thoroughly reformed, who later suffers from a garden-variety kitchen fire.

The state further argues that defendant’s proposed rule of will be unworkable, because “it will often be disputable, to some extent, whether a prior act was accidental until there is evidence of a or conviction.”

Resp BOM at 25. At times, the parties may dispute the intentionality of the prior act. But if jury will perceive the act as deliberate, it is not admissible under the probabilistic reasoning of the doctrine of chances. If the act appears intentional, the jury will infer that because the defendant acted with bad intent before, he likely did so again. If the state’s point is that the doctrine’s use may wane, that complaint underscores the over-application of a doctrine once reserved for unusual cases, like the “brides of the bath.” In its place, the state may cite other nonpropensity theories of admissibility. 8

This case is illustrative. Here, the state argues that defendant’s prior act of reckless driving “could have been an accident.” Resp BOM at 24. But defendant’s act of driving quickly and recklessly during the prior incident before crashing on a grassy berm was reckless, not accidental. Nothing in the record indicates that the prior act was explained by accident, whether through defendant’s statements or due to the nature of the act. Unlike, for example, a house fire, driving quickly and recklessly is not an act that tends to be accidental without evidence to the contrary. Defendant was concededly at the wheel, and the record reflects no plausible explanation of how his driving was accidental: indeed, as the state notes, the prosecutor argued in closing that the prior act was deliberate. Resp BOM at 25 n 6. Under those circumstances, defendant’s prior act was deliberate and therefore inadmissible under the doctrine of chances; below, the state articulated no other nonpropensity theory of relevance.

Finally, the state proposes that balancing under OEC 403 is sufficient to protect against the prejudicial effect of propensity evidence admitted under the doctrine of chances. Resp BOM at 32-34. OEC 404(3) requires that the trial court assess the state’s theory of relevance and determine that it does not rely on a propensity inference before conducting OEC 403 balancing. The state must invoke a nonpropensity theory of relevance to support the admission of prior acts: either the probabilistic form of the doctrine of chances or another 9 theory such as motive or plan. OEC 404(3)’s limitation on propensity evidence recognizes that OEC 403 balancing is not sufficient to limit its improper admission. Evidence of deliberate prior acts is highly probative through a propensity inference, so courts would often admit it after considering that strong probative value, despite its concurrently high degree of prejudice. To protect against that result, OEC 404(3) requires the trial court to perform its gatekeeping function as a matter of law, not through OEC 403 balancing.

In the context of prior bad acts evidence proffered in a criminal trial, the state’s attempt to circumvent OEC 404(3) is unavailing. Propensity evidence threatens the fundamental fairness of criminal trials. State v. Williams, 357 Or

1, 18-19, 346 P3d 455 (2015). And the highly prejudicial propensity effect of such evidence cannot be entirely remedied by an instruction. State v. Davis,

345 Or 551, 583, 201 P3d 185 (2008) (some evidence is “so prejudicial that, as a practical matter, the bell once rung, cannot be unrung” by a jury instruction

(citations omitted)). Limiting the doctrine of chances to prior accidents will work to ensure that prior acts are admitted under OEC 404(3) only using nonpropensity reasoning.

II. The trial court erred in admitting all of the evidence regarding defendant’s prior driving over his objection.

The state contends that defendant failed to preserve his arguments that the trial court erred in admitting evidence of his confrontation with and his 10 driving habits. Resp BOM at 43-44, 46-48. However, defendant’s objections preserved those arguments for appellate review. When the state sought to admit

Howard and that defendant had “quote, blazed through the neighborhood before, taken off out of that house and got into an accident,” defendant objected to the relevance and admissibility of that evidence. Tr 329,

332-33. When defendant contested whether knew that defendant had been driving during the prior incident, the state explained that had confronted defendant about the incident, and the court adhered to its prior ruling. Tr 359-

61. The court’s revisited ruling went to the entire narrative of the prior incident, including the confrontation with Defendant’s objection to the admission of all evidence of the prior incident included the confrontation evidence.

In addition, defendant preserved his objection to evidence of his driving habits. In its initial motion in limine, the state argued for the admission of evidence that defendant had “blazed through the neighborhood before” and defendant objected to that evidence of his “prior driving in the neighborhood.”

Tr 330. 332-33. Howard testified that defendant had a “bad habit of racing in and racing out” of the neighborhood and had “blazed out of the neighborhood” before. Tr 440-441. The “blazed out of the neighborhood” statement appears to refer to defendant’s general driving habits, and not solely to the prior crash incident, as the state suggests. Resp BOM at 46. Thus, defendant’s objection 11 to the state’s motion in limine to admit evidence of his “prior driving in the neighborhood” preserved his objection to both the prior incident of reckless driving and all of the general driving-habits testimony.

Further, defendant specifically objected to Peterson’s testimony that his

“driving pattern” was that he would “scream” down the street.1 Tr 370. His objection “for reasons previously stated” underscores that he understood his initial objection to the state’s motion in limine as going to any testimony regarding his driving habits. The state faults defendant for failing to object to the relevance of Peterson’s testimony for purposes other than to prove his intent under the doctrine of chances. Resp BOM at 48. But the state never sought its admission for those purposes, as the state appears to concede. Resp BOM at 45,

47 (urging this court to decline to review for plain error because, had defendant objected, the state could have raised alternative relevance arguments below).

In short, defendant preserved his arguments on appeal, and the trial court erred in admitting the evidence of his confrontation with and his driving habits for the reasons stated in his brief on the merits. Pet BOM at 49-51.

III. The trial court’s error in admitting the evidence was not harmless. Defendant’s prior act of reckless driving constituted highly prejudicial propensity evidence. Pet BOM at 48, 52. Such evidence is likely to influence

1 Defendant notes that the state refers to that testimony as “ s testimony,” but it was the testimony of Peterson. Resp BOM at 48. 12 the jury for numerous reasons. Pet BOM at 15-16. Yet the state argues that its admission was harmless given other evidence contradicting defendant’s claim of accident: the physical evidence of the crashes themselves and Walby’s testimony that that the truck did not have mechanical problems. Resp BOM at

40-41.

The harmless-error analysis turns “on the possible influence of the error on the verdict rendered,” not on a de novo assessment of the strength of the state’s case. State v. Davis, 336 Or 19, 33, 77 P3d 111 (2003). The jury is likely to rely heavily on prior-acts evidence in reaching its verdict—it has been described as “the most prejudicial evidence imaginable against an accused.”

State v. Pinnell, 311 Or 98, 106 n 14, 806 P2d 110 (1991) (quoting People v.

Smallwood, 42 Cal 3d 415, 228 Cal Rptr 913, 922, 722 P2d 197 (1986)). Here, the state’s other evidence was far from dispositive on the question of the defendant’s intent: it is entirely speculative that the damage caused could not have been the result of an accident. The prior-act evidence went directly to discredit defendant’s primary defense, that the crashes were accidental. See Tr

619 (“What happened here was, in fact, an accident.”). And due to the high risk of unfair prejudice posed by the prior act, its erroneous admission had more than little likelihood of affecting the jury’s verdict. Finally, given that the evidence of defendant’s confrontation with and his driving habits was qualitatively different from the evidence of the prior act of reckless driving and 13 likely to further inflame the jury, its admission was not harmless and also requires reversal. Pet BOM at 52-53.

CONCLUSION

For the reasons stated in defendant’s opening and reply briefs, defendant respectfully requests that this court reverse the decision of the Court of Appeals and remand for a new trial.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______EMILY P. SELTZER OSB #124513 DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Defendant-Appellant David John Skillicorn III

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05

Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05 and (2) the word-count of this brief is 2,952 words.

Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes.

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioner's Reply Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on December 23, 2019.

I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Petitioner's Brief on the Merits will be eServed pursuant to ORAP 16.45 on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______EMILY P. SELTZER OSB #124513 DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Petitioner on Review David John Skillicorn III