State v. Baughman (2016)
by David S. Marshall
An appellate court in Oregon has reversed and remanded convictions for unlawful sexual penetration, sexual abuse, and sodomy because the trial court erred in admitting evidence of the defendant’s prior bad acts.
The State accused the defendant, Russell Baughman, of sexually abusing his girlfriend’s daughter, who is referred to in the case as “B.”
Before trial, the prosecution moved to admit evidence of the defendant’s prior bad acts, namely, uncharged acts of sexual contact with B and another girl referred to as “A.”
Baughman argued that the State’s proffered testimony of A and B regarding past sexual abuse was not relevant for any other purpose than to show that the defendant had the propensity to commit the alleged acts against B.
Under the Oregon evidence rules, crimes, wrongs, or other acts cannot be used for the purpose of showing that the defendant had the propensity to commit the crimes of which he is accused.
Such prior bad acts can be admissible, though, for other purposes, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. But prior bad acts evidence is still inadmissible if its unfairly prejudicial effect would be greater than its probative value.
Washington Rule of Evidence 404(b) takes the same approach. Prior bad acts are inadmissible to prove propensity to commit the charged crimes, but they are admissible for other purposes—provided their probative value isn’t outweighed by the unfair prejudice they would cause. (Washington Rule of Evidence 403 also generally prohibits evidence that is more unfairly prejudicial than probative.)
Here, the trial court admitted the girls’ testimony, reasoning that the evidence could show the identity of the defendant, bolster the credibility of the alleged victim, and show the defendant’s intent. The trial court instructed the jury that it could not use the evidence to conclude that Baughman assaulted B—that it could only use the evidence of prior bad acts as allowed by the evidence rules.
The jury convicted Baughman, and he appealed. He argued that the trial court erred because it failed to balance the unfairly prejudicial versus probative nature of the evidence.
The appellate court first discussed whether the evidence was relevant to show the defendant’s identity. In order to prove identity, the acts must be unique to the defendant, such as if it showed a defendant’s “signature crime.” Here, the testimony of the girls’ alleged sexual abuse did not have such uniqueness.
The court went on to say that the evidence also could not be used to bolster the alleged victim’s credibility. Such purpose is just another name for propensity evidence, which is prohibited.
Finally, the court held that A’s testimony was admissible to show the defendant’s intent, because the incidents that A testified about were the same or similar to the charge at issue in the present case.
However, the trial court erred because it did not perform the required balancing test to determine whether the evidence, though admissible to show intent, was more probative than unfairly prejudicial. Because the failure to perform such a balancing test violated the defendant’s due process rights under the U.S. Constitution, the more stringent test for harmlessness, the one for constitutional error, had to be applied; by that test, the error was not harmless, so a new trial was required.