State v. Hudman

Evidence is admissible under OEC 404(3) if it is relevant for a purpose other than to prove the person’s disposition or propensity to commit particular acts and that the person had acted in conformity with that disposition or propensity. To determine whether other-act evidence is relevant to show that a defendant engaged in the charged criminal conduct with the requisite intent, the trial court must consider the five factors set out in Johns, including whether “the physical elements of the [other] act and the [charged] act are similar.” If the answer to any of the five Johns questions is negative, then the evidence is not admissible as evidence of intent.

Defendant appealed a judgment of conviction for unlawful delivery of marijuana, and unlawful possession. Defendant contended on appeal that the trial court erred by impermissibly admitting propensity evidence onto the record that showed that a year following the seizure Defendant had stolen and sold marijuana in California. The Court ultimately found for Defendant, by finding that his act of stealing, and later selling legally grown marijuana was not similar enough under State v. Johns, 301 Or 535, 725 P2d 312 (1986), to prove Defendant’s intent. Finally, the Court also found that the State’s argument of little likelihood of the inadmissible evidence effected the verdict because it allowed the jurors to infer that that Defendant was the type of person to violate marijuana laws. Convictions for unlawful delivery of marijuana and unlawful possession of marijuana reversed and remanded; otherwise affirmed.