Johns test in Oregon

2018However, as we recently explained, "[e]vidence offered to prove intent by showing the defendant's motive is not subject to the Johns analysis." State v. Tena , 281 Or.App. 57 , 59, 384 P.3d 521 , 523 (2016), rev. allowed , 360 Or. 752 , 388 P.3d 721 (2017).

2018However, as we recently explained, "[e]vidence offered to prove intent by showing the defendant's motive is not subject to the Johns analysis." State v. Tena , 281 Or.App. 57 , 59, 384 P.3d 521 , 523 (2016), rev. allowed , 360 Or. 752 , 388 P.3d 721 (2017).

2016State v. Bracken, 174 Or App 294, 300 , 23 P3d 417 (2001); see also State v. Tena, 281 Or App 57, 70 , 384 P3d 521 (2016) (“[A]s explained in [State v. Turnidge (S059155), 359 Or 364 , 374 P3d 853 (2016)], the Johns analysis applies whenever the evidence is offered to prove ‘intent,’ specifically in the sense of ‘absence of mistake or accident,’ under the doctrine of chances.

2016State v. Bracken, 174 Or App 294, 300 , 23 P3d 417 (2001); see also State v. Tena, 281 Or App 57, 70 , 384 P3d 521 (2016) (“[A]s explained in [State v. Turnidge (S059155), 359 Or 364 , 374 P3d 853 (2016)], the Johns analysis applies whenever the evidence is offered to prove ‘intent,’ specifically in the sense of ‘absence of mistake or accident,’ under the doctrine of chances.

2018It was not until after trial that the Supreme Court decided State v. Turnidge , 359 Or. 364 , 374 P.3d 853 (2016), which clarified that the Johns framework for assessing the relevance of prior bad acts evidence applied in a narrower category of cases than previously understood: those cases in which relevance turns on a doctrine-of-chances theory.

2018It was not until after trial that the Supreme Court decided State v. Turnidge , 359 Or. 364 , 374 P.3d 853 (2016), which clarified that the Johns framework for assessing the relevance of prior bad acts evidence applied in a narrower category of cases than previously understood: those cases in which relevance turns on a doctrine-of-chances theory.

2016As described above, in Moen , the Supreme Court stated that, “[i]f the evidence is relevant to prove intent, then it should be tested under” the Johns factors. 309 Or at 67 .

2016As described above, in Moen , the Supreme Court stated that, “[i]f the evidence is relevant to prove intent, then it should be tested under” the Johns factors. 309 Or at 67 .

2023In so ruling, the trial court applied “a Johns analysis.” State v. Johns, 301 Or 535 , 725 P2d 312 (1986), was largely overruled by Skillicorn, 367 Or at 476 , which explained that, “[i]f the proponent’s the- ory of relevance requires the factfinder to employ propensity reasoning, then the trial court cannot admit the evidence based on that theory under OEC 404(3).” Here, by admitting the prior acts evidence under OEC 404(3) as relevant to show defendant’s intent, the trial court invited the jury to infer that defendant was the kind of person who would intentionally subject a minor to sexual c

2023In so ruling, the trial court applied “a Johns analysis.” State v. Johns, 301 Or 535 , 725 P2d 312 (1986), was largely overruled by Skillicorn, 367 Or at 476 , which explained that, “[i]f the proponent’s the- ory of relevance requires the factfinder to employ propensity reasoning, then the trial court cannot admit the evidence based on that theory under OEC 404(3).” Here, by admitting the prior acts evidence under OEC 404(3) as relevant to show defendant’s intent, the trial court invited the jury to infer that defendant was the kind of person who would intentionally subject a minor to sexual c

2016Consequently, in Johns , the court formulated a six-factor test for determining whether another act is sufficiently similar to a charged act to be admitted on a doctrine-of-chances theory. 5 Id. at 555-56 ; see also State v. McIntyre, 252 Or App 16, 24 , 284 P3d 1284 (2012) (the Johns test serves “[t]o ensure that the necessary degree of similarity exists between multiple instances of similar conduct”).

2016Consequently, in Johns , the court formulated a six-factor test for determining whether another act is sufficiently similar to a charged act to be admitted on a doctrine-of-chances theory. 5 Id. at 555-56 ; see also State v. McIntyre, 252 Or App 16, 24 , 284 P3d 1284 (2012) (the Johns test serves “[t]o ensure that the necessary degree of similarity exists between multiple instances of similar conduct”).

2012See State v. Leach, 169 Or App 530, 534 , 9 P3d 755 (2000), rev den, 332 Or 632 (2001) (“We note, at the outset, that there is a substantial and unresolved question as to whether ‘prior bad acts’ evidence can ever be admitted as being relevant to intent where, as here, the defense is that the charged crime never occurred.”); see also State v. Bunting, 189 Or App 337, 344 , 76 P3d 137 (2003) (“Having concluded that evidence relating to defendant’s 1991 convictions did not meet the Johns test for evidence offered under OEC 404(3) to prove intent, we need not answer the question identified in Lea

2012See State v. Leach, 169 Or App 530, 534 , 9 P3d 755 (2000), rev den, 332 Or 632 (2001) (“We note, at the outset, that there is a substantial and unresolved question as to whether ‘prior bad acts’ evidence can ever be admitted as being relevant to intent where, as here, the defense is that the charged crime never occurred.”); see also State v. Bunting, 189 Or App 337, 344 , 76 P3d 137 (2003) (“Having concluded that evidence relating to defendant’s 1991 convictions did not meet the Johns test for evidence offered under OEC 404(3) to prove intent, we need not answer the question identified in Lea

2016Tena, 281 Or App at 70 (“[T]he court’s holding in Turnidge that ‘the analytical framework that Johns announced was specific to the “doctrine of chances” relevancy theory at issue in that case,’ 359 Or at 434 , abrogates Moen’s reliance on the Johns test.”); see also State v. Clarke, 279 Or App 373 , 386 n 7, 379 P3d 674 (2016) (“Turnidge strongly indicates that the Moen court was incorrect in applying the Johns framework to the evidence at issue in that case.”).

2016Tena, 281 Or App at 70 (“[T]he court’s holding in Turnidge that ‘the analytical framework that Johns announced was specific to the “doctrine of chances” relevancy theory at issue in that case,’ 359 Or at 434 , abrogates Moen’s reliance on the Johns test.”); see also State v. Clarke, 279 Or App 373 , 386 n 7, 379 P3d 674 (2016) (“Turnidge strongly indicates that the Moen court was incorrect in applying the Johns framework to the evidence at issue in that case.”).

2016See Pratt, 309 Or at 214 (where one victim was abducted, raped at a motel, and, apart from the rape, not seriously injured and the second was not abducted, was raped, if at all, in a truck or by the side of the road, and then killed, differences between the two rapes were so significant that, “[a]side from its tendency to show that defendant is the sort of man who commits rape, the [first] abduction and rape is not probative of defendant’s intent to rape [the second victim]”); see also, e.g., Hudman, 279 Or App at 188-89 (defendant’s joint marijuana-growing operation and plans to sell marijuan

2008Although they do, at least arguably, show sexual motivation, they are not sufficiently similar to the charged misconduct to pass the fourth and fifth Johns inquiry: the acts are not of a “type” that is similar to the “type” of act charged, and they do not have similar “physical elements.” Although similarity between uncharged and charged misconduct must be gauged on a case-by-case basis, Pratt, 309 Or at 214 , cases from the Supreme Court and this court provide helpful guidance.

2016See, e.g., State v. McIntyre, 252 Or App 16 , 27 n 10, 284 P3d 1284 (2012) (stating that the enactment of OEC 404(4) “effectively removed [the sixth] factor from the Johns analysis”); State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001).

2016See, e.g., State v. McIntyre, 252 Or App 16 , 27 n 10, 284 P3d 1284 (2012) (stating that the enactment of OEC 404(4) “effectively removed [the sixth] factor from the Johns analysis”); State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001).

2012See State v. Deloretto, 221 Or App 309, 314 , 189 P3d 1243 (2008), rev den, 346 Or 66 (2009) (explaining that “[t]he [Johns] inquiry is cumulative: if the answer to any of the first five inquiries is negative, then the evidence is not relevant”); State v. Rinkin, 141 Or App 355, 368 , 917 P2d 1035 (1996) (reasoning that the state “ha[s] the burden of demonstrating admissibility under the Johns test and that, “if any [of the Johns factors] is not met, the evidence must be excluded”).

2012See State v. Deloretto, 221 Or App 309, 314 , 189 P3d 1243 (2008), rev den, 346 Or 66 (2009) (explaining that “[t]he [Johns] inquiry is cumulative: if the answer to any of the first five inquiries is negative, then the evidence is not relevant”); State v. Rinkin, 141 Or App 355, 368 , 917 P2d 1035 (1996) (reasoning that the state “ha[s] the burden of demonstrating admissibility under the Johns test and that, “if any [of the Johns factors] is not met, the evidence must be excluded”).

2012See State v. Jones, 246 Or App 412, 418 , 266 P3d 151 (2011) (“[A]s we recognized in State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001), the enactment of OEC 404(4) in 1997 effectively removed that factor from the Johns analysis.”).

2012See State v. Jones, 246 Or App 412, 418 , 266 P3d 151 (2011) (“[A]s we recognized in State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001), the enactment of OEC 404(4) in 1997 effectively removed that factor from the Johns analysis.”).

2020During the first of two days of the pretrial hear- ing on defendant’s motion in limine, the state cited State v. Blanscet, 230 Or App 363 , 315 P3d 924 (2009), and State v. Millar, 127 Or App 76 , 871 P2d 482 (1994), in support of its argument that evidence of defendant’s Facebook communi- cations with people in the Philippines and evidence found on defendant’s computer and in emails was relevant and met the Johns test to prove intent and also the three-part Blanscet test to prove motive.

2020During the first of two days of the pretrial hear- ing on defendant’s motion in limine, the state cited State v. Blanscet, 230 Or App 363 , 315 P3d 924 (2009), and State v. Millar, 127 Or App 76 , 871 P2d 482 (1994), in support of its argument that evidence of defendant’s Facebook communi- cations with people in the Philippines and evidence found on defendant’s computer and in emails was relevant and met the Johns test to prove intent and also the three-part Blanscet test to prove motive.

2020During the first of two days of the pretrial hear- ing on defendant’s motion in limine, the state cited State v. Blanscet, 230 Or App 363 , 315 P3d 924 (2009), and State v. Millar, 127 Or App 76 , 871 P2d 482 (1994), in support of its argument that evidence of defendant’s Facebook communi- cations with people in the Philippines and evidence found on defendant’s computer and in emails was relevant and met the Johns test to prove intent and also the three-part Blanscet test to prove motive.

2020During the first of two days of the pretrial hear- ing on defendant’s motion in limine, the state cited State v. Blanscet, 230 Or App 363 , 315 P3d 924 (2009), and State v. Millar, 127 Or App 76 , 871 P2d 482 (1994), in support of its argument that evidence of defendant’s Facebook communi- cations with people in the Philippines and evidence found on defendant’s computer and in emails was relevant and met the Johns test to prove intent and also the three-part Blanscet test to prove motive.

2018App. 51 , 55, 380 P.3d 1023 (2016) (recognizing that Turnidge abrogated cases applying the Johns framework to assess relevance of prior bad acts under theories other than the doctrine of chances).

2018App. 51 , 55, 380 P.3d 1023 (2016) (recognizing that Turnidge abrogated cases applying the Johns framework to assess relevance of prior bad acts under theories other than the doctrine of chances).

2017The Court of Appeals determined that the challenged evidence was relevant for only one of those purposes—to prove defendant’s intent under the Johns analysis—but not for the other two purposes— *393 to prove identity and to bolster the victim’s credibility. 4 Id. at 771.

2017The Court of Appeals determined that the challenged evidence was relevant for only one of those purposes—to prove defendant’s intent under the Johns analysis—but not for the other two purposes— *393 to prove identity and to bolster the victim’s credibility. 4 Id. at 771.

2017State v. Turnidge (S059155), 359 Or 364, 435 , 374 P3d 853 (2016), cert den, _US_, 137 S Ct 665 (2017) (Turnidge) (explaining that evidence offered to prove intent on a doctrine-of-chances theory must satisfy the multi-factor Johns test); see also State v. Tena, 281 Or App 57 , 65 n 4, 384 P3d 521 (2016), rev allowed, 360 Or 752 (2017) (noting that the doctrine of chances supports the admission of other acts evidence only when the other acts and charged acts are similar and claimed to have been the result of an accident or mistake).

2017State v. Turnidge (S059155), 359 Or 364, 435 , 374 P3d 853 (2016), cert den, _US_, 137 S Ct 665 (2017) (Turnidge) (explaining that evidence offered to prove intent on a doctrine-of-chances theory must satisfy the multi-factor Johns test); see also State v. Tena, 281 Or App 57 , 65 n 4, 384 P3d 521 (2016), rev allowed, 360 Or 752 (2017) (noting that the doctrine of chances supports the admission of other acts evidence only when the other acts and charged acts are similar and claimed to have been the result of an accident or mistake).

2015See, e.g., State v. Davis, 156 Or App 117, 124 , 967 P2d 485 (1998) (applying Johns test and concluding that “[e]vidence of prior bad conduct is not admissible under OEC 404(3) to show that defendant acted in conformity with his bad character”); State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001) (“If the evidence is relevant ** * OEC 404(4) makes it admissible without balancing under OEC 403 unless the state or federal constitution requires that balancing.”).

2015See, e.g., State v. Davis, 156 Or App 117, 124 , 967 P2d 485 (1998) (applying Johns test and concluding that “[e]vidence of prior bad conduct is not admissible under OEC 404(3) to show that defendant acted in conformity with his bad character”); State v. Dunn, 160 Or App 422, 430 , 981 P2d 809 (1999), rev den, 332 Or 632 (2001) (“If the evidence is relevant ** * OEC 404(4) makes it admissible without balancing under OEC 403 unless the state or federal constitution requires that balancing.”).

2001We relied in part on State v. Pyle, 155 Or App 74 , 963 P2d 721 , rev den 328 Or 115 (1998), as support for use of the Johns factors in analyzing motive.

2001We relied in part on State v. Pyle, 155 Or App 74 , 963 P2d 721 , rev den 328 Or 115 (1998), as support for use of the Johns factors in analyzing motive.

1999That understanding is unsurprising given *521 the ubiquity of the Johns analysis as a virtual template under OEC 404(3). 8 Defendant’s objection thus reasonably alerted the prosecutor and the court that the Johns analysis was fairly “in play.” See State v. Mayfield, 302 Or 631, 645 , 733 P2d 438 (1987) (state, as “the proponent of uncharged misconduct evidence * * * must convince the court that the evidence is * * * logically relevant”); State v. Wert, 144 Or App 581, 584 , 927 P2d 1103 (1996), rev den 325 Or 369 (1997) (same).

1999That understanding is unsurprising given *521 the ubiquity of the Johns analysis as a virtual template under OEC 404(3). 8 Defendant’s objection thus reasonably alerted the prosecutor and the court that the Johns analysis was fairly “in play.” See State v. Mayfield, 302 Or 631, 645 , 733 P2d 438 (1987) (state, as “the proponent of uncharged misconduct evidence * * * must convince the court that the evidence is * * * logically relevant”); State v. Wert, 144 Or App 581, 584 , 927 P2d 1103 (1996), rev den 325 Or 369 (1997) (same).

1996Id. at 575-76 , 783 P.2d 531 . [5] See Walters v. Maass, 11 F.3d 892 (9th Cir1993). [6] As noted, 141 Or.App. at 360 , 917 P.2d at 1038 , defendant, although assigning error to the admission of "L" letters, does not contend that the record including those letters was legally insufficient to support a finding of intent. [7] The state suggests that the Johns test has been "refined" and implicitly superseded by the three-part inquiry set out in State v. Johnson, 313 Or. 189, 195 , 832 P.2d 443 (1992): "(1) The evidence must be independently relevant for a noncharacter purpose; (2) the proponent o

1996Id. at 575-76 , 783 P.2d 531 . [5] See Walters v. Maass, 11 F.3d 892 (9th Cir1993). [6] As noted, 141 Or.App. at 360 , 917 P.2d at 1038 , defendant, although assigning error to the admission of "L" letters, does not contend that the record including those letters was legally insufficient to support a finding of intent. [7] The state suggests that the Johns test has been "refined" and implicitly superseded by the three-part inquiry set out in State v. Johnson, 313 Or. 189, 195 , 832 P.2d 443 (1992): "(1) The evidence must be independently relevant for a noncharacter purpose; (2) the proponent o

2023See Williams, 357 Or at 21 (discussing the crime of first-degree sexual abuse and explaining that the state is required to prove touching with a sexual purpose).

2023See Williams, 357 Or at 21 (discussing the crime of first-degree sexual abuse and explaining that the state is required to prove touching with a sexual purpose).

2022See Levasseur, 309 Or App at 750 (noting trial court’s reli- ance on Johns analysis in admitting other acts evidence).

2016See Pratt, 309 Or at 214 (where one victim was abducted, raped at a motel, and, apart from the rape, not seriously injured and the second was not abducted, was raped, if at all, in a truck or by the side of the road, and then killed, differences between the two rapes were so significant that, “[a]side from its tendency to show that defendant is the sort of man who commits rape, the [first] abduction and rape is not probative of defendant’s intent to rape [the second victim]”); see also, e.g., Hudman, 279 Or App at 188-89 (defendant’s joint marijuana-growing operation and plans to sell marijuan

2016See, e.g., State v. Moen, 309 Or 45, 67, 68 , 786 P2d 111 (1990) (applying Johns test to evidence of recent threats against the victim that showed the defendant’s “hostile motive, which in turn is probative of [the defendant’s] intent”); Harris, 81 Or App at 578 (in an attempted murder case, applying Johns test to evidence that defendant disliked “whites” and acted violently when he had been drinking).

2016We held that the Johns test applied “in determining whether the evidence is relevant to the defendant’s intent.” Id. at 577 .