State v. Davis, 511 P.3d 10

Defendant wrote two graphic notes expressing a desire to inflict painful sexual acts on female strangers and left them on cars (one ~2 months, one 10 days before the charged incident).
Ten days after the second note, a woman jogging (M) was tackled from behind, dragged into a shallow ditch, fought off the attacker, and escaped; there was no evidence of sexual contact at the scene.
Defendant was charged with first‑degree kidnapping, attempted first‑degree sexual abuse, and fourth‑degree assault; DNA connected defendant to the scene and the victim could not identify her attacker.
At trial the state introduced the two notes to prove defendant’s sexual purpose/intent; the trial court initially admitted them under OEC 404(3), and the jury convicted.
On the first appeal the court held the notes were improperly admitted under OEC 404(3) and remanded for the court to consider admissibility under OEC 404(4) and to perform an OEC 403 balance.
On remand the trial court admitted the notes under OEC 404(4) and concluded OEC 403 did not require exclusion; the Court of Appeals reversed again, holding the trial court abused its discretion under OEC 403 because the notes’ inflammatory, propensity‑type nature created a substantial risk of unfair prejudice.

Issue	State's Argument	Davis's Argument	Held
Admissibility of notes under OEC 404(4) and OEC 403	Notes show defendant’s peculiar sexual interest and make intent to sexually assault the jogger more probable	Notes are propensity evidence, highly inflammatory, and any probative value is substantially outweighed by unfair prejudice	Notes were relevant but trial court abused discretion under OEC 403; probative value substantially outweighed by unfair prejudice — exclusion required
Constitutional due process challenge to propensity evidence	Trial court’s OEC 403 balancing sufficed; state emphasized need for evidence	Due process may prohibit admitting propensity evidence in non‑child‑sex cases; argument not preserved	Court did not decide the federal due‑process question (unnecessary and not preserved)

State v. Davis, 290 Or App 244 (2018) (earlier Davis I holding that the notes were erroneously admitted under OEC 404(3))
State v. Williams, 357 Or 1 (2015) (OEC 404(4) permits some other‑acts evidence in criminal cases; admissibility subject to OEC 403)
State v. Baughman, 361 Or 386 (2017) (explains interaction of OEC 404(4) and OEC 403 and remand procedure)
State v. Moles, 295 Or App 606 (2019) (discusses probative value and unfair prejudice analysis; cites LeMay factors for sexual‑misconduct evidence)
State v. Skillicorn, 367 Or 464 (2021) (propensity reasoning bars admission under OEC 404(3) when the relevance chain depends on character inference)
United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (nonexclusive factors for admitting uncharged sexual‑misconduct evidence under FRE 403)
Old Chief v. United States, 519 U.S. 172 (1997) (warning that otherwise relevant evidence may "lure the factfinder" to convict on improper grounds)
State v. Terry, 309 Or App 459 (2021) (addresses inflammatory nature of uncharged sexual‑misconduct evidence and limiting instructions)