414 P.3d 887
Or. Ct. App.2018Background
- Victim (M) was tackled from behind while jogging, rendered briefly unconscious, dragged into a brushy ditch, fought off the attacker, and sustained injuries; defendant was later connected by DNA and charged with kidnapping, attempted first‑degree sexual abuse (by forcible compulsion), and fourth‑degree assault.
- There was no direct evidence of sexual contact or of the attacker verbalizing a sexual purpose during the incident.
- The state introduced two handwritten notes that defendant left on cars in parking lots addressed to other, unknown women; the notes graphically expressed a desire to commit violent anal sex.
- Trial court admitted the notes over defense objection under OEC 404(3) as noncharacter evidence of motive/intent; defense argued they were irrelevant or unduly prejudicial and amounted to propensity evidence.
- Defendant moved for judgment of acquittal on the attempted sexual abuse count; trial court denied the motion.
- On appeal, the court ruled the notes were improperly admitted as noncharacter motive evidence because their probative value depended on a character/propensity inference; however, the court affirmed denial of the judgment of acquittal on attempted sexual abuse because the remaining circumstantial evidence could support a finding of sexual intent.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under OEC 404(3): Whether notes were admissible as noncharacter motive/evidence of intent | Notes show defendant had a general interest in violent, nonconsensual sex with female strangers, making sexual motive for the attack on M more likely | Notes are irrelevant to specific intent in the attack absent evidence of physical contact or targetting; admitting them improperly invites propensity reasoning and unfair prejudice | Reversed: notes not admissible under OEC 404(3) because their relevance depends on a character/propensity inference |
| Alternative 404(4) / propensity admissibility (raised on appeal) | Williams permits some propensity evidence; notes could be admitted under 404(4) as character evidence | Trial record did not present a character‑evidence theory below; state forfeited the argument | Court refused to consider 404(4)/propensity theory raised for first time on appeal |
| Harmless‑error: Whether erroneous admission of notes was harmless | (Not argued below on appeal) | Notes were highly inflammatory and central to proof of sexual motive; error prejudicial | Error not harmless; notes were qualitatively different and could have affected verdicts |
| Sufficiency of evidence for attempted sexual abuse (MJOA) | Circumstantial evidence (tackle, dragging to brushy area, attempt to hold down, no theft) permits inference of intent to commit sexual contact | No direct sexual act or words; notes should be excluded and remaining evidence insufficient | Affirmed denial of MJOA: a rational juror could infer intent to commit sexual contact from circumstances even without the notes |
Key Cases Cited
- State v. Williams, 357 Or. 1 (discussing scope of admissible propensity evidence in child sexual abuse cases)
- State v. Garrett, 350 Or. 1 (other‑acts evidence inadmissible where relevance relied on propensity inference)
- State v. Turnidge, 359 Or. 364 (framework for evaluating other‑acts evidence relevance and distinguishing character vs noncharacter purposes)
- State v. Wright, 283 Or. App. 160 (prior act evidence must show a substantial connecting link to be relevant for motive)
- State v. Hayward, 327 Or. 397 (uncharged conduct admissible as motive when facts of charged crime logically connect to that motive)
- State v. O'Hara, 136 Or. App. 15 (circumstantial facts—lying in wait, isolating victim, attempts to subdue—can support inference of sexual intent for attempted sexual‑assault convictions)