510 P.3d 979
Or. Ct. App.2022Background:
- Defendant convicted by jury of 4 counts first‑degree sexual abuse (ORS 163.427) and 2 counts first‑degree unlawful sexual penetration (ORS 163.411) involving his six‑year‑old daughter; total sentence 300 months.
- At trial, the court admitted evidence of uncharged sexual misconduct by defendant against the victim to show his sexual predisposition toward that particular victim, citing State v. McKay, and conducted an OEC 403 probative‑vs‑prejudice balancing.
- Defendant appealed the admission, arguing the trial court treated McKay evidence as non‑propensity when, he contended, it is propensity evidence and thus should have been excluded after proper 403 analysis.
- Defendant also appealed the denial of his motion for judgment of acquittal on Count 5 (alleged unlawful penetration at defendant’s home), arguing insufficient evidence.
- The Court of Appeals affirmed: it held McKay remains good law (McKay evidence is not propensity evidence), any Skillicorn change did not mandate reversal, the trial court did not abuse its 403 discretion, and the evidence supporting Count 5 was sufficient for a reasonable factfinder.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of uncharged sexual acts to show sexual predisposition | State: McKay permits uncharged acts to show sexual predisposition to this victim; trial court properly balanced under OEC 403 | De Leon Say: McKay evidence is actually propensity evidence; court mischaracterized it and should have excluded it as unduly prejudicial | Affirmed — McKay was not overruled; evidence admissible and 403 weighing was proper |
| Denial of judgment of acquittal on Count 5 (penetration at home) | State: victim’s testimony that defendant did the “same thing” at home as at work supports finding of penetration at home | De Leon Say: testimony was insufficient to prove unlawful penetration at home | Affirmed — viewed most favorably to the State, the evidence permitted a reasonable factfinder to convict |
Key Cases Cited
- State v. McKay, 309 Or 305 (admitted uncharged sexual misconduct to show sexual inclination toward particular victim, not general propensity)
- State v. Skillicorn, 367 Or 464 (clarified propensity evidence doctrine; did not expressly overrule McKay)
- State v. Terry, 309 Or App 459 (upheld 403 ruling despite trial court’s mischaracterization of relevance theory)
- State v. Cervantes, 319 Or 121 (explains standard for reviewing motions for judgment of acquittal: view evidence in light most favorable to the State)