391 P.3d 811
Or. Ct. App.2017Background
- Defendant was indicted for first-degree sodomy and two counts of first-degree sexual abuse based on alleged sexual acts with an 11‑year‑old victim in Washington County; additional uncharged incidents occurred weeks later in Multnomah County.
- The State sought to admit evidence of three Multnomah County incidents (two oral, one anal) to show defendant’s sexual interest in the victim and to explain the victim’s delayed reporting.
- Defendant moved in limine to exclude the Multnomah incidents under OEC 403 as unfairly prejudicial; the trial court ruled the evidence relevant under State v. McKay and State v. Zybach and denied exclusion, stating the probative value outweighed prejudice.
- At the motion hearing the parties argued relevance and prejudice but the court did not recite a step‑by‑step Mayfield balancing on the record; defendant later did not object during trial to the volume/nature of the evidence.
- The jury convicted on all counts; on appeal defendant challenged the in limine denial and the sufficiency of the court’s OEC 403 balancing and claimed the Multnomah evidence was more prejudicial than probative.
- The appellate court affirmed, holding the trial court conducted OEC 403 balancing (adequately reflected by the record), the Multnomah evidence had cognizable probative value under McKay and Zybach, and its probative value was not substantially outweighed by unfair prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Multnomah incidents (other acts) | Evidence is admissible under McKay to show sexual inclination toward this victim and under Zybach to explain delayed reporting | Evidence is impermissible propensity and highly prejudicial; should be excluded under OEC 403 | Admissible: court properly found relevance under McKay and Zybach and that probative value outweighed prejudice |
| Sufficiency of OEC 403 record | The record (parties’ positions and court ruling) shows the court exercised discretion and weighed probative value vs prejudice | Court failed to make a detailed Mayfield-style record reflecting a discrete balancing analysis | No error: court’s brief on-the-record ruling, viewed with parties’ arguments, sufficed to show OEC 403 balancing |
| Probative value under McKay (sexual predisposition) | Needed to show sexual inclination toward the victim and to prove conduct and credibility | Not needed because intent was obvious (charged acts implied sexual intent); therefore little probative value | McKay permits use of other-act evidence to prove both sexual inclination and the occurrence of charged acts; evidence had cognizable probative value |
| Probative value under Zybach (delayed reporting) | Continued abuse evidence explains why victim delayed reporting; relevant to credibility | State had other evidence explaining delay; Multnomah incidents unnecessary and prejudicial | Evidence of subsequent abuse reasonably explains delayed reporting; probative value supported admission and was not substantially outweighed by prejudice |
Key Cases Cited
- State v. McKay, 309 Or. 305, 787 P.2d 479 (1990) (OEC 404(3) allows other‑acts evidence to show defendant’s sexual inclination toward the specific victim and to prove conduct)
- State v. Zybach, 308 Or. 96, 775 P.2d 318 (1989) (evidence of an ongoing relationship or subsequent abuse is admissible to explain delayed reporting)
- State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987) (articulates a multi‑step OEC 403 balancing framework for other‑acts evidence)
- State v. Williams, 357 Or. 1, 346 P.3d 455 (2015) (discusses due process concerns and the need to weigh availability of other proof when admitting prejudicial evidence)
- Old Chief v. United States, 519 U.S. 172 (1997) (trial courts must consider whether proffered evidence’s prejudicial risk outweighs its probative value given alternative proof)