256 P.3d 138
Or. Ct. App.2011Background
- Defendant was convicted of first-degree rape and furnishing alcohol to a minor in Oregon.
- The trial court admitted uncharged misconduct evidence (B, C, S, R, P) to prove lack of consent, not character.
- Evidence showed four incidents within 14 months where defendant incapacitated victims with alcohol and forced sex or attempted rape.
- A fifth prior incident occurred about seven years earlier with non-alcohol incapacitation; evidence criticized but admitted.
- The court imposed an upward departure sentence based on a substantial and compelling reason, and awarded a compensatory fine later found unsupported by damages; case remanded for resentencing.
- The case was tried to the court, and the defendant’s theory was that the victim consented; evidence of other sexual encounters was admitted to rebut that theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of uncharged misconduct to prove lack of consent | State argues 404(3) applies to show lack of consent | Klontz argues 404(3) is inapplicable to consent | Admissible under 404(3) as noncharacter evidence to show nonconsent |
| Relation to Johns test for prior similar acts | State contends Johns not applicable; focus is lack of consent | Klontz argues Johns controls admissibility | Johns test not controlling; Johnson framework applies |
| Proper framework for admission of uncharged acts to prove lack of consent | Evidence shows incapacity/ lack of consent consistent with charged conduct | Evidence improperly used to imply propensity or character | Johnson/Momeni/Leistiko framework supports admissibility |
| Whether departure sentence used proper standard of proof | State argues substantial and compelling standard aligns with Apprendi | Argues possible below reasonable doubt standard | Departure supported by Oregon sentencing standards; not a constitutional error |
| Validity of compensatory fine | N/A | N/A | Compensatory fine unsupported by evidence of pecuniary damages; remanded for resentencing |
Key Cases Cited
- State v. Johnson, 340 Or. 319 (2006) (test for admissibility of uncharged acts to show lack of consent; framework for 404(3))
- State v. Momeni, 234 Or.App. 193 (2010) (applies Johnson framework to similar nonconsensual acts)
- State v. Leistiko, 240 Or.App. 338 (2011) (admissibility of uncharged acts to rebut consent defense in internet solicitation context)
- State v. Bracken, 174 Or.App. 294 (2001) (recognizes Johns analysis not applicable when proving lack of consent)
- State v. Snyder, 220 Or.App. 440 (2008) (compensatory fines require evidence of economic damages)