523 P.3d 1112
Or. Ct. App.2023Background
- Defendant Noah Powers was charged with four sexual offenses against his then-stepdaughter L (penetration with a finger, sodomy, attempted rape, sexual abuse).
- The State sought to admit certified 2006 convictions for Powers’ attempted sexual abuse of another stepdaughter, H; the trial court admitted the judgments and allowed H to testify only about her age and relationship to Powers.
- L disclosed abuse via handwritten notes and a Liberty House interview; notes and portions of the interview were admitted at trial.
- Mother testified corroborating timing and pornography; jail call and defendant’s own testimony (including admission of prior abuse of H) were also presented.
- Defense hired a handwriting expert but did not call him; the expert testified for the State on rebuttal that L authored the notes, and the jury convicted unanimously on all counts.
- On appeal Powers challenged (1) admission of prior-bad-act evidence, (2) limits on cross-examining mother about a prior DHS investigation, (3) admission of mother’s testimony about erectile dysfunction, (4) impeachment of defense witness Copeland, (5) admission of evidence that defense hired the handwriting expert, and (6) the nonunanimous-jury instruction.
Issues
| Issue | State's Argument | Powers' Argument | Held |
|---|---|---|---|
| Admissibility of prior sexual-abuse convictions/H’s testimony | Evidence admissible to prove intent and, alternatively, defendant’s sexual interest in children (propensity) under OEC 404(4); limiting instruction mitigates prejudice | Admission under OEC 404(3) was improper; 404(4) admission was overly prejudicial and tainted by the court’s earlier analysis | Trial court erred as to OEC 404(3) in light of Skillicorn but did not abuse discretion admitting the limited evidence under OEC 404(4) after OEC 403 balancing; conviction affirmed. |
| Limiting cross-examination about prior DHS investigation | State: prior DHS findings irrelevant and duplicative; existing record showed L had not disclosed before July 2018 | Need to question mother about DHS to impeach L and support defense theory that ex-husband influenced L | No reversible error: defendant failed to make an offer of proof and was not prejudiced; record already showed no earlier disclosure. |
| Admissibility of mother’s testimony about defendant’s erectile dysfunction | Relevant to whether defendant could have penile intercourse with L and to credibility given evidence of sexual attraction to children | Irrelevant and unduly prejudicial | Not legally erroneous; minimally relevant and probative value not substantially outweighed by prejudice. |
| Impeachment of defense witness Copeland about courtroom contacts (Feeney) | Proper impeachment given observed communications and court finding Feeney discussed testimony with potential witnesses | Unfair impeachment and prejudicial | No abuse of discretion; cross-examination permissible to explore possible sequestration violation influencing testimony. |
| Admission that defense hired handwriting expert who testified for State | Fact of hiring is relevant background; expert’s authorship opinion was relevant to notes authorship | Hiring had no probative value and only made defense look incompetent | Even if admitting hiring was error, any error was harmless given overwhelming other evidence; no likelihood verdict affected. |
| Nonunanimous-jury instruction | Court followed then-applicable Oregon practice permitting 10-2 verdict | Powers requested unanimous instruction; court gave 10-of-12 instruction | Instruction was erroneous under Ramos but not structural; harmless because actual verdicts were unanimous. |
Key Cases Cited
- State v. Skillicorn, 367 Or. 464 (2021) (limits on admitting prior-bad-act propensity evidence under OEC 404(3))
- State v. Johns, 301 Or. 535 (1986) (pre-Skillicorn framework for admitting uncharged misconduct to prove intent)
- United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (factors guiding admissibility of uncharged sexual misconduct)
- State v. Terry, 309 Or. App. 459 (2021) (post-Skillicorn admissibility analysis for propensity evidence using LeMay factors)
- State v. Moles, 295 Or. App. 606 (2019) (propensity evidence may be admissible where LeMay factors and limiting instructions support it)
- State v. Anderson, 363 Or. 392 (2018) (trial court need not recite detailed balancing on the record)
- State v. Davis, 336 Or. 19 (2003) (harmlessness standard for evidentiary error)
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (unanimous-jury requirement under the Constitution)