State v. Terry, 482 P.3d 105

Defendant was convicted by a jury of two counts of first-degree sexual abuse for forcibly touching the breast of a 15‑year‑old; he denied the acts.
Before trial the state sought to admit four items of uncharged misconduct related to a 1997 conviction and statements: (1) a 1996 police statement in which defendant said he may have touched the prior victim while “asleep and confused”; (2) the fact of the 1997 conviction (attempted unlawful sexual penetration of a 10‑year‑old); (3) a statement that he would have difficulty turning down 10–13‑year‑olds; and (4) a therapy admission that while changing his toddler daughter’s diaper he became aroused and touched her vaginal area.
The trial court admitted the evidence under OEC 404(3) (non‑propensity purposes—intent/absence of mistake) and OEC 404(4) (propensity) and found under OEC 403 that probative value outweighed unfair prejudice.
The prosecutor argued propensity from those items in closing; the jury convicted.
On appeal the court held the trial court erred to the extent it admitted the evidence under OEC 404(3) because the state’s theory relied on propensity reasoning; it upheld admission of the conviction, the police statement, and the age‑preference statement under OEC 404(4)/OEC 403, but reversed admission of the therapy diapering admission as an abuse of discretion and found that error not harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence of uncharged misconduct was admissible under OEC 404(3) to prove intent/absence of mistake	Evidence shows defendant’s prior sexual conduct makes intent/non‑accident likely; admissible for non‑propensity purposes	Admission was actually propensity reasoning; legal error to admit under 404(3)	Reversed as to 404(3). Under Skillicorn, evidence offered based on propensity cannot be admitted under 404(3)
Whether evidence was admissible under OEC 404(4)/Williams and OEC 403 (LeMay balancing)	Evidence shows sexual interest in children and is probative; probative value not substantially outweighed by prejudice	Even if admissible under 404(4), OEC 403 balancing (using LeMay factors) requires exclusion as an abuse of discretion	Court upheld admission of the prior conviction, police statement, and age‑preference statement but concluded admitting the therapy diapering admission was an abuse of discretion and should have been excluded
Whether erroneous admission of the diapering therapy statement was harmless	Any error was harmless because other admissible evidence supported conviction	The diapering admission was highly inflammatory and prosecutor used it to argue loss of control; error likely affected verdict	Error not harmless; reversal and remand required

State v. Baughman, 361 Or 386 (2017) (standard for appellate review of trial court’s 404(3) relevancy rulings)
State v. Williams, 357 Or 1 (2015) (recognizes OEC 404(4) propensity admissibility subject to OEC 403 balancing)
State v. Skillicorn, 367 Or 464 (2021) (holds a theory that requires propensity reasoning cannot justify admission under OEC 404(3))
United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (nonexclusive factors to guide 403 balancing for uncharged sexual‑misconduct evidence)
State v. Moles, 295 Or App 606 (2018) (discusses trial court discretion in admitting sexual‑purpose propensity evidence under totality of circumstances)