State v. Travis, 513 P.3d 614

Background

Defendant was convicted of multiple sex crimes against M (initially his stepdaughter, later his wife); jury returned unanimous guilty verdicts on 12 counts.
The State sought to admit a 1992 first-degree rape conviction of defendant (against his biological daughter) and related materials as "other acts" evidence.
At a pretrial hearing the State argued the evidence was relevant both as noncharacter evidence under OEC 404(3) (to show motive/sexual intent) and as character/propensity evidence under OEC 404(4); the State later conceded on appeal 404(3) admission was improper.
The trial court admitted the prior-conviction evidence after applying a Johns-style noncharacter (404(3)) analysis and instructed the jury to consider it only for motive, plan, intent, or sexual interest in children.
On appeal defendant argued the court never considered the evidence for a permissible character purpose under OEC 404(4) and therefore performed an improper OEC 403 balancing; the Court of Appeals agreed and found the error prejudicial given the case turned on credibility.
Court reversed and remanded for the trial court to reanalyze admissibility under OEC 404 and OEC 403 and to decide whether retrial is required.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prior rape conviction was admissible under OEC 404(3) (noncharacter)	Evidence showed sexual motive/intent and class of victim; admissible under Johns-style noncharacter theories	Prior conviction was not admissible for noncharacter purposes; State conceded this on appeal	State conceded and appellate court accepted that 404(3) admission was improper
Whether evidence was admissible under OEC 404(4) (character/propensity)	Even if 404(3) improper, evidence was admissible as 404(4) propensity evidence and trial court implicitly considered that purpose	Trial court did not actually consider 404(4) purpose; therefore 403 balancing was flawed	Record shows trial court only considered 404(3); cannot infer it considered 404(4) — state’s implicit-affirmance argument rejected
Whether trial court’s OEC 403 balancing was valid given the purpose of admission	Trial court understood purpose (sexual interest in children) and balanced accordingly	Because the court used the wrong purpose (404(3)), it overstated probative value and failed to balance prejudice correctly	OEC 403 balancing depends on purpose; because court balanced under noncharacter theory, its 403 analysis was unreliable
Whether erroneous admission was harmless	The State argued error was harmless given other evidence	Defendant argued error was prejudicial because case rested on credibility and the prior conviction bolstered the State’s witness	Error was not harmless: prior conviction likely bolstered victim credibility in a credibility contest; reversal and remand required

Key Cases Cited

State v. Williams, 357 Or 1 (2015) (describes OEC 404(4) exception and limited probative value of propensity evidence)
State v. Baughman, 361 Or 386 (2017) (adopts two-step framework: assess 404(3) relevance first, then 403; if not 404(3), consider 404(4) and 403)
State v. Skillicorn, 367 Or 464 (2021) (overruled Johns to the extent it allowed doctrine-of-chances noncharacter admissions for uncharged misconduct)
State v. Terry, 309 Or App 459 (2021) (trial court’s explicit 404(4) finding can vindicate admission when 404(3) analysis was erroneous)
State v. Martinez, 315 Or App 48 (2021) (holding sexual-purpose theories often impermissible under 404(3); remand required when court admitted evidence only under 404(3))
State v. Johns, 301 Or 535 (1986) (doctrine-of-chances framework for intent; later limited by Skillicorn)