A jury found defendant guilty of committing multiple sexual offenses against his biological daughter, S. A., and his stepdaughter, S. H. During trial, a different stepdaughter, T. N., was allowed to testify that defendant had committed similar acts of sexual abuse against her, that she had made allegations against defendant, that the case brought against defendant on the basis of those allegations was ultimately dismissed, and that, as a result of her allegations, she was ostracized from the family. The state contended, and the court agreed, that the testimony was relevant because it helped to explain why S. A. and S. H. had delayed reporting defendant’s acts involving them — that is, they delayed because they did not want to experience the same recriminations from their family that T. N. had experienced. Defendant appeals his convictions, arguing that the court erred by admitting evidence of his prior acts against T. N., because the state failed to prove by a preponderance of the evidence that, in fact, those acts occurred and defendant committed them. For the reasons that follow, we conclude that defendant failed to preserve the argument that he now raises on appeal and that, even assuming without deciding that any error was plain, we would decline to exercise our discretion to correct that error. We therefore affirm his convictions.
Defendant and Tina Andrews were married in 1995. At the time of the marriage, Andrews had two daughters, T. N. and S. H., who were seven and four years old, respectively. Defendant also had an eight-month-old daughter, S. A. At first, T. N. and S. H. lived full time with defendant and Andrews while S. A. would visit only on weekends.
In 2001, when she was 13 years old, T. N. told Andrews that defendant had been sexually abusing her. Andrews initially believed T. N. but, after speaking with defendant, she accused T. N. of lying. As a result, Andrews stopped speaking to T. N. for about two years. During that time, T. N. was not allowed to spend holidays with the rest of the family. T. N.’s accusation, however, never went to trial; the case against defendant was dismissed.
In the summer of 2007, S. A. moved into the family home in Oregon. Soon after, defendant allegedly began sexually abusing her as well. In 2008, defendant left Andrews and moved in with a new girlfriend. In February or March of 2009, S. A. and T. N. moved in with defendant. S. A. testified that she had hoped that, because of defendant’s new relationship, he would stop seeking sexual gratification from her. However, she testified that the instances of abuse continued and, in fact, became more frequent. In August of 2009, S. A. confided in some of her friends, who then facilitated her decision to leave defendant’s home. S. A. then told both her family and police that defendant had been sexually abusing her for years. This revelation prompted S. H. to report that defendant had been abusing her as well.
For his conduct towards S. A. and S. H., defendant was charged with numerous sexual offenses. Defendant was not charged with any crime for his conduct towards T. N., which allegedly had occurred in California and which was never prosecuted. At a pretrial hearing, however, the state moved to admit “ [e] vidence of [T. N.’s] prior allegations of sexual abuse, and the repercussions she suffered,” arguing that the evidence was “relevant to explain the delay in reporting of sexual abuse by [S. A.] and [S. H.]” At that same hearing, defendant asked the court to make the findings that, according to defendant, were required under State v. Johns,
The state did not agree that the court was required to make those findings, arguing that the Johns test is
On appeal, defendant does not argue that the trial court should have engaged in a balancing test under OEC 403 and made findings before admitting the disputed evidence. Rather, defendant now cites State v. Johnson,
The preservation question is a close one. As noted, defendant argued to the trial court that it had to assess, and make findings, concerning “the certainty of’ the fact that defendant had sexually abused T. N. On appeal, he argues that the court had to determine that defendant had sexually abused T. N. However, as we explain below, those arguments are significantly different. As defendant himself acknowledges, at trial, the issue arose in the context of an argument under OEC 403:
“Here, defendant properly requested that the trial court make the finding with respect to the certainty that the uncharged misconduct evidence occurred — albeit in the context of an OEC 403 argument. But in response to that request, the state objected. The state, as the proponent of the evidence had, as a foundational burden under OEC 404, the responsibility of proving to the trial court by a preponderance of the evidence that the uncharged misconduct evidence, in fact, occurred.”
It is beyond dispute, then, that defendant’s argument at trial was based on Johns and OEC 403. In particular, defendant relied on the language from Johns that appears to apply outside of questions involving only whether uncharged conduct evidence is relevant to prove intent. Under Johns, the court, in performing the balancing required by OEC 403, should consider “(1) the need for the evidence; (2) the certainty that the other crime was committed and that defendant was the actor, (3) the strength or weakness of the evidence; and (4) its inflammatory effect on the jury.”
Further, under OEC 403, the burden of persuasion is on the party seeking exclusion of the evidence — here, of course, defendant — and we review the trial court’s determination for abuse of discretion. State v. Sewell,
Furthermore, assuming (without deciding) that the trial court committed plain error by admitting evidence of uncharged conduct, we decline to exercise our discretion to correct that error. When deciding whether or not to review an error of law apparent on the record, we consider
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Alies v. Portland Meadows, Inc.,
Affirmed.
Notes
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
OEC 404(3) provides:
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”