In this criminal case, defendant appeals the trial court’s judgment convicting him of one count of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427, based on incidents in Washington County involving one victim. On appeal, defendant assigns error to the trial court’s denial of his pretrial motion to exclude evidence of incidents of sexual contact between defendant and the victim in Multnomah County. For the reasons explained below, we conclude that the trial court did not err in denying defendant’s motion. Defendant also assigns error to the sentence that the trial court imposed on the sodomy count. We reject that argument without written discussion. Accordingly, we affirm.
Defendant was charged by indictment with one count of first-degree sodomy and one count of first-degree sexual abuse, based on an allegation that he had oral sex with the victim, who was 11 years old, at the victim’s residence in Washington County. Defendant was also charged with one count of first-degree sexual abuse based on an allegation that he kissed the victim at a transit center in Washington County.
Prior to trial, defendant filed a motion to exclude evidence of other incidents of sexual contact between defendant and the victim. At the hearing on the motion, the state informed the trial court that it planned to present evidence of three incidents in Multnomah County, two involving oral sex and one involving anal sex. The Multnomah County incidents occurred a few weeks after the initial Washington County incident at the victim’s residence. The victim did not report defendant’s conduct until after the Multnomah County incidents.
The state argued that evidence of the Multnomah County incidents was relevant for two reasons. First, the state argued that, under State v. McKay,
Second, the state argued that, under State v. Zybach,
In response to the state’s arguments, defendant contended that, even if the evidence was relevant under McKay to show his sexual interest in the victim and under Zybach'to explain the victim’s delayed reporting, OEC 403 provided “another specific reason to keep [the evidence] out.” OEC 403 provides, in part, that 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[.]” Defendant argued that the evidence of the Multnomah County incidents would be distracting and that its probative value was outweighed by the danger of unfair prejudice:
“We have a jury that will be seated to hear a case concerning alleged sexual actsthat occurred in Washington County. They’re not here to determine acts that occurred in other counties and other occasions. So our concern for the defense your Honor is that if the State is allowed to go into sexual acts that occurred in other counties, that will very much taint the jury against the defendant and deprive him of a fair trial. And that there is very real danger * * * of unfair prejudice outweighing the probative value; certainly there may be probative value, but the prejudice is extremely high.”
The trial court ruled that the evidence was relevant and admissible under both McKay and Zybach. Defendant then prompted the trial court to rule on his OEC 403 argument, and, after asking the parties their positions, the trial court ruled that the evidence was admissible:
“DEFENSE: Judge, I understand your ruling, of course with all due respect are you going to make a finding on my OEC 403 argument at all just so the record is complete?
“COURT: Okay, and [prosecutor], what’s the State’s position there then once again?
“STATE: Well the defense is arguing that it’s unfairly prejudicial and the State’s position is that the evidence is highly relevant and that the relevancy and the probative value greatly outweighs the prejudicial effect.
“COURT: Okay, anything else on that then?
“DEFENSE: No, I’ve made my argument your Honor.
“COURT: It’s relevant and it outweighs the prejudicial effects.”
The case proceeded to trial, during which the state presented a large amount of detailed evidence regarding the Multnomah County incidents. Defendant did not object to the amount or nature of that evidence at trial. The jury convicted defendant of all counts, and defendant appeals.
Defendant asserts that the trial court erred “in denying defendant’s motion in limine and consequently admitting evidence of defendant’s uncharged misconduct in another county.” We review the denial of a motion in limine “in light of the record made before the trial court when it issued the order, not the trial record as it may have developed at some later point.” State v. Pitt,
Before admitting evidence of a defendant’s uncharged misconduct, a trial court must, upon request, weigh the probative value of the evidence against the danger of unfair prejudice, as required by OEC 403. See State v. Holt,
We begin with defendant’s argument that the trial court “failed to make a record reflecting its exercise of discretion under OEC 403,” as required by State v. Mayfield,
“First, the trial judge should assess the proponent’s need for the uncharged misconduct evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, towhat extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution’s need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent’s evidence, to exclude all the proponent’s evidence or to admit only part of the evidence.”
The proponent of the evidence bears the burden of “convine [ing] the court that the evidence not only is logically relevant but also that its probative value is substantial enough to outweigh any attendant danger of unfair prejudice.” Mayfield,
In this case, the parties agree, and it is clear from the record, that the trial court conducted OEC 403 balancing. Nevertheless, defendant contends that the court erred in failing to make a more detailed record of its balancing process. According to defendant, the trial court committed reversible error because it “failed to make a record that reflects an exercise of discretion.”
Defendant is incorrect. As set out above, the state identified the two theories of relevance upon which it was relying, and defendant responded that, even if the evidence was relevant, the trial court should exclude it under OEC 403 because it would distract the jury and was highly prejudicial. After the trial court ruled that the evidence was relevant for the reasons proffered by the state, defendant specifically asked the trial court to rule on his OEC 403 argument. In response, the state asserted that the “evidence is highly relevant and that the relevancy and the probative value greatly outweighs the prejudicial effect,” and the trial court ruled, “It’s relevant and it outweighs the prejudicial effects.” Thus, given the parties’ arguments, we understand the trial court to have accepted the state’s argument that the evidence was relevant under McKay to show defendant’s sexual predisposition toward the victim and under Zybach to show why the victim delayed reporting the initial incident. We further understand the trial court to have rejected defendant’s argument that, even if the evidence was relevant, its probative value was substantially outweighed by the danger of unfair prejudice.
Although the trial court did not walk through the four-step Mayfield analysis on the record, the record is nevertheless sufficient in that it reflects that the trial court engaged in the “‘conscious process of balancing the costs of the evidence against its
Defendant argues that the trial court abused its discretion in refusing to exclude the evidence because, according to defendant, the evidence had little or no cognizable probative value under either of the state’s two theories and any probative value it had was substantially outweighed by the danger of unfair prejudice. Regarding the probative value of the evidence, defendant argues that the state did not need the evidence to prove “defendant’s sexual intent or purpose” under McKay because defendant “did not claim lack of sexual intent, which was undeniable given that one of the charged acts was oral sodomy.” Defendant further argues that the state did not need the evidence to show why the victim delayed reporting, because the state had other evidence to explain the timing of the victim’s report.
We begin with defendant’s contention that the evidence had no cognizable probative value under McKay. As mentioned, defendant asserts that, even if the evidence was relevant for the purpose of showing defendant’s sexual predisposition toward the victim, there was no need for the evidence here because it was obvious, and defendant did not dispute, that, if he committed the charged acts—that is, if he engaged in oral sex with or kissed the victim—he did so with a sexual purpose.
In McKay, the Supreme Court held that OEC 404(3) allows the introduction of evidence of other abuse of the victim by the defendant “to show the sexual inclination of [the] defendant towards the victim, not that he had a character trait or propensity to engage in sexual misconduct generally.”
In Pace, the Supreme Court explained, “In prosecutions for statutory rape, evidence of other similar criminal acts with the same child is admissible to show the lustful disposition of the defendant and the probability of his having committed the particular act charged in the indictment”
Defendant is correct that, in this case, there was no need for the evidence of the Multnomah County incidents to prove that, if defendant engaged in the charged acts, he
We turn to defendant’s argument that the evidence lacked cognizable probative value as to the victim’s delayed reporting. As we have explained, the information before the trial court when it decided defendant’s motion was that the three Multnomah County incidents occurred a few weeks after the charged incident at defendant’s residence in Washington County, and the victim did not report defendant’s conduct until after the Multnomah County incidents. The court decided that the evidence that defendant’s abuse of the victim had continued after the Washington County incidents was relevant to help explain why the victim had not reported the initial incident when it took place. See Zybach,
As mentioned, defendant argues that other evidence available to the state adequately explained the victim’s delayed reporting. Specifically, defendant relies on evidence presented at trial that the victim was afraid of defendant and did not report any sexual contact with defendant until an officer confronted him with reports of the contact from others. As explained above, however, we are reviewing the trial court’s denial of defendant’s motion in limine, and defendant did not argue, at the time of the hearing on the motion, that the evidence should be excluded because the state had other evidence to explain the delayed reporting.
The disputed evidence had cognizable probative value on both of the theories of relevance on which the trial court relied in admitting it. Under these particular circumstances, it was not an abuse of discretion for the court to decide that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice from it.
Affirmed.
Notes
It is unclear from the record whether the incident at the transit center in Washington County occurred before or after the Multnomah County incidents.
In Williams, the court suggested that the consideration of the proponent’s need for the evidence under OEC 403 arises, at least in part, from the requirement of due process:
“For instance, in Old Chief [v. United States], 519 US [172,] 174, [117 S Ct 644 ,136 L Ed 2d 574 (1997),] the United States Supreme Court held that a trial court had abused its discretion in rejecting the defendant’s stipulation to an element of the charged crime (in that case, a prior conviction), when the stipulation met all the government’s requirements for proving that element and the evidence proffered by the government ‘raise [d] the risk of a verdict tainted by improper considerations.’ The Court directed trial courts to weigh ‘whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decisions of this kind.’ Id. at 184.”
Defendant also argues that the Supreme Court’s holding in McKay was incorrect because a theory of relevance based on “sexual inclination” or “sexual interest” is actually just a propensity theory. He asserts that a “person’s ‘sexual inclination’ towards a particular person is another way of saying that he or she is likely to act in conformity with that character trait.” We reject that argument because the Supreme Court decided McKay and has not overruled it; thus, we are bound by its holding.
At the hearing on the motion in limine, the state did not give any information about how much or what kind of evidence it intended to present about the Multnomah County incidents, and defendant did not request the court to place any limits on its presentation of that evidence. Nor, as noted above, did defendant object to any of the evidence presented during trial. See generally Pitt,