Defendant appeals from a judgment of conviction and sentence for one count of rape in the first degree, ORS 163.375, two counts of unlawful sexual penetration in the first degree, ORS 163.411, two counts of sexual abuse in the first degree, ORS 163.427, and one count of criminal mistreatment in the first degree, ORS 163.205, all arising from defendant’s conduct towards “C,” a six-year-old girl. Defendant assigns error, inter alia, to the trial court’s denial of his motion in limine to exclude certain portions of his videotaped interview with the police. 1 He argues principally that that evidence, which referred to incidents of uncharged prior misconduct, including defendant’s 14-year incestuous relationship with his stepdaughter beginning when she was 14, was inadmissible under OEC 404(3). We affirm in part and reverse in part.
In April 1996, Hermiston Police Officer Denise Moore, received a report that defendant had sexually abused “C,” the six-year-old daughter of a friend, whom he regularly babysat. Moore interviewed “C” and then, on May 1, conducted a videotaped interview of defendant. At the beginning of the interview, Moore told defendant that allegations of sexual abuse had been made against him, and she indicated that she was aware that he previously had been accused of sexual abuse. Defendant admitted that he had, in fact, had a sexual “relationship,” which included intercourse, with his stepdaughter beginning when she was 14 years old and continuing until she was 28. That relationship had ended several years before. When Moore suggested that some children “turned [defendant] on” sexually, defendant acknowledged that his stepdaughter had so affected him.
Moore also told defendant that authorities had received a report that defеndant’s son had, in the past, had “red around his anus.” Defendant responded that that report had “nothing to do with any kind of sex,” and, when asked specifically, defendant flatly denied ever touching his son. *515 Later, when Moore asked him whether he would have touched his son if he had been a girl, defendant replied, “I don’t think so.”
During the interview, defendant and Moore also extensively discussed defendant’s contact with “C” over the preceding months. Defendant admitted that he took care of “C” one or two days a month and that she had occasionally sрent the night at his home. He acknowledged that he had taken baths naked with “C” on “four or five” occasions and said that they had agreed to keep that their “secret.” Defendant also admitted that he had put lotion on “C’s” “crotch” area but denied that it was for a sexual purpose. Rather, he explained, he had applied the lotion because “C” did not wipe herself well and was “all blistered.” Although defendant initially stated that he had rubbed the lotion “in her crotch,” he adamantly denied any insertion or penetration of the vаgina or rectum. When Moore asked defendant if he thought there was anything wrong with putting lotion on “C,” defendant responded, “not if the right person did it, but I should not have been doing it.”
Toward the end of the interview, Moore asked defendant if he wanted to write an apology letter to “C.” Defendant agreed. As defendant was writing that letter, and while he was still being videotaped, Moore received a telephone call from another person. That call was unrelated to defendant, but Moore’s side of the conversation could be clearly heard on the video. During that conversation, Moore asked the caller if he was still willing to take a polygraph examination but indicated that it might not be necessary. Thereafter, Moore hung up, defendant finished his letter, and Moore questioned him about the meaning of the letter’s content. Moore then placed defendant under arrest and ended the interview.
Defendant was indicted on one count of first-degree rape, ORS 163.375, two counts of unlawful sexual penetration in the first degree, ORS 163.411, two counts of sexual abuse in the first degrеe, ORS 163.427, and one count of criminal mistreatment in the first degree, ORS 163.205. 2
*516 On March 31, 1997, at a pretrial hearing, and in anticipation that the state intended to offer the videotape of the interview in its case-in-chief, defendant moved to exclude portions of the tape. 3 Defendant specifically sought to exclude those portions relating to: (1) defendant’s discussion of the long-term sexual relationship with his stepdaughter; (2) Moore’s questions about whether defendant had sexually abused his son; and (3) Moore’s telephone conversatiоn discussing the polygraph with the third party. The trial court ruled that the evidence was “in,” stating that defendant’s motion “regarding prior bad acts, [would] be disallowed, as well as the polygraph.” The court offered no explanation for its denial of the motion and made no findings. The court granted defendant a continuing objection to the introduction of that evidence, and the case proceeded to trial before a jury.
At trial, the state presented testimony of six witnesses, as well as the entire videotaped interview of defendant. “C” testified describing defendant’s conduct, including testifying that he had hurt her when he touched her and put his “privates and his finger” inside her vagina and rectum. In addition, the state presented the testimony of “C’s” mother, a nurse practitioner who examined “C” for possible sex abuse, an employee with Services for Children and Families who had interviewed “C” on two occasions regarding the alleged abuse, and a therapist who had counseled “C.” Each of those witnesses recounted what “C” had told them regarding the alleged abuse. The state offered no physical or medical evidence corroborating abuse.
The defense presented one witness, a physician, who testified that, in the weeks just before the time of the videotape interview, he had prescribed for defendant an opiate-based pain medication that might have affected the voluntar-iness of defendant’s statements. The jury convicted defendant on all counts, and the court sentenced him under ORS 137.700 to a total consecutive sentence of 290 months.
*517 On appeal, defendant asserts, as he did at trial, that certain portions of the videotaped interview were inadmissible and, consequently, that the trial court erred when it denied his motion in limine to exclude those portions. Specifically, he assigns error to the admission of those portions relating to: (1) defendant’s discussion of the incestuous relationship with his stepdaughter; (2) Moore’s questioning him about whether he had sexually abused his son; and (3) Moore’s telephone conversation discussing the polygraph.
We first address defendant’s argument that the trial court erroneously admitted thosе portions of the video in which Moore questioned him about his incestuous relationship with his stepdaughter. Defendant asserts that that evidence was inadmissible propensity evidence. OEC 404(3).
4
Defendant contends, particularly, that, to the extent the state purported to offer that evidence as proof of his state of mind, the evidence did not satisfy certain foundational requirements for such evidence prescribed in
State v. Johns,
“(1) Does the present charged act require proof of intent?
“(2) Did the prior act require intent?
“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
“(4) Was thе type of prior act the same or similar to the acts involved in the charged crime?
“(5) Were the physical elements of the prior act and the present act similar?” Id., at 555-56. 5
Defendant argues principally, that, given the differences between the alleged abuse of a six-year-old neighbor child and a prolonged relationship with a sexually mature family *518 member, evidence of the incestuous relationship could not satisfy Johns’ third (same class of victim), fourth (same type of act), and fifth (same physical elements) requirements. 6
The state responds at two levels. First, it contends that defendant failed to raise and preserve his present Johns-based objections before the trial court. Second, even if defendant adequately preserved those arguments, the trial court properly admitted the evidence.
Defense counsel’s in limine motion to exclude the videotape excerpts pertaining to the incestuous relationship (and to defendant’s conduct with his son) was made orally:
“There were statements that Mr. Irons made about some prior allegation of sexual contaсt with his daughter, apparently a daughter who lives in California. There was also some allegation apparently of sexual contact of Mr. Irons with his son * * *.
Hi * * *
“What the defense is asking for is that those references be retracted [sic] from the tape when they offer the tape, to be excluded and the officer not testify about the other items mentioned in the interview.
«Hi Hi Hi Hi Hi
“The objection to a prior bad act is not that it didn’t happen but rather that it is so prejudicial and its probative value in this particular case is so minimal that it would, in еffect, deny Mr. Irons a fair trial.
“* * * would be very inflammatory for the jury. I don’t think that any of the five exceptions under 404 for a prior bad act would come in in this case.
“There’s no allegation or no offer by the defense that this was a mistake or * * * by the State that he intended to do this and that there is some type of signature crime here so I *519 think that that evidence would be too prejudicial for the jury to be able to get through. It’s not very probative in this particular case * * *.” (Emphasis added.)
The state responded:
“[I]t’s the State’s position that this prior bad act concerning the daughter, stepdaughter especially, I think it does go to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“The defense — it’s the defendant’s own words was that he was merely just putting lotion on [‘C’]. But, I think showing that he has been — had—sexual contact with other young girls, I think that that goes toward intent, absence of mistake. I think that that is allowed in.”
The trial court, without elaboration, ruled that the evidence was “in.” Neither defense counsel, the prosecution, nor the court referred to Johns or to any of its “similarity” requirements.
In determining whether the foregoing colloquy adequately preserved defendant’s present contentions that the evidence of the incestuous relationship did not meet particular
Johns
requirements, we refer to the pragmatic principles that underlie our preservation jurisprudence. While often described in terms of “issue,” “argument,” and “source” of authority,
State v. Hitz,
“First, the requirement that an issue be presented to the lower tribunal in order for it to be raised on appeal serves to prevеnt error. If the first tribunal is given the opportunity to make a ruling, its ruling may well be correct. Relatedly, it would be a disservice to the economy of the process to require the lower tribunal to conduct further proceedings in order to rectify an error that it was never given the initial opportunity to avoid.
“The second reason is that requiring a party to present its issues at each adjudicative level is essential to a fair process for the other parties and participants. Generally, the opportunity to respond at the appellate level does not cure the denial of that opportunity in trial court and agency *520 proceedings, where all of the factual and much of the legal development of cases must occur.” J. Arlie Bryant, Inc. v. Columbia River Gorge Comm.,132 Or App 565 , 568,889 P2d 383 , rev den321 Or 47 (1995).
See Davis v. O’Brien,
Applying those principles, we conclude that defendant’s objection before the trial court was adequate to preserve the challenges he now makes. Defendant’s objection broadly invoked OEC 404(3), asserted that none of the exceptions to that rule apрlied, and then, more particularly, asserted that the evidence was not relevant to intent because “[t]here’s no allegation * * * by the state that he intended to do this and there is some type of signature crime here.” Although inexact, the reference to “signature crime” in the context of an OEC 404(3) argument about the admissibility of “prior bad acts” as evidence of intent reasonably alerted the prosecutor and the trial court that defendant was disputing whether the evidence satisfied the foundational “similarity” requirements for such еvidence.
See generally Rinkin,
Consideration of defendant’s Johns-based arguments also comports with the second paramount preservation principle: fair opportunity for record development. That is so for two reasons. First, the state, as proponent of the evidence under OEC 404(3), bore the burden of establishing the requisite foundation under
Johns. See Mayfield,
We proceed then tо the merits of the trial court’s admission of those portions of the videotaped interview relating to defendant’s incestuous relationship with his stepdaughter and, particularly, whether the incest-related evidence satisfied the second through fifth
Johns
criteria. As noted, the failure of
any
of those criteria compels exclusion.
See Pratt,
*522
“C” was a six-year-old girl who was unrelated to defendant. The victim of the prior misconduct was a member of defendant’s family, whо was 14 and post-pubescent at the time the incestuous relationship began (“14 going on 21” in defendant’s description) and 28 when it ended. Although both could, most broadly, be described as members of a class of females in defendant’s care,
9
we believe that, given the general nature of the allegations here, the differences in age, degree of physical development and maturity, and relationship to defendant consign “C” and defendant’s stepdaughter to different classes for purposes of the
Johns
analysis.
See State v. Walters,
We further, and alternatively, conclude that the incest-related evidence did not satisfy Johns’ fifth, similar “physical elements” criterion. With respect to the incest, the record discloses only that defendant, at various times over a 14-year period, engaged in intercourse with his stepdaughter. There is no suggestion that that ongoing intra-familial relationship involved applying lotion, bathing together, or *523 any of the other physical elements underlying the present charges. Because the state faded to establish the requisite similarity, the court erred in admitting the incest-related evidence.
The state contends, nonetheless, that any error was harmless. Evidentiary error is harmless if there is little likelihood that the error affected the verdict.
See, e.g., State v. Phillips,
We begin with the sex abuse charges. The gravamen of those charges was that defendant touched “C’s” vagina for purposes of sexual gratifiсation. We fully appreciate the inflammatory potential of incest-related evidence in that context. Nevertheless, given defendant’s admissions, we believe that there is little likelihood that that evidence affected the jury’s verdict. In particular, in addition to hearing “C’s” testimony detailing defendant’s conduct, the jury heard defendant’s videotaped admissions, which he did not dispute, that he had repeatedly put lotion on “C’s” “butt and down in her crotch”; that he had bathed naked with “C” on “four or five occasions”; that he had slept with her in his bеd; and that he had told her that that conduct would be their “secret.” Given those admissions, the evidence was so overwhelming that any reasonable juror would have concluded that the conduct occurred and that defendant acted for a sexual purpose.
Conversely, we conclude that the admission of the evidence was not harmless with respect to the remaining charges. The gravamen of the unlawful penetration charge was that defendant digitally penetrated “C’s” vagina. The gravamen of the criminal mistreatment charge was that defendant caused physical injury to “C” by digitally penetrating her anus or vagina. In contrast to defendant’s admissions of the touching that underlay the sex abuse charges, he explicitly and vehemently maintained that there had been *524 “no insertion.” That denial directly contradicted “C’s” testimony that defendant touched her “inside” her vagina with “his privates and his finger,” and that he hurt her by “moving it around.” Moreover, as the defense emphasized, the prosecution presented no expert medical testimony corroborating intercourse or penetration of the vagina or rectum. Thus, the proof on the rape, unlawful penetration, and criminal mistreatment charges essentially reduced to a “swearing match” between “C” and defendant.
Given those circumstances, and the prejudicial potential of the incest-related evidence, we cannot say that there was “little likelihood” that the error in admitting that evidence affected the jury’s all-important assessment of credibility. Consequently, defendant’s convictions for rape, unlawful sexual penеtration and criminal mistreatment, must be reversed and remanded for a new trial.
We proceed to defendant’s two remaining arguments to assess whether they warrant reversal of the sexual abuse charges. The first of those arguments challenges the trial court’s admission of that portion of the videotape mentioning possible abuse of defendant’s son. The entire videotaped reference to that matter was as follows:
“Q. A couple years ago there was * * * I found a file involving [your son] where I guess, um, it was reported that around his anus there was some redness. Do you remember that?
“A. Yeah.
“Q. Can you tell me about what was involved?
“A. Nothing to do with any kind of sex that I know of.
“Q. Have you ever touched each other?
“A. No.
“Q. Have you ever inserted your [inaudible] into him?
“A. No.
“Q. Would you ever do anything like that?
“A. No.
“Q. Well, I gotta ask, okay?
*525 “A. Okay.”
Defendant contended that that colloquy was inadmissible under OEC 404(3) and reiterates that argument on appeal. The state responds that the colloquy was so indefinite — i.e., it did not establish that defendant had, in fact, engaged in misconduct but, rather, concluded with his denial — that it was not “evidence of other crimes, wrongs, or acts.” The state further argues that the colloquy was so cursory in the context of the entire videotape that its admission was, at worst, harmless error.
Assuming, without deciding, that that portion of the videotape was improperly admitted under OEC 404(3), we conclude that any error was harmless. Given the overwhelming evidence on the sex abuse counts,
see
Finally, defendant challenges the admission of that portion of the videotape in which Moore spoke on the telephone with a third party, discussing the possibility of that person taking a polygraph in an unrelated matter. 10 From Moore’s side of the conversation, оne cannot tell the nature of the other matter. Defendant argues on appeal, as he did to the trial court, that the polygraph discussion was inadmissible as irrelevant, OEC 401, and, alternatively, that it was more prejudicial than probative. OEC 403.
We agree with defendant that, even under the benign standard of relevancy articulated in OEC 401,* 11 the *526 polygraph discussion between Moore and the unidentified third-party caller was not relevant to defendant’s case and, consequently, should have been excluded. Indeed, given its location on the videotape — free-standing, without being intertwined with any substantive discussion — it could easily have been bypassed. Nonetheless, the error was harmless.
State v. Neal,
“The admission of polygraph evidence may constitute reversible error if it is used to undermine, buttress or rehabilitate a witness’s credibility. However, a mistrial is not required where the reference to a polygraph is an isolated statement, made merely in passing, does not disclose the results of the examination, and is not later alluded to by the prosecutor.” Id. at 193.
Here, the polygraph references were even more innocuous than those in. Neal. Unlike the reference in Neal to the defendant being in the “polygraph room,” which could imply that the defendant must have been in that room to take a polygraph, none of the polygraph references here related to defendant. We note, moreover, that the prosecutor here did not subsequently refer, either explicitly or implicitly, to that aspect of the videotape. The error was harmless.
Reversed and remanded for new trial on count I (rape in the first degree); counts II and III (unlawful sexual penetration in the first dеgree); and count VI (criminal mistreatment in the first degree); otherwise affirmed.
Notes
Defendant also assigns error to the trial court’s imposition of Ballot Measure 11, ORS 137.700, sentences. Each of defendant’s challenges has been rejected by the Supreme Court or this court in prior cases.
The original indictment did not include the criminal mistreatment charge. However, the indictment was amended, and defendant was convicted under the amended indictment, which included criminal mistreatment.
Defendant first moved to suppress all of his statements in the interview оn the theory that they were involuntary. The court denied that motion. On appeal, defendant does not challenge that ruling.
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.”
If any of those criteria is not satisfied, the evidence must be excluded.
See, e.g., State v. Pratt,
Dеfendant also argues that the incest-related evidence should have been excluded because its prejudicial impact substantially outweighed its probative value. OEC 403. Given our disposition, we need not address that argument.
But see OEC 404(4); State v.
Dunn,
Noting that “signature crime” refers, most precisely, to
modus operandi
cases in which evidence is proffered to establish identity of perpetrator.
Rinkin,
More than 50 reported Oregon decisions have addressed Johns’ application to “prior bad acts” evidence under OEC 404(3).
See State v. Dibala,
The relevant portion of that conversation is as follows:
“Now, we had a discussion * * * about your case and the district attorney is going to get a hold of the ones in Pasco ‘cuz they’re pretty upset. Now you guys are willing to take a polygraph, right? (pause) Okay, ‘cuz I want to set up one, up for everybody. Okay? I just gotta wait three more weeks so we can have another * * * meeting to find out what they found out in Pasco. Okay? So I was gonna call ya and tell ya that. I’ll let you know what’s going on. Besides that, what else is going on? (pause) Well, within the next three weeks. *** Like I told your stepson, I want those little girls interviewed * * * what happens if he just fell? * * * Get those kids in to interview. It might solve a whole lot of problems. Maybe you won’t have to take a polygraph.”
OEC 401 provides:
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.