Dеfendant appeals a judgment of conviction of two counts of first-degree unlawful sexual penetration, ORS 163.411, and two counts of first-degree sexual abuse, ORS 163.427. He raises nine assignments of error. Eight involve challenges to nonunanimous jury verdicts, and we rеject those challenges without further discussion.
State v. Cobb,
The indictment in this case аlleged that defendant committed sexual offenses involving one victim, A, in late 2001 in Clatsop County. Before trial, defendant moved to exclude evidence of misconduct not charged in that indictment, including his earlier sexual abuse of the victim and her same-aged cousin, R, in Lane County. At the hearing on defendant’s motion in limine, defendant argued that the uncharged misconduct evidence was not admissible to show intent, because his “defense is and has always been that this didn’t happen, that he didn’t do it, if it did happen, it wasn’t him. And so the question of intent is really not at issue in this case.” Defendant also contended that the evidence was not admissible, because its probative value was outweighed by the risk of unfair prejudice. The state responded that the evidеnce was relevant to show intent and absence of mistake or accident.
The trial court denied defendant’s motion. In a letter opinion, the court applied the test from
State v. Johns,
*660 At trial, thе state offered evidence — including the victim’s and R’s testimony and testimony about and DVDs of the victim’s and R’s more contemporaneous reports — that defendant had touched the victim and R. The victim testified that, while in Clatsop County, defendant had touchеd her private parts (the charged acts); she further testified that he also had done so in Lane County and that she had seen him touch R’s private parts (the uncharged misconduct). A physician, Stefanelli, testified concerning physical injuries to the viсtim and Stefanelli’s diagnosis that the victim had been sexually abused.
Defendant elicited testimony that young children are highly suggestible; that the victim’s initial identification of her abuser as “Doug” was ambiguous, because Doug is not only defendant’s name but also the name of one of the victim’s relatives; and that the victim’s father had been accused of sexually abusing her in 1999 and had had contact with her during the period before Stefanelli’s examination of the victim in December 2001. Stefanelli testified that she could nоt, on the basis of physical findings, identify the person who had abused the victim.
In closing, defendant questioned the basis for Stefanelli’s diagnosis of sexual abuse and argued that the victim’s mother was motivated to have the victim accuse defendant and that the mother had previously made an allegation of sexual abuse by the victim’s father. Defendant contended that the victim’s identification of him was unreliable for various reasons, including that, when the victim reported that “Doug did it,” she did not say defendant’s full name, and “we know that this child has had two Dougs involved in her life.” Defendant also emphasized that, although defendant had been alone with the victim and R when babysitting them, there had been “a lot of other people that are in and out of this house at that point in time.”
The jury returned guilty verdicts, and the trial court entered judgment accordingly. Defendant appeals and now *661 renews his arguments concerning uncharged misconduct evidence.
We begin with the pertinent rule of 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.”
We review the relevance of uncharged misconduct evidence for errors of law.
State v. Blanscet,
Here, defendant contends that the trial court erred by admitting the uncharged misconduct evidence because it was irrelevant for any admissible purpose. He contends that his intent was not a contested fact, because the defense theory was “that the crime never oсcurred at all, or it was committed by someone else” — not that, if he touched the victim, his conduct was innocent or accidental. Because the uncharged misconduct evidence was not relevant to prove intent, he argues, its only rеmaining use was as propensity evidence, which is inadmissible. The state responds that, when a defendant pleads not guilty, the plea is a denial of every material allegation, and the state must prove every element beyond a reasоnable doubt.
We conclude that, because one of defendant’s theories was that someone else was the perpetrator of any abuse of the victim, the uncharged misconduct evidence was relevant to a contestеd fact, namely, the accuracy of the victim’s identification of her abuser. Defendant’s theory about the identity of the perpetrator distinguishes this case from the cases on which he relies:
State v. Phillips,
*662
In
Baughman,
the defendant was charged with sexual offenses against his five-year-old daughter; the charged acts allegedly occurred on one particular evening, after the defendant told his daughter a story about “bloody bears.” The uncharged misconduct evidence was testimony that, 12 years beforе, the defendant had sexually abused his ex-wife’s six-year-old daughter after telling her a story involving “bloody bears.”
“Here, in contrast to the ‘signature crime’ precedents, the issue was not whether defendant, as opposed to anyone else, had committed the crime. Rather, it was whether a crime had occurred at all. [His daughter] asserted that defendant had abused her. Defendant’s sole defense was that the episode had never occurred. Defendant did not contend that, even if [his daughter] had been abused, someone else must have been the perpetrator. Consequently, ‘identity’ was not at issue, and the challenged evidence was not relevant for that purpose.”
Id. at 722 (emphasis added).
We further explained that analysis in
Phillips.
There, the defendant was charged with robbery and kidnapping of the victim, Majors, in April 2002. The uncharged misconduct evidence related to an earlier theft from Majors in October 2001. At trial, the defendant relied on an alibi defense to the charged robbery and kidnapping.
“The defendant in {Baughman], by staking his defense оn the contention that no crime occurred, did not put at issue the question whether he was more or less likely than some other person to have committed it. The two issues— whether a crime occurred at all, and whether the defendant was more likely than some other person to have committed it — were logically unrelated; if, as the defendant maintained, no crime occurred, then the fact that he was more likely than some other person to have committed it was of nо relevance. Baughman,164 Or App at 722 . The same cannot be said here. In asserting an alibi defense in this case, where the actual occurrence of the crime is acknowledged, defendant in essence asserted that some other person was mоre likely than him to have committed it. His defense put at issue the question that the defendant in Baughman never raised: Who did it? By contending that he did not do it, defendant implicitly contested all evidence that could prove that he did do it — including evidence that he had a plan to do it. Thus, in introducing evidence of the 2001 theft, the state was attempting to establish a contested fact.”
Phillips,
Here, likewise, defendant did not simply argue that the charged acts never occurred. He raised the question of the perpetrator’s identity, the question that was not rаised in
Baughman.
By arguing that the victim was abused by someone else, defendant contested the accuracy of the victim’s identification of him as the perpetrator of the charged acts. Strictly speaking, such identification is different from “identity,” as that term is used in OEC 404(3).
See Johns,
*664
The uncharged misconduct evidence was relevant to bolster the victim’s credibility on that issue.
State v. Shreeve,
Defendant’s other arguments regаrding the admission of the uncharged misconduct evidence are, first, that the trial court failed to comply with OEC 403 by weighing the probative value of the evidence against the danger of unfair prejudice and, second, that such balancing is required by due рrocess under the Fifth and Fourteenth Amendments to the United States Constitution. We have previously rejected those arguments. Under OEC 404(4),
3
in a criminal case, a trial court cannot engage in OEC 403 balancing unless such balancing is required by the state or federаl constitution,
State v. Wyant,
Affirmed.
Notes
The jury was instructed to consider the evidence
“for two limited purposes: first, as to whether defendant acted with knowledge as to the alleged criminal conduct in this case, or, second, as to the identity of *660 the person who committed the allegations in this case, i.e., whether the defendant or someone else committed the allegеd criminal conduct. Specifically you are not to draw the inference that the evidence of the other conduct makes defendant guilty of the charges in this case.”
Defendant also cites
State v. Sicks,
OEC 404(4) provides:
“In criminal aсtions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) ORS 40.180,40.185,40.190,40.195,40.200,40.205,40.210 and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160;
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”