Dеfendant appeals his convictions for two counts of third-degree sexual abuse, ORS 163.415; 1 one count of furnishing alcohol to a minor, ORS 471.410(2); and one count of contributing to the sexual delinquency of a minor. ORS 163.435. Those convictions arose from several incidents in which defendant had sexual relations with, and furnished alcohol to, the victim. In two assignments of error, defendant challenges the trial court’s admission of the victim’s testimony that she was a virgin when she first had sex with defendant and her testimony that defendant refused to wear а condom during their sexual encounters. Defendant asserts that the evidence was inadmissible under OEC 403 because its prejudicial effect substantially outweighed its probative value. 2 We reverse and remand.
According to the state’s evidence, the conduct giving rise to defendant’s convictions occurred during the weekend of August 20 through August 22, 2004. At that time, defendant was 35 years old, and the victim was 17. The victim’s eighteenth birthday was August 29, 2004. On August 20, defendant, the victim, and two other people had dinner together. After dinner, defendant bought alcoholic beverages, аnd defendant, the victim, and the victim’s friend, G, spent the evening in the victim’s residence drinking them. The victim testified that she and defendant later went into her bedroom and had sexual intercourse. G, who was sleeping in the living room, testified that she overheard them.
The victim testifiеd that she and defendant had sexual intercourse again on the morning of August 21. Later *426 that day, defendant bought more alcoholic beverages and, that evening, defendant, the victim, and G once again drank the beverages in the victim’s residence. G testified thаt she overheard defendant and the victim having sex in the victim’s room later that evening. G left the residence on the morning of August 22. The victim testified that she and defendant stayed at her residence and that they had sexual intercourse twice that day. Defendant left the victim’s residence that night. The prosecutor separately asked the victim, with respect to four of the five sexual encounters, whether defendant refused her request that he wear a condom. In each instance, the victim answered affirmаtively that defendant refused to wear a condom.
Defendant was indicted on five counts of sexual abuse in the third degree, based on the five acts of sexual intercourse to which the victim testified. At trial, defendant’s theory of the case was that he and the victim had a consensual sexual relationship and that they did not have sexual relations until she turned 18. Defendant also argued that, if he had sexual relations with the victim during the alleged weekend, it was because defendant did not know that the victim was only 17 years old at the time.
Defendant objected on the ground of relevance to the victim’s testimony that she was a virgin before she first had intercourse with him. Defendant did not object to the evidence based on OEC 403. The trial court overruled defendant’s relevanсe objection. As noted, the victim subsequently also testified that defendant had refused to wear a condom during their sexual encounters. Defendant objected to that testimony on the ground that it was irrelevant under OEC 401 and, alternatively, that its prejudicial effеct substantially outweighed its probative value under OEC 403. The trial court overruled defendant’s objections, explaining as follows:
“Frankly, that — she has a right to explain the circumstances surrounding the matter, and I don’t believe a weighing was necessary regarding the рrejudice vis-á-vis the probative value. It explains * * * her memory. It makes it more clear to the jury what she remembers what occurred there.
*427 “All very, I think, to the State’s view, important stuff. I don’t think that — the issue is whether she had intercourse or not, but the — whether the condom was used or not really doesn’t add a whole lot to that. It just adds to the circumstances surrounding, so I’m going to — that’s the reason I overruled your objections.”
The jury convicted defendant of two of the five counts charging him with third-degree sexual abuse, specifically, of the counts involving the acts that G testified she overheard on the evenings of August 20 and 21, and it found him not guilty of the three remaining third-degree sexual abuse charges. 3 The jury also convicted defendant on the two remaining counts, furnishing alcohol to a minor and cоntributing to the sexual delinquency of a minor.
On appeal, defendant does not renew his basic relevance objections to the challenged evidence under OEC 401. Instead, he argues only that the evidence was inadmissible under OEC 403. As noted, defendant did not аssert before the trial court that the victim’s testimony that she was a virgin before she first had sex with defendant should be excluded under OEC 403. It follows that defendant’s first assignment of error was not preserved.
See State v. Carrillo,
Defendant did, however, preserve his second assignment of error by objecting to the victim’s testimony that he refused to wear a condom on the ground that it was inadmissible under OEC 403. Defendant observes thаt the trial court did not evaluate the extent to which any probative value that the evidence had outweighed the danger of unfair prejudice. He argues that, under
State v. Mayfield,
In Mayfield, the Supreme Court held:
“In making this decision under OEC 403, the judge should engage in four steps. 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 evidеnce and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed thе 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 аll the proponent’s evidence, to exclude all the proponent’s evidence or to admit only part of the evidence.”
We will affirm a judgment of conviction notwithstanding the erroneous admission of evidence if there is little likelihood that the admission of the evidence affected the verdict.
State v. Davis,
In addition, in determining the possible influence of the error on the verdict, we consider the importance of the errоneously admitted evidence to a party’s theory of the case.
Id.
at 34 (“[E]xcluded evidence goes directly to the heart of defendant’s factual theory of the case.”);
State v. Perkins,
The state reasons thus: A primary issue in the case was whether defendant had sexual relations with the victim before she turned 18. The state’s theory at trial was that the victim’s encounters with defendant occurred during the weekend of August 20 through 22, before her eighteеnth birthday. The state proffered the challenged evidence to bolster the victim’s credibility by showing that she accurately recalled the details and circumstances of her encounters with defendant that weekend. Nevertheless, the state posits that the jury apparently doubted the victim’s testimony, because it convicted defendant only of the counts involving acts that G’s testimony corroborated, and it found defendant not guilty of the charges involving acts to which only the victim testified. It follows, the state reаsons, that the evidence did not help the state’s case and that the error in admitting it without complying with OEC 403 was harmless.
*430
The difficulty with the state’s argument lies in the very nature of the assessment that OEC 403 requires. The evidence that defendant refused to wear a condom had little to do with either party’s theory of the case. The evidence was, at best, marginally relevant to the state’s proffered purpose of showing that the sexual encounters occurred before the victim’s eighteenth birthday. That is so becausе, although the victim may have accurately recalled that defendant refused to wear a condom during their sexual encounters, that recollection appears to have no bearing on when those encounters occurred. Ordinarily, thе fact that erroneously admitted evidence does not strongly relate to a central factual issue in the case might support the conclusion that the error was harmless.
Roller,
However, evidence challenged as unfairly prejudicial under OEC 403 requires a somewhat different analysis. Notwithstanding that the evidence at issue here had minimal relevance to either party’s theory of the case, that evidence nevertheless could have persuaded the jury that defendant was an irresponsible adult male who deserved to be punished for his conduct with a much younger female. That impression could have been reinforced on each of the four occasions that the prosecutor asked the victim whether defendant had refused to wеar a condom during their sexual encounters and she answered affirmatively.
The possibility that the jury may have had some doubt about the victim’s credibility does not mean that the evidence had no tendency to influence its decision to convict defendаnt of two of the five charged offenses. The jury could have been unsympathetic to the victim and still have believed that defendant was a menace to society who should be incarcerated because of his penchant for having unprotected sex with young females. Because a potential effect of the challenged evidence involved precisely the type of risk that compliance with the requirements of OEC 403 was designed to ameliorate, we cannot say there is little likelihood that the erroneous admission of the evidence affected the jury’s verdict.
Reversed and remanded.
Notes
ORS 163.415 provides:
“(1) A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:
“(a) The victim does not consent to the sexual contact; or
“(b) The victim is incapablе of consent by reason of being under 18 years of age.
“(2) Sexual abuse in the third degree is a Class A misdemeanor.”
OEC 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusiоn of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
The verdict forms that the jury returned distinguished among the various counts of third-degree sexual abuse based on the dates and times of day when the acts allegedly occurred. Counts 1 and 3, the counts on which guilty verdicts were returned, involved acts occurring on the “[ejvening of August 20, 2004” and the “[ejvening of August 21, 2004,” respectively.