Oregon Supreme Ct - Mar. 19, 2015

by: Abassos and Margaret Laffan • March 19, 2015 • no comments

OEC 404(4) Expressly Supersedes OEC 404(3): Other Bad Acts Are Admissible to Prove Propensity in a Child Sex Case

Evidence of other bad acts are admissible in trials for child sexual abuse to prove propensity so long as they are (1) relevant and (2) the probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Stated another way, OEC 404(4) supersedes 404(3), but not 403. The court takes care to note that the result might be different in a case involving other crimes:

"If this were a case in which defendant had been charged with crimes other than child sexual abuse, we might be persuaded that due process incorporates that historical practice [of banning propensity evidence] and therefore not only requires the application of OEC 403, but also precludes the admission of "other acts" evidence to prove propensity." p. 17

Here, the defendant was charged with sexual abuse of a five year old child. The state introduced evidence that the defendant’s landlord had found two pairs of children’s underwear in the defendant’s apartment after he moved out. The defendant maintained throughout trial that he did not commit the charged acts, though he may have inadvertently touched the child as he had carried, wrestled or napped with her. The Court finds that the propensity evidence in this case was relevant to show an element of the crime - "that defendant had acted with a sexual desire that was aroused or gratified by contact with children." This is true despite the fact that defendant was denying that the acts occurred and was not disputing that someone who did the alleged acts would likely have sexual purpose. Says the court:

If the jury inferred from the underwear evidence that defendant had a sexual interest in children generally, then the jury could take defendant's interest into consideration in deciding whether defendant had acted on that interest and with that purpose on the charged occasion. Defendant is correct that, if the jury found that defendant had committed the charged acts, those acts themselves are additional, and perhaps more persuasive, evidence of defendant's sexual purpose. However, as noted, that stronger evidence does not make the underwear evidence logically irrelevant; the evidence meets the minimal requirements of OEC 401. . . Defendant does not contend that the trial court erred in its OEC 403 analysis, and we therefore do not consider that issue" p. 23

State v. Williams, 357 Or. 1 (2015).