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 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) supercedes 404(3), but not 403. At least, this is the rule in child sex cases:

"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 first degree 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 inadvertentely touched the child as he had carried, wrestled or napped with her. The Oregon Supreme Court ultimately determines 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." State v. Williams, 357 Or. 1 (2015)