State v. Moles

435 P.3d 782, 295 Or. App. 606
CourtCourt of Appeals of Oregon
DecidedJanuary 9, 2019
DocketA161140
StatusPublished
Cited by14 cases

This text of 435 P.3d 782 (State v. Moles) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moles, 435 P.3d 782, 295 Or. App. 606 (Or. Ct. App. 2019).

Opinion

DeVORE, J.

*607Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse committed against the victim, a child under the age of 14. He assigns error to the trial court's denial of his motion in limine to exclude evidence that he had also abused the victim's mother when she was a child. According to defendant, the trial court erred in its assessment of the probative value of that evidence of uncharged misconduct and, consequently, the court erroneously concluded under OEC 403 that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. As we will explain, the trial court conducted OEC 403 balancing with regard to each of the specific purposes for which the state offered the evidence, and it acted within its discretion to admit the evidence for one of those purposes: that is, to show defendant's sexual purpose in committing the charged acts. Because the evidence was properly admitted for that purpose, any error that the trial court may have committed with regard to admitting the evidence for other purposes was harmless on this record. Accordingly, we affirm.

I. BACKGROUND

Defendant was charged with committing various crimes against D, the minor granddaughter of his ex-wife, when D was roughly between the ages of 6 and 10. Six of the counts alleged first-degree sexual abuse, based on allegations that defendant had, on separate occasions and at different locations, touched D's genitals, breasts, or buttocks, or caused D to touch defendant's genitals. Defendant was also charged with one count of first-degree sodomy involving D.

Before trial, defendant filed a motion in limine to exclude any evidence that, approximately 20 years earlier, defendant had sexually *785abused D's mother when she was between the ages of 10 and 15. D's mother made that dis-closure to police when reporting defendant's abuse of D. Defendant anticipated that the state would offer evidence that mother "claims that a couple of times each week, every week, [defendant] would digitally penetrate her and make *608her perform oral sex on him. She said she did not know why this stopped when she was 15."

In addition, there was evidence that defendant had made incriminating statements to an investigating officer to the effect that any misconduct with D's mother had occurred when defendant had been drinking, but that he had not had a drink for the past 20 years. That evidence was the subject of the same motion and an additional motion to suppress, based in part on the fact that the officer had failed to record the statements; the court denied that additional motion, and it is not at issue on appeal.

In his motion in limine , defendant framed his arguments about the statements of D's mother in light of the Supreme Court's then-recent decision in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), which addressed the admission of evidence of prior bad acts in a child sexual abuse case. Defendant acknowledged that Williams held that "other act evidence is admissible to prove propensity or character in child sexual abuse cases," but argued that the evidence was still subject to balancing under OEC 403. Defendant took the position, in light of Williams , that evidence of his abuse of D's mother was "not relevant. However, should the court find that the evidence is relevant that relevancy is limited to the prior acts amounting to propensity evidence and is not admissible at trial under OEC 403."

In response, the state argued that the evidence was admissible on multiple theories. First, the prosecutor explained that it was relevant on a propensity theory, which was similar to that described in Williams , that defendant had a sexual interest in family members who are children, from which the jury could infer that he acted with a sexual purpose toward D. Second, based on statements defendant made to the investigating officer, the prosecutor anticipated that one of the defenses at trial might be "that if there was any type of conduct, it was misconstrued, it was accidental type of touching," so that "whether or not the defendant acted with a sexual purpose is going to be a central issue in this case." Therefore, the prosecutor argued, the evidence was admissible "to show the defendant's *609intent, absence of mistake under the doctrine of chances theory."1 And, third, the prosecutor argued that the evidence was relevant to "explain people's conduct." Specifically, the evidence explained the fact that, at various times over the years, D's mother had asked D whether she had been abused by defendant. According to the prosecutor, without the evidence that D's mother had been abused herself by defendant, the jury would wonder why she was asking about the abuse and whether she had coached D or implanted memories. The prosecutor argued, the probative value of the evidence on those various theories was not substantially outweighed by the danger of unfair prejudice to defendant.

The trial court largely agreed with the state, and it issued a detailed letter opinion to explain its reasoning with regard to each of the three theories of relevance. The court began its analysis by addressing the state's propensity argument based on Williams . The court concluded that the evidence was relevant under Williams to demonstrate that defendant acted with a sexual purpose: "[A] jury could reasonably infer that defendant's prior abuse of [D's mother] indicates defendant has a sexual interest in children and that defendant acted from that interest when he touched the child victim in this case. Such evidence, which has a tendency to make it more probable that defendant had a sexual purpose when he committed the charged act, is logically relevant under OEC 401."

*786The court then turned to the issue of OEC 403 balancing. In conducting its balancing, the court considered the five factors set forth in United States v. LeMay , 260 F.3d 1018 (9th Cir. 2001), which had been cited by the Supreme Court in Williams . Those factors were the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the acts charged, the frequency of the prior acts, the presence or lack of intervening circumstances, and the need for the evidence in light of other testimony at trial.

*610Based on its analysis of those five factors, the trial court concluded that the probative value of the evidence to show defendant's sexual purpose outweighed the danger of unfair prejudice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Estrada-Vargas
342 Or. App. 374 (Court of Appeals of Oregon, 2025)
State v. Martinez
335 Or. App. 643 (Court of Appeals of Oregon, 2024)
State v. Moles
325 Or. App. 825 (Court of Appeals of Oregon, 2023)
State v. Champagne
Court of Appeals of Oregon, 2023
State v. Powers
523 P.3d 1112 (Court of Appeals of Oregon, 2023)
State v. Davis
511 P.3d 10 (Court of Appeals of Oregon, 2022)
State v. Turner
499 P.3d 888 (Court of Appeals of Oregon, 2021)
State v. Terry
482 P.3d 105 (Court of Appeals of Oregon, 2021)
State v. Rockett
463 P.3d 1 (Court of Appeals of Oregon, 2020)
State v. Boauod
459 P.3d 903 (Court of Appeals of Oregon, 2020)
State v. Cave
445 P.3d 364 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
435 P.3d 782, 295 Or. App. 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moles-orctapp-2019.