State v. Moles

Opinion

620 September 2, 2026 No. 824

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent,

v.

DAVID ALAN MOLES, Defendant-Appellant. Marion County Circuit Court 15CR09283; A175727

On remand from the Oregon Supreme Court, State v. Davis, 372 Or 618, 553 P3d 1017 (2024).

Daniel J. Wren, Judge. Submitted on remand January 14, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Oregon Public Defense Commission, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General.

Before Shorr, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge.* LAGESEN, C. J. Affirmed.

______________

* Lagesen, Chief Judge vice Pagán, Judge * O’Connor, Judge vice Mooney, Senior Judge

Nonprecedential Memo Op: 352 Or App 620 (2026) 621

LAGESEN, C. J. This case is before us on remand from the Oregon Supreme Court, which vacated and remanded our prior decision , State v. Moles, 325 Or App 825 (2023) (nonprecedential memorandum opinion), vac’d and remanded, 372 Or 618, 558 P3d 848 (2024) (Moles II), for reconsideration in light of State v. Davis, 372 Or 618, 553 P3d 1017 (2024). State v. Moles, 372 Or 812, 558 P3d 847 (2024) (Moles III). Davis, published after our decision in Moles II, provided guidance on how to determine whether other acts propensity evidence admissible under OEC 404(4) should be admitted under OEC 403. On remand, the issue is whether, in light of Davis, we correctly concluded that the trial court acted within its discretion when determining that evidence of defendant’s prior acts of sexual abuse was admissible under OEC 403. Applying Davis and our most recent case law on the issue, we reach the same conclusion as we did previously. Accordingly, we affirm.

Our previous decision set forth the facts, so we recount only those essential to understanding our reasoning. This is the third time we have considered defendant’s case. In his first trial, in 2015, defendant was charged with six counts of first-degree sexual abuse and one count of first-degree sodomy against D, his granddaughter. The trial court denied defendant’s motion in limine to exclude evidence that he had sexually abused D’s mother, defendant’s stepdaughter, when she was a minor. Defendant was convicted of all the sexual abuse charges but was acquitted of the sodomy charge. On appeal, defendant argued that the trial court erred by denying his motion in limine. We affirmed, concluding that the trial court did not err in determining that the evidence was relevant to defendant’s “sexual purpose,” and that it did not abuse its discretion in its OEC 403 balancing. State v. Moles, 295 Or App 606, 435 P3d 782, rev den, 365 Or 194 (2019), rev’d, 366 Or 549, 466 P3d 61 (2020) (Moles I). The Supreme Court initially denied review but ultimately reversed and remanded for a new trial based upon nonunanimous jury verdicts . State v. Moles, 366 Or 549, 466 P3d 61 (2020).

On remand, defendant was tried on six counts of first-degree sexual abuse against D. Before trial, defendant moved in limine to exclude the same evidence as in the 622 State v. Moles

first trial: that when D’s mother was a child, defendant had touched her for sexual arousal, penetrated her vagina with his finger, and engaged in oral sex. In the motion, defendant acknowledged that the trial court’s admission of that evidence in the first trial was affirmed on appeal. However, because defendant had been acquitted of the sodomy charge against D, he also argued specifically that evidence relating to “prior uncharged penetration and oral sex” involving D’s mother would be “more prejudicial and less probative” than it had been in 2015.

The trial court again ruled that the evidence was admissible under OEC 404(3) to show intent, but it deviated from its previous rulings in weighing the probative value of the evidence against the danger of unfair prejudice. It concluded that evidence related to sodomy of D’s mother would only be inflammatory and therefore excluded it for the purpose of showing intent. The court then considered the evidence under OEC 404(4) as propensity evidence relevant to defendant’s sexual purpose, and it conducted OEC 403 balancing. The court maintained its decision to exclude evidence of sodomy but ruled that other evidence pertaining to D’s mother was admissible.

D’s mother testified at trial, and the court gave a limiting instruction just before her testimony, explaining that:

“First, the jury may only consider this evidence if the jury first finds that the State has met its burden of proof beyond a reasonable doubt that [defendant] touched [D’s] sexually intimate part or that [defendant] caused [D] to touch [defendant ’s] sexually intimate part. Only if the jury finds that the State has met its burden of proof that the touching occurred, may the jury consider the prior alleged facts for the limited purpose of the evidence’s bearing, if any, on whether or not [defendant] acted intentionally or with a sexual purpose.

“To ensure a fair trial, it is very important that each of you follow the instructions I give you. If you cannot follow my instructions that this may be considered only for a limited circumstance and for a limited purpose, please let me know, because it is vital to a fair proceeding that you only consider this evidence in the limited context that I have described.

“Does anybody have a question about that or concerns?”

Nonprecedential Memo Op: 352 Or App 620 (2026) 623

D also testified. Defendant was convicted of three counts of first-degree sexual abuse involving D. He again appealed, arguing that the court erred in denying his motion to exclude evidence of prior acts of sexual abuse against D’s mother. The state conceded that the court erred in admitting the evidence under OEC 404(3), which we accepted,1 but argued that reversal was not required because the court also ruled that the evidence was admissible under OEC 404(4). Moles II, 325 Or App at 828-29. We affirmed, concluding that because the trial court did not err when it separately analyzed the evidence as character evidence under OEC 404(4) and engaged in OEC 403 balancing, its decision complied “with the prescribed framework for determining the admissibility of character evidence under OEC 404(4) as explained in [State v. Williams, 357 Or 1, 20, 346 P3d 455 (2015)], and [State v. Travis, 320 Or App 460, 466-67, 513 P3d 614 (2022)].” Id. at 829-30.

Defendant petitioned the Supreme Court for review, and upon issuing its decision in Davis, the Supreme Court vacated and remanded our decision in Moles II with instructions to reconsider in light of Davis. Moles III, 372 Or at 812. The parties submitted supplemental briefing regarding the Davis analysis. Upon consideration of that briefing and Davis, we adhere to our prior disposition.

“[A] trial court assessing the admissibility of other-acts evidence in a criminal case should determine,” (1) “whether the evidence is relevant [under OEC 401],” (2) “whether the state’s theory of relevance involves character reasoning,” and (3) “whether the probative value is substantially outweighed by the risk of unfair prejudice [under OEC 403] in light of the character or noncharacter nature of the evidence.” State v. Herring, 375 Or 350, 366, 592 P3d 472 (2026). The parties do not dispute that the evidence is logically relevant and that it relies upon propensity reasoning for that relevance.2 See State v. Reed, 348 Or App 116, 121, 589 P3d 1122 (2026) (“In recent years, we have consistently 1 We again accept the state’s concession as well taken. 2 We agree that the evidence’s relevance in this case relies upon propensity reasoning: Defendant’s prior sexual abuse of D’s mother demonstrates that he has a sexual interest in children, and, therefore, if the jury concludes that he engaged in the acts that he is accused of with D, the jury may consider his sexual 624 State v. Moles

held that evidence of a defendant’s sexual interest in children relies upon propensity reasoning for its relevance.”). Thus, the question is whether the trial court abused its discretion in its OEC 403 determination. Id. (we review a trial court’s OEC 403 determination for abuse of discretion).

To make that determination, in accordance with Davis, first, we parse the other acts evidence of defendant’s abuse of D’s mother into constituent parts to determine the degree of character present in the state’s theory of relevancy . Davis, 372 Or at 637-39; State v. Martinez, 335 Or App 643, 654-57, 559 P3d 907 (2024), rev den, 373 Or 713 (2025) (Roberto Martinez) (examining the Davis framework). Second, we consider the probative value of each part of the evidence to determine whether its relevance relies upon character reasoning expressly or by implication. Davis, 372 Or at 637-39; Roberto Martinez, 335 Or App at 654-55.

When parsed, the evidence has two constituent parts: (1) the abusive conduct and (2) the context of the abuse. See Roberto Martinez, 335 Or App at 657. In this case, the evidence of abusive conduct consists of D’s mother’s testimony that when she was between approximately 10 and 15 years old, defendant would place her on his lap, touch her sexually—excluding any evidence of sodomy or penetration —, and rub her against himself. The evidence of the context of the abuse consists of D’s mother’s testimony that she was defendant’s stepdaughter, was under defendant’s care at the time of the abuse, and that the abuse occurred at their home.

Next, we assess the role character reasoning plays in the relevance of the constituent parts of the evidence. Here, the abusive conduct itself is “highly probative of defendant’s sexual interest in young girls generally, thus making it more likely that he acted with sexual purpose” if he engaged in the charged conduct. State v. Champagne, 341 Or App 343, 356, 573 P3d 412 (2025), rev den, 374 Or 698 (2026). Although its relevance relies upon propensity reasoning, that evidence is probative of defendant’s sexual purpose, which is specifically relevant to an element of the charged crimes. See ORS

interest in determining whether he undertook those acts for a sexual purpose as opposed to some other, innocuous purpose.

Nonprecedential Memo Op: 352 Or App 620 (2026) 625

163.427(1)(a) (first-degree sexual abuse requires “sexual contact”); ORS 163.305(5) (defining “sexual contact” as the touching of another person’s sexual or intimate parts “for the purpose of arousing or gratifying the sexual desire of either party”). As for the contextual evidence, as we have recognized in similar cases, “the probative value of the contextual evidence arises primarily out of its relevance to prove an ultimate and impermissible propensity inference, that defendant sexually abuses children who live in his home.” State v. Powers, 341 Or App 728, 738, 574 P3d 975 (2025).

Third, under Davis, “we are to determine whether the evidence, taken as a whole, primarily or substantially derives its relevance from character-based propensity reasoning .” Champagne, 341 Or App at 357. Despite the propensity nature of the evidence, we have concluded that, in the specific context of child sexual abuse cases, the admissibility of prior bad acts evidence largely depends upon “the extent to which the evidence was offered to establish that defendant ’s actions, if proven to have occurred, were done for a sexual purpose versus merely to establish that defendant is a bad person and thus was more likely to engage in the charged conduct.” State v. Estrada-Vargas, 342 Or App 374, 381, 576 P3d 985 (2025), rev den, 374 Or 698 (2026) (internal quotation marks omitted); Roberto Martinez, 335 Or App at 655 n 8 (propensity evidence is inadmissible to prove the charged act).3 Here, the trial court admitted the evidence for the purpose of establishing defendant’s sexual purpose, not to establish that defendant committed the charged conduct or to suggest to the jury that it should infer guilt from defendant ’s bad character.

Finally, we consider whether the court took steps to mitigate the unfair prejudice inherent in such evidence. Davis, 372 Or at 641. Here, the trial court did so when it excluded the especially inflammatory testimony alleging

3 The state argues that our decision in Roberto Martinez was plainly wrong in its conclusion that propensity evidence cannot be used in a child sexual abuse case to prove that the defendant committed the charged conduct, and that we should overrule it. 335 Or App at 655 n 8. We need not decide that issue because the trial court in this case admitted the evidence to show defendant’s sexual purpose , not that he committed the charged conduct, and it provided a jury instruction to that effect.

626 State v. Moles

acts of sodomy and provided a limiting instruction to the jury before D’s mother’s testimony. In that limiting instruction , the court explained to the jury that it could only consider the evidence if it first found beyond a reasonable doubt that defendant touched D as charged, and only if it found “that the State has met its burden of proof that the touching occurred, may the jury consider the prior alleged facts for the limited purpose of the evidence’s bearing, if any, on whether or not [defendant] acted intentionally or with a sexual purpose.” Further, the evidence of defendant’s abuse of D’s mother was no more inflammatory than the charged acts. See Estrada-Vargas, 342 Or App at 381 (comparing inflammatory nature of other acts evidence to charged conduct).

In sum, although the evidence risked unfair prejudice , it had probative value as to whether defendant acted with a sexual purpose if he subjected D to the charged acts, the trial court limited its admission to that purpose, and the court took significant steps to mitigate that prejudice. Accordingly, we conclude that the trial court did not abuse its discretion in its OEC 403 balancing by allowing D’s mother to testify.

Affirmed.