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State v. Gonzalez-Sanchez

Court of Appeals of Oregon

February 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
VICTOR FERNANDO GONZALEZ-SANCHEZ, Defendant-Appellant.

          Argued and submitted February 26, 2015

         Washington County Circuit Court C120191CR; A153708 Thomas W. Kohl, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

         Case Summary: Defendant appeals a judgment convicting him of one count of first-degree sodomy and two counts of first-degree sexual abuse based on incidents in Washington County involving one victim. Defendant assigns error to the trial court's denial of his pretrial motion to exclude evidence of incidents of sexual contact between defendant and the victim in Multnomah County. He argues that the trial court erred in two ways in conducting OEC 403 balancing: (1) by failing to make an adequate record of its balancing, and (2) by concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Held: The trial court's ruling is sufficient to allow us to evaluate whether, as defendant argues, the court abused its discretion in concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The evidence was relevant for the purpose of proving defendant's sexual predisposition toward the victim, and it had cognizable probative value on that theory of relevance. Moreover, on the record before it, the trial court could decide that the evidence would have cognizable probative value on a delayed reporting theory of relevance. Under these particular circumstances, it was not an abuse of discretion for the court to decide that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice from it.

         Affirmed.

          DUNCAN, P. J.

         In this criminal case, defendant appeals the trial court's judgment convicting him of one count of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427, based on incidents in Washington County involving one victim. On appeal, defendant assigns error to the trial court's denial of his pretrial motion to exclude evidence of incidents of sexual contact between defendant and the victim in Multnomah County. For the reasons explained below, we conclude that the trial court did not err in denying defendant's motion. Defendant also assigns error to the sentence that the trial court imposed on the sodomy count. We reject that argument without written discussion. Accordingly, we affirm.

         Defendant was charged by indictment with one count of first-degree sodomy and one count of first-degree sexual abuse, based on an allegation that he had oral sex with the victim, who was 11 years old, at the victim's residence in Washington County. Defendant was also charged with one count of first-degree sexual abuse based on an allegation that he kissed the victim at a transit center in Washington County.

         Prior to trial, defendant filed a motion to exclude evidence of other incidents of sexual contact between defendant and the victim. At the hearing on the motion, the state informed the trial court that it planned to present evidence of three incidents in Multnomah County, two involving oral sex and one involving anal sex. The Multnomah County incidents occurred a few weeks after the initial Washington County incident at the victim's residence. The victim did not report defendant's conduct until after the Multnomah County incidents.[1]

         The state argued that evidence of the Multnomah County incidents was relevant for two reasons. First, the state argued that, under State v. McKay, 309 Or 305, 787 P.2d 479 (1990), the evidence was relevant "to show this defendant's sexual interest in the victim." The state asserted that the evidence was not impermissible "propensity evidence" because "McKay specifically says [this type of evidence] isn't relevant to show someone's propensity to commit a crime, but rather to show his sexual interest in this particular victim."

         Second, the state argued that, under State v. Zybach, 308 Or 96, 775 P.2d 318 (1989), the evidence was relevant "to show a reason why the victim had not reported the original sexual assault." The state asserted that evidence that defendant continued to abuse the victim after the initial incident "helps explain part of the reason why [the victim] didn't go tell his mom or the police [.]" That is, the state asserted that, under Zybach, the evidence was "not admissible for propensity, but it's admissible to show why [the victim] hadn't reported [defendant's conduct]."

         In response to the state's arguments, defendant contended that, even if the evidence was relevant under McKay to show his sexual interest in the victim and under Zybach to explain the victim's delayed reporting, OEC 403 provided "another specific reason to keep [the evidence] out." OEC 403 provides, in part, that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" Defendant argued that the evidence of the ...


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