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State v. Woods

Court of Appeals of Oregon

March 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KENNETH EUGENE WOODS, Defendant-Appellant.

          Submitted October 23, 2015

         Marion County Circuit Court 12C40333

         Mary Mertens James, Judge. (Judgment dated February 4, 2013)

         Courtland Geyer, Judge. (Amended Judgment dated April 16, 2013)

          Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the supplemental brief.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, fled the briefs for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals a judgment convicting him of two counts of frst-degree sexual abuse and one count of second-degree sodomy. Defendant assigns error to the trial court's admission of evidence of his prior uncharged sexual conduct against the same victim. He argues that the trial court erred in admitting the evidence because: (1) the evidence, according to defendant, was offered to show sexual intent or sexual purpose toward the victim and, therefore, the trial court should have, but did not, frst determine whether the record could support a fnding that the charged acts occurred, and also did not provide a limiting instruction to the jury; and (2) the trial court did not balance the probative value of the evidence against the danger of undue prejudice. Defendant also assigns error to the imposition of $85, 611.73 in restitution to the victim, arguing that there was no causal relationship between defendant's criminal activities and the victim's treatment costs.

         Held: The trial court did not err in admitting the evidence of the prior uncharged sexual conduct against the victim. Defendant's frst argument is unpreserved and does not qualify as plain error. Defendant's second argument is also unpreserved. In order for the Court of Appeals to review the trial court's failure to engage in OEC 403 balancing, defendant must have requested the court to engage in that balancing. Defendant neither requested OEC 403 balancing nor argued that due process required such balancing. The court also did not err in imposing the restitution amount. The court's fndings were supported by the record, and those fndings were suffcient, as a matter of law, to support the court's conclusion that there was a causal relationship between defendant's criminal conduct and the victim's treatment costs.

          ORTEGA, P. J.

         Defendant appeals his convictions for two counts first-degree sexual abuse, ORS 163.427, and one count of second-degree sodomy, ORS 163.395. He assigns error to the trial court's admission of evidence of his prior uncharged sexual conduct against the same victim. He also assigns error to the trial court's imposition of restitution. We conclude that the trial court did not err in admitting the prior uncharged sexual conduct evidence, and that the record contains evidence sufficient to uphold the trial court's imposition of restitution. We therefore affirm.[1]

         Because the jury found defendant guilty, we state the relevant background facts in the light most favorable to the state. State v. Nelson. 282 Or.App. 427, 430, 386 P.3d 73 (2016). The victim, M, was 12 years old at the time of the offenses at issue, and his father had sent him to live with his mother and stepfather, defendant, after M began having behavioral issues. M's mother was an alcoholic and M testified that he and defendant often spent time alone together away from M's mother because she sometimes became physically violent when she was drinking heavily. M testified that defendant often gave him alcohol when they were alone together and that, on five or six separate occasions, while the two were playing computer games and drinking alcohol, defendant touched M's genitals. M further testified that, on one occasion, defendant put his mouth on M's penis.

         At trial, the state sought to introduce testimony from M's uncle about an earlier incident in which he observed defendant place his hand down M's pants. Defendant objected to that testimony, as "'prior bad acts evidence' offered for propensity purposes." The state responded that it was relevant and admissible under State v. McKay, 309 Or 305, 308, 787 P.2d 479 (1990), for the nonpropensity purpose of showing defendant's sexual inclination toward the victim. The trial court overruled defendant's objection and allowed M's uncle to testify about the incident. Defendant was convicted on all three counts.

         On appeal, defendant assigns error to the admission of that testimony. First, he argues that to the extent the evidence of the earlier incident was relevant under McKay to show defendant's sexual inclination toward the victim, that evidence could be admitted only to show defendant's "sexual intent or sexual purpose towards the victim."[2] Accordingly, in defendant's view, the court was required to follow the procedural requirements that the Supreme Court established in State v. Leistiko. 352 Or 172, 282 P.3d 857, adh'd to as modified on recons. 352 Or 622, 292 P.3d 522 (2012), for certain evidence of intent. That is, defendant argues that the court first had to determine that the record could support a finding that the charged acts occurred before admitting the evidence, and second, it had ...


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