Submitted March 29, 2016
County Circuit Court 130733183; Alicia A. Fuchs, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erica Herb, Deputy Public Defender, Offce of Public Defense
Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and David B. Thompson, Assistant Attorney
General, fled the brief for respondent.
Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi,
appeals a judgment of conviction for rape, sodomy, and
incest. He assigns error to the trial court's admission,
over his OEC 403 objection, of evidence of two prior
uncharged acts of sexual violence against the victim, which
the court apparently considered relevant to whether the
victim had consented to sexual activity. He argues that the
court abused its discretion in admitting the evidence,
because the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice.
record is insufficient for the Court of Appeals to discern
the specific purpose for which the trial court admitted the
challenged evidence, and, therefore, to determine whether the
trial court abused its discretion. Accordingly, the case must
be remanded to the trial court for it to explain how it
considers the evidence to be probative.
Or. 146] DEHOOG, J.
appeals a judgment of conviction for one count each of
first-degree rape, ORS 163.375, first-degree sodomy, ORS
163.405, and incest, ORS 163.525. We write only to address
defendant's first and second assignments of error, in
which defendant asserts that the trial court erred in
admitting, over his OEC 403 objection, evidence of two prior
uncharged acts of sexual violence against the victim.
Defendant contends that the trial court abused its discretion
in admitting that evidence, because its probative value was
substantially outweighed by the danger of unfair prejudice
that the evidence presented. As we explain below, we are
unable to discern the basis on which the trial court admitted
the challenged evidence and, therefore, cannot evaluate
whether it was error to admit that evidence over
defendant's OEC 403 objection. Accordingly, we vacate
defendant's convictions and remand for the trial court to
provide an explanation.
state prosecuted defendant for raping, sodomizing, sexually
abusing, and engaging in incest with his disabled, adult
daughter. Each of the rape, sodomy, and sexual abuse charges
alleged that defendant had subjected the victim to
"forcible compulsion, " an element common to those
offenses as charged. See ORS 163.375(1)(a)
(first-degree rape); ORS 163.405(1)(a) (first-degree
sodomy); ORS 163.427(1)(a)(B) (first-degree sexual
abuse). The state's case relied upon a
description of events that the victim had given others
shortly after calling 9-1-1 to report the alleged incident.
As relevant to the issues on appeal, the victim [288 Or. 147]
told a sexual assault examiner and an investigating officer
that defendant had grabbed her, pushed her onto his bed,
pulled down her pants, and put his penis into her vagina. She
described defendant as having put his weight on her belly,
held back her arm, and choked her; she said that she had
tried to fight defendant off, but that she had not been
strong enough. Consistent with that description, the victim
subsequently testified before a grand jury that defendant had
forced her to have sexual intercourse with him against her
will. The victim further told the grand jury that, during the
incident, she had cried and asked defendant to stop, but that
he had continued to force himself on her.
trial, however, the victim's description of events had
changed. The victim testified at trial that she and defendant
had engaged in consensual sexual intercourse while she was
under the influence of alcohol and various medications.
Having anticipated that the victim might change her
testimony,  the state moved in limine for a
ruling allowing the state to introduce evidence that, in its
view, would refute the victim's characterization of
defendant's conduct as consensual, rather than forcible.
Specifically, the state sought to introduce evidence that, on
two earlier occasions, defendant had subjected the victim to
sexual violence. On the first occasion, which occurred
approximately 13 years before the charged events, defendant
"rammed" a 40-ounce bottle inside the victim's
vagina so forcefully that she began to hemorrhage; on the
second occasion, at around the same time, defendant burned
the victim with a cigarette "on top of" her vagina.
Among other things, the state argued, that evidence was
relevant and admissible under OEC 404(3) to prove that the
victim had not consented to defendant's conduct during
the charged incident.
Or. 148] Notably, the state did not clearly or consistently
explain how that evidence of defendant's earlier
conduct tended to show that he had, in the charged incident,
used or threatened force against the victim, or, as both
parties characterize that element, that the sexual conduct
had not been consensual. That is, even though the ultimate focus
of the state's argument appears to have been on the issue
of consent, the state's reasoning as to how the prior
abuse was probative of that issue was, at best, vague.
Broadly speaking, however, the state's position at trial
was that, because of the victim's relationship and sexual
history with defendant, her belief that the charged events
had been "consensual" was neither credible nor
pretrial hearing on the state's motion, the victim
testified regarding her relationship with defendant and the
specific prior bad acts. During that offer of proof, the
victim explained that her father had "been in and out of
[her] life" for her entire life of 37 years. She
acknowledged that she suffered memory problems due to a
stroke, that she had struggled with alcohol and opioid
addiction for much of her life, and that she often confused
the past and the present. The victim further testified that
defendant had physically assaulted her in the past, and said
that she had reported those assaults. She also testified
that, over the preceding 15 years, she and defendant had
engaged in sexual intercourse an unknown number of times-but
"less than 20"-most often while both defendant and
she had been intoxicated. According to the victim, defendant
considered her to be "his girlfriend" and did not
believe that she was his biological daughter; he therefore
considered it "okay to have sexual things going
Or. 149] That sexual contact had, however, occasionally been
physically violent. Two of the violent occasions were those
that the state sought to present at trial. The victim
described the incident involving a 40-ounce bottle as
"[VICTIM]: *** [T]here was a sexual [assault] with *** a
" [PROSECUTOR]: And what * * * did you report to the
police that he did with ...