Submitted on remand August 30, 2017.
County Circuit Court 201411557; Charles M. Zennaché,
remand from the Oregon Supreme Court, State v. White, 361 Or.
800, 400 P.3d 923 (2017).
G. Lannet, Chief Defender, Criminal Appellate Section, and
Laura A. Frikert, Deputy Public Defender, Offce of Public
Defense Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Patrick M. Ebbett, Assistant Attorney General,
fled the briefs for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
case, which was initially affirmed without opinion, is on
remand from the Supreme Court for reconsideration in light of
its decisions in State v. Mazziotti, 361 Or. 370,
393 P.3d 235 (2017), State v. Zavala, 361 Or. 377,
393 P.3d 230 (2017), and State v. Baughman, 361 Or.
386, 393 P.3d 1132 (2017). On remand, defendant argues that
the trial court erred by admitting evidence of prior,
uncharged acts of sexual abuse against the victim. According
to defendant, in undertaking the balancing required by OEC
403, the trial court failed to appreciate that one of the
theories of relevance on which it relied-that the evidence
could explain the victim's delay in reporting the
abuse-was actually a propensity theory that depended on
inferences about defendant's character. Held:
The trial court did not err in its assessment of the
probative value of the evidence to explain the victim's
delayed reporting. That evidence corroborated the
victim's version of events through a nonpropensity
inference: that the victim had not later fabricated the abuse
but had delayed reporting it because of the circumstances
surrounding the reporting of defendant's previous abuse.
Or.App. 63] LAGESEN, P. J.
case, which we initially affirmed without opinion, State
v. White, 284 Or.App. 673, 393 P.3d 1206 (2017), comes
to us on remand from the Supreme Court for reconsideration in
light of its trilogy of cases involving OEC 403 balancing:
State v. Mazziotti, 361 Or. 370, 393 P.3d 235
(2017); State v. Zavala, 361 Or. 377, 393 P.3d 230
(2017); and State v. Baughman, 361 Or. 386, 393 P.3d
1132 (2017). For the reasons that follow, after considering
those cases, we adhere to our earlier decision to affirm.
was convicted of various sexual offenses involving his
girlfriend's minor daughter. He appealed and asserted
that the trial court erred in admitting evidence of prior,
uncharged acts of sexual abuse that he committed against the
victim when the family was residing in
California. Defendant argued that, in undertaking the
balancing required by OEC 403, the trial court had failed to
appreciate that one or both of the theories of relevance on
which it relied-(1) to show defendant's sexual
predisposition toward the victim and (2) to explain the
victim's delay in reporting the abuse-were actually
propensity theories that depended on inferences
about defendant's character. He relied on this
court's decision in State v. Baughman, 276
Or.App. 754, 772, 369 P.3d 423 (2017), in which we had held
that the trial court's OEC 403 balancing was based, in
part, on an erroneous conclusion about the probative value of
evidence that was "merely propensity by a different
noted above, in this case we initially affirmed without
opinion. A month later, the Supreme Court issued [293 Or.App.
64] its opinion in Baughman, which affirmed our
decision and held that "an argument that the evidence is
admissible to bolster the victim's testimony is no more
than a propensity argument by another name." 361 Or at
406. Defendant then petitioned the Supreme Court for review
in this case, asserting that the trial court erred "by
relying on propensity inferences to state the relevant value
of the evidence-i.e., that the uncharged misconduct
explained the victim's delay in reporting by bolstering
her credibility and that the uncharged misconduct evidence
made it more likely that defendant committed the charged
offenses because of his 'sexual predisposition'
toward the victim [.]" The Supreme Court allowed review,
vacated our decision, and remanded the case to us for
reconsideration in light of its decision in Baughman
and its related decisions in Zavala and
supplemental brief on remand, defendant has now narrowed his
argument, focusing solely on the trial court's assessment
of the probative value of the evidence to explain the
victim's delayed reporting. The premise of that argument
continues to be that "misconduct evidence that explains
a delayed report because it bolsters the credibility
of the complainant is properly considered propensity
evidence. This is so because the relevance of the uncharged
misconduct evidence to explain the delayed report rests on a
propensity inference-that the complaint is credible because
defendant acted consistently with his character to abuse
her." (Emphasis by defendant.) But, defendant argues,
the trial court erroneously treated the theory as a
nonpro-pensity theory, which significantly affected the
court's OEC 403 balancing. See, e.g., Baughman,
361 Or at 410 (explaining that a trial court's error in
giving challenged evidence weight for nonpropensity purposes
when it is not relevant for [293 Or.App. 65] those purposes
may significantly affect the court's decision about
whether to admit the evidence under OEC 403).
is mistaken. Evidence of the other abuse perpetrated is
neither per se propensity evidence nor per
se relevant for a nonpropensity purpose. Determining the
purpose or purposes for which evidence of other abuse may be
relevant is a circumstance-dependent exercise, and the
particular facts about other abuse may make evidence of that
abuse relevant to a nonpropensity purpose when, for example,
the evidence explains a fact of consequence-such ...