State v. McIntyre

Evidence offered under OEC 404(3) of defendant's "other crimes, wrongs, or acts" must satisfy a five factor test to demonstrate the "other acts" are necessarily similar to the crime charged in order to be precluded from exclusion under OEC 404(4).

The State appealed from an order excluding evidence it believed was admissible under OEC 404(3). Defendant was charged with promoting prostitution. The evidence in question was two rap music videos that featured Defendant making statements related to his involvement in the prostitution trade. The trial court excluded the evidence under OEC 403. The State argued that under OEC 404(4), the trial court was precluded from excluding evidence of Defendant's "other crimes, wrongs, or acts" if the evidence demonstrated his intent to promote prostitution pursuant to OEC 404(3). Moreover, Defendant's statements in the video acknowledged his involvement in the prostitution trade and should be admitted under OEC 404(3) as evidence of "other acts" demonstrating his intent to promote prostitution. The Court applied the Johns five factor test to determine if the evidence of "other acts" is necessarily similar to the issue of promoting prostitution. The Court held that the evidence did not meet the third, fourth, and fifth requirements of the test and the State failed to demonstrate how the evidence of Defendant's involvement in the prostitution trade proved his intent to promote prostitution. Affirmed.