State v. Stephens

Evidence of uncharged incidents of sexual conduct between the victim and the defendant are admissible under OEC 404(4).

Defendant, an elementary school teacher, appealed convictions of sexual crimes against a student, CM. The abuse occurred when CM was in the fourth, fifth, and sixth grades but he did not report the abuse until he was seventeen years old. Defendant asserted two errors on appeal: First, that the prosecutor’s statement in closing arguments and the questions that were asked of the witness, Mahler, concerning her choice to speak with her attorney and to remain silent were comments on her exercise of attorney client privilege and should be inadmissible under OEC 513(1). Secondly, the trial court erred in not accepting Defendant’s motion in limine in which she wanted to exclude CM’s testimony about incidents of sexual contact with Defendant that Defendant was not being charged with at trial. In considering the first argument, the Court of Appeals held that any privilege that Mahler had was waived under OEC 511, which is waiver by voluntary disclosure. The Court also held that Defendant’s second argument was invalid. The Court stated that in cases like the present one, evidence of sexual contact that the defendant is not charged with is relevant to explain the existence of the delay in the reporting of the sexual abuse charges. Also, since the uncharged conduct and the charged crimes all involve the same person, the uncharged conduct is relevant because it demonstrates the sexual predisposition the defendant has towards the victim. Finally the Court noted that the evidence is additionally admissible under OEC 404(4) because the evidence is relevant for a non-character purpose. Affirmed.