State v. Basua

Under OEC 404(2)(a), evidence of a defendant’s character for sexual propriety is admissible if (1) the evidence concerns a “trait of character”; (2) that trait is “pertinent” to the crime charged; (3) the evidence is offered in the proper form under OEC 405, and (4) the evidence was not of specific instances of conduct.

Defendant appeals his conviction for two counts of second-degree sexual abuse, ORS 163.425, assigning error to the trial court’s ruling excluding evidence of Defendant’s character for sexual propriety as allowed by OEC 404(2)(a). Defendant relied on State v. Enakiev, 175 Or App 589, 29 P3d 1160 (2001) which held that “in instances where character is not ‘an essential element of a charge, claim or defense,’ character evidence proffered by the defense under OEC 404(2)(a) is admissible only if: (1) the evidence concerns a ‘trait of character’; (2) that trait is ‘pertinent’ to the crime charged; (3) the evidence is offered in the proper form under OEC 405, and (4) the evidence was not of ‘specific instances of conduct.’” The Court agreed with Defendant, because under Enakiev character evidence of a defendant’s “sexual propriety” qualifies as a character trait for the purposes of 404(2)(a). The evidence here was “pertinent” because it had the tendency to make a fact of consequence (i.e., whether Defendant would have engaged in sexual activity with the victim without her consent) more or less probable than without the evidence. Further, the Court held that exclusion of the character evidence was not harmless error, because inter alia it was relevant to the central issue of the case, and would have provided context for Defendant’s factual theory of the case. Reversed and remanded.