State v. White

“Evidence of other, uncharged abuse can be probative of the reasons for delayed reporting of the charged conduct: ‘The repeated association between the pursuer and the pursued may be directly relevant to demonstrate why [a] victim failed to complain about the initial sex act once the pursuer stopped pestering her. [A] victim may be properly allowed to testify to facts from which a jury could infer reasons for the delayed reporting.’” State v. Zybach, 308 Or. 96, 100, 775 P.2d 318 (1989).

On remand from the Supreme Court, Defendant appealed the trial court’s admittance of evidence of prior, uncharged acts of sexual abuse that he committed against the victim. Defendant argued that under the balancing requirements of 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. “Evidence of other, uncharged abuse can be probative of the reasons for delayed reporting of the charged conduct: ‘The repeated association between the pursuer and the pursued may be directly relevant to demonstrate why [a] victim failed to complain about the initial sex act once the pursuer stopped pestering her. [A] victim may be properly allowed to testify to facts from which a jury could infer reasons for the delayed reporting.’” State v. Zybach, 308 Or. 96, 100, 775 P.2d 318 (1989). The Court rejected Defendant’s contention that the trial court erred in its assessment of the probative value of the evidence to explain the victim’s delayed reporting and held that the 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 reporting of Defendant’s previous abuse. Affirmed.