State v. Deshaw

Evidence of uncharged acts can be admitted to establish a timeline of events in appropriate circumstances. State v. Grubb, 279 Or App 458, 460, 468, 379 P3d 715, rev den, 360 Or 423 (2016). Admittance of “highly inflammatory” uncharged-misconduct evidence is not harmless if it affected the verdict. State v. Wright, 283 Or App 160, 178, 387 P3d 405 (2015).

Defendant appealed “four counts of second-degree sexual abuse, based on four acts of oral sex with a sixteen-year-old” male while the two shared a cell.  Defendant assigned error to the trial court’s admittance of evidence related to an uncharged act of anal sex.  On appeal, Defendant argued that this evidence was not relevant and, because the evidence was “highly inflammatory,” the error produced by its admittance was not harmless.  In response, the state argued that the anal sex incident was a “temporal anchor” for the victim and therefore relevant.  Evidence of uncharged acts can be admitted to establish a timeline of events in appropriate circumstances.  State v. Grubb, 279 Or App 458, 460, 468, 379 P3d 715, rev den, 360 Or 423 (2016).  Admittance of “highly inflammatory” uncharged-misconduct evidence is not harmless if it affected the verdict.  State v. Wright, 283 Or App 160, 178, 387 P3d 405 (2015).  The Court, although it agreed that the state’s temporal anchor theory was “theoretically sound,” held that the state’s argument failed because the victim did not use the anal sex incident to establish a timeline of events.  Further, the Court was unable to say that the admission of the anal sex evidence had “little likelihood of affecting the verdict” given the nature of the uncharged act and “the vivid detail with which it was described.”  Reversed and remanded.