State v. Terry

The trial court erred in ruling the evidence of prior bad acts was admissible under OEC 404(3). Although the court had properly admitted some of the evidence under OEC 404(4) and OEC 403, it abused its discretion by admitting the evidence regarding defendant’s admissions in treatment about his prior conduct relating to a previous victim. Reversed and remanded.

Terry appeals a judgment of conviction for two counts of first-degree sexual abuse under ORS 163.427. Before trial, Terry filed a motion in limine to exclude evidence relating to his 1997 conviction, pursuant to a guilty plea, for one count of attempted unlawful sexual penetration. The victim of the charge was a young child of Terry. The court ruled that the evidence was admissible under OEC 404(3) “for absence of mistake and intent,” and also that it was “admissible for propensity” under OEC 404(4) and State v. Williams, 357 Or 1, 346 P3d 455 (2015). The court further held that it thought the evidence was “strong evidence of Terry’s intentions and his actions at the time,” and that that strong probative value was not substantially outweighed by the danger of unfair prejudice. Further, during closing arguments, the prosecutor argued that the jury could infer from the evidence of Terry’s “past” that he committed the charged offenses.

On appeal, Terry assigned error to the trial court’s decision to admit evidence of his uncharged misconduct under OEC 404(3) and (4) and OEC 403. Terry contends that the trial court legally erred when it determined that the evidence was relevant for a nonpropensity purpose, and that it otherwise abused its discretion when determining that the evidence was admissible under OEC 403 for propensity purposes.

The Court of Appeals held that based upon the inflammatory nature of the evidence, there is some likelihood that the jury convicted Terry for the impermissible reason that he posed a threat to babies in a case in which this jury was called upon to decide whether he had committed specific sex offenses against a teenager of the current case. Additionally, the Court held that there is also some likelihood that the jury relied on that evidence in finding that Terry committed the charged conduct based upon how the prosecutor argued to the jury that it could infer from the evidence of Terry’s conduct with his young daughter that Terry became aroused, lost control, and forcibly touched the teenage victim’s breast. There is at least some likelihood that the jury did exactly that. Reversed and Remanded.