State v. De Leon Say

In State v. Skillicorn, the Supreme Court clarified that sexual-predisposition evidence is not propensity evidence. State v. Skillicorn, 367 Or 464 (2021).

Defendant appealed a conviction of four counts of first-degree sexual abuse and two counts of first-degree unlawful sexual penetration. Defendant assigned error to the trial court’s admission of evidence of uncharged acts of sexual abuse of the victim by Defendant. On appeal, Defendant argued that the trial court erroneously allowed sexual-predisposition evidence under State v. McKay, 309 Or 305 (1990) because McKay evidence is propensity evidence and the court should have applied an OEC 403 balancing test before admission. In State v. Skillicorn, the Supreme Court clarified that sexual-predisposition evidence is not propensity evidence. State v. Skillicorn, 367 Or 464 (2021). The Court reasoned that, regardless of whether the evidence is characterized as propensity or nonpropensity, the State provided this evidence to demonstrate Defendant’s sexual predisposition to the victim, which was authorized by McKay. Defendant also assigned error to the trial court’s denial of his motion for judgment of acquittal on one of the counts of unlawful sexual penetration. The Court reviewed, in the light most favorable to the State, whether the evidence would allow a reasonable factfinder to find the essential elements of a crime beyond a reasonable doubt. State v. Cervantes, 319 Or 121 (1994). The Court reasoned that, because the evidence would allow a reasonable factfinder to find that Defendant digitally penetrated the victim as alleged in Count 5, the trial court did not abuse its discretion in weighing the probative value of the evidence against the danger of unfair prejudice against Defendant. Affirmed.