State v. Davis

To determine whether to admit evidence of uncharged acts of sexual misconduct in trials for sex crimes, the court must use the LeMay factors test, which considers: “(1) the similarity of the uncharged misconduct; (2) the temporal proximity of the uncharged acts to the charged acts; (3) the frequency of the prior acts; (4) the existence or nonexistence of intervening circumstances; and (5) the need for the evidence in addition to the testimony.” State v. Terry, 309 Or App 459, 465 (2021).

Defendant appealed a conviction for attempted first-degree sexual abuse. Defendant assigned error to the trial court’s determination that the probative value of admitting Defendant’s notes into evidence “outweighed the substantial risk of unfair prejudice that they created.” The State argued that the trial court appropriately admitted the notes because they demonstrated the Defendant’s desire to have nonconsensual sexual contact with strangers. To determine whether to admit evidence of uncharged acts of sexual misconduct in trials for sex crimes, the court must use the LeMay factors test, which considers: “(1) the similarity of the uncharged misconduct; (2) the temporal proximity of the uncharged acts to the charged acts; (3) the frequency of the prior acts; (4) the existence or nonexistence of intervening circumstances; and (5) the need for the evidence in addition to the testimony.” State v. Terry, 309 Or App 459, 465 (2021). The Court reasoned that the notes had probative value, but the inflammatory contents of the notes put the Defendant at risk of unfair prejudice. Accordingly, the Court concluded that the trial court erred in admitting the notes. Reversed and remanded.