State v. Nolen

Under OEC 404(3), “the use of other-acts evidence ‘to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion,’” is barred.

Defendant was tried and convicted for first-degree sexual abuse and first-degree sodomy of his granddaughter, K, a minor child. On appeal, Defendant argued the trial court erred when it allowed admission of prior bad acts into evidence under OEC 404(3) and OEC 403. The State maintained the disputed evidence was non-propensity evidence and was being admitted to establish sexual purpose as a required element of first-degree sexual abuse. OEC 404(3) bars “the use of other-acts evidence ‘to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion.’” State v. Martinez, 315 Or App 48, 52-54 (2021). The Court reasoned that the State’s theory of admissibility required the fact-finder to use propensity-based reasoning, rendering the evidence inadmissible. The Court held that the trial court erred when it admitted the other acts evidence as non-propensity evidence under OEC 404(3). Reversed and remanded.