State v. An Ngoc Le

“Evidence used ‘to demonstrate the sexual predisposition’ of a defendant towards a ‘particular victim’ is admissible ‘to show the sexual inclination of [the] defendant towards the victim.’” State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990). The factors to be considered in determining whether a sentence would be unconstitutionally disproportionate are: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 437 Or 46, 58, 217 P2d 659 (2009).

Defendant appealed a judgment convicting him of two counts of first degree sexual abuse. Defendant assigned error to the trial court's admittance of evidence of Defendant’s prior acts under OEC 403; and second, for violating Article 1, section 16, of the Oregon Constitution when it sentenced him to 75 months. First, “Evidence used ‘to demonstrate the sexual predisposition’ of a defendant towards a ‘particular victim’ is admissible ‘to show the sexual inclination of [the] defendant towards the victim.’” State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990). Second, three factors should be considered in determining whether a sentence would be unconstitutionally disproportionate: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 437 Or 46, 58, 217 P2d 659 (2009).  First, the Court reasoned that, because McKay was on point and has not been overruled, McKay controls. The trial court was correct to apply McKay, including in its application of OEC 403’s balancing test. Second, after analyzing the relevant factors, the Court reasoned that “like Camacho-Garcia and unlike Rodriguez/Buck,” Defendant’s sentence would not shock the moral conscience of all reasonable people, though it might shock the moral conscience of some. Thus, the Court held that the trial court’s admission of evidence was not an error and that Defendant’s sentences did not violate Oregon’s Constitution. AFFIRMED.