State v. McGee

A trial court abuses its discretion by admitting other-acts evidence when “the relevance of the evidence derive[s] primarily from character inferences” and the evidence carries “the risk of significant prejudicial impact.” State v. McGee, 341 Or App 237, 247 (2025).

Defendant appealed convictions arising from the alleged sexual abuse of his nine-year-old daughter, K, and associated witness tampering. The trial court denied Defendant’s motion to suppress evidence recovered from his cellphone and admitted incest-themed videos and a spreadsheet listing their titles and source websites. The Court held that the phone was lawfully seized because a search incident to arrest may relate to another crime for which the officer has probable cause. State v. Nix, 236 Or App 32, 45, 237 P3d 842 (2010). Because Defendant agreed to unlock the phone, provided his password, and added it to the consent form, the record supported the finding that he did not limit his consent to his cloud storage. See State v. Blair, 361 Or 527, 537-38, 396 P3d 908 (2017).

Turning to OEC 403, the Court explained that the issue was “the extent to which the evidence was offered to establish that [the] defendant’s actions, if they indeed occurred, were done for a sexual purpose[,] * * * versus merely to establish that [the] defendant is a bad person and thus was more likely to engage in the charged conduct.” State v. McGee, 341 Or App 237, 253 (2025) (quoting State v. Martinez, 341 Or App 10, 21-22 (2025)). Although the pornography was relevant to sexual purpose, its relevance was “primarily character-based.” Id. The evidence did not explicitly demonstrate a sexual interest in children, and its titles and source websites were “incredibly inflammatory.” Id. at 254-55. Without a limiting instruction, and given the prosecutor’s emphasis on the evidence, its admission was an abuse of discretion that was not harmless. Reversed and remanded in part; otherwise affirmed.