Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427. He assigns error to the trial courts decision to admit evidence of uncharged misconduct under OEC 404(3) and (4) and OEC 403. He contends that the trial court legally erred when it determined that the evidence was relevant for a non-propensity purpose, and also that it otherwise abused its discretion when determining that the evidence was admissible under OEC 403 for propensity purposes. We reverse and remand.
We review for legal error the trial courts determination that evidence of uncharged misconduct qualifies for admission under either OEC 404(3) or OEC 404(4). State v. Baughman, 361 Or. 386, 406, 393 P.3d 1132 (2017); State v. Fockler, 308 Or. App 765, 766, 480 P.3d 960 (2021). We review for abuse of discretion a trial courts determination under OEC 403 that the probative value of proffered evidence is not substantially outweighed by the danger of unfair prejudice. State v. Gibson, 299 Or. App 582, 588-89, 451 P.3d 259 (2019), rev. den., 366 Or. 691, 466 P.3d 961 (2020).
The state charged, and the jury ultimately found, that defendant committed two acts of first-degree sexual abuse on two separate occasions by forcibly touching the breast of T, a 15-year-old friend of defendants daughter. Defendant denied doing so.
Before trial, defendant moved in limine to exclude evidence relating to his 1997 conviction, pursuant to a guilty plea, for one count of attempted unlawful sexual penetration. The victim of the charge was a 10-year-old relative of defendant. At the hearing on the motion, the state identified four specific items of evidence pertaining to the 1997 conviction that it sought to introduce:
• Evidence that defendant, speaking about the conduct that led to the 1997 conviction, told police in 1996: “Yes, its possible I touched [the victim] there. Yes, its possible my penis touched her. Yes, its possible my semen could be on her. However, I was asleep and confused.”
• Evidence of the fact of defendants 1997 conviction.
• Evidence that defendant told a witness in the 1997 case that defendant “would have a hard time turning down a 10, 11, 12 or 13-year-old. Have you seen the way some of them look lately?”
• Evidence that, while in sex offender treatment following the 1997 conviction, defendant told his treatment provider that, when changing his daughters diaper, he became aroused and could not resist touching her vaginal area.
The court first concluded that the evidence was admissible under OEC 404(3) “for absence of mistake and intent,” and also that it was “admissible for propensity” under OEC 404(4) and State v. Williams, 357 Or. 1, 346 P.3d 455 (2015). It noted that it thought the evidence was “strong evidence of [defendants] intentions and his actions at the time,” and that that strong probative value was not substantially outweighed by the danger of unfair prejudice.
Consistent with the trial courts ruling, the evidence was admitted at trial. In closing argument, the prosecutor argued to the jury that it could infer from the evidence of defendants “past” that he committed the charged offenses. Walking through each item of the challenged evidence, the prosecutor told the jury that it could “consider” it. The prosecutor argued that defendants statement about 10-, 11-, 12-, or 13-year-old girls “indicated hes sexually interested in teenage girls” and noted that the victim was a teenage girl. The prosecutor also argued that the jury could infer from defendants admissions about touching the vagina of his infant daughter that defendant “lost control when he saw a teenage girl in his house and fondled her” the same way he would “lose control” when changing his daughters diaper.
The jury found defendant guilty and he appealed.
On appeal, defendant assigns error to the trial courts admission of each item of evidence listed above. He argues that the court legally erred when it concluded that each item of evidence was admissible under OEC 404(3) to show intent and absence of mistake. As we understand his brief, in defendants view, that error, at a minimum, requires a conditional remand to the trial court under Baughman so that the court can redo its OEC 403 assessment without relying on its erroneous determination that the evidence was probative of intent or absence of mistake under OEC 404(3). See Baughman, 361 Or. at 411, 393 P.3d 1132 (remanding for further proceedings where trial court erred in determining that uncharged misconduct evidence was admissible for nonpropensity purposes and error influenced its assessment of the evidence under OEC 403). Defendant also argues, however, that, even allowing for the fact that the evidence is admissible for propensity purposes under OEC 404(4) and Williams, it would be an abuse of discretion under OEC 403 to conclude that the evidence is admissible when that exercise of OEC 403 discretion is conducted in accordance with the factors identified in United States v. LeMay, 260 F.3d 1018 (9th Cir 2001), cert. den., 534 U.S. 1166, 122 S.Ct. 1181, 152 L.Ed.2d 124 (2002), which the Supreme Court cited with approval in Williams. Williams, 357 Or. at 20, 346 P.3d 455.
In response, the state argues that the evidence demonstrates that defendant has a “sexual interest in children,” and was admissible for that purpose. See id. at 23, 346 P.3d 455 (ruling that evidence that the defendant possessed a childs underwear was admissible to demonstrate his sexual interest in children). The state asserts that it does not matter for purposes of balancing whether that is an OEC 404(3) nonpropensity theory of relevance or an OEC 404(4) propensity theory of relevance. That is because, in its view, the court understood that it was admitting the evidence to show that defendant had a sexual interest in children and, then, correctly determined that the probative value of each item of evidence was not substantially outweighed by the danger of unfair prejudice.
As an initial matter, in light of the Supreme Courts recent decision in State v. Skillicorn, 367 Or. 464, 479 P.3d 254 (2021), the trial court erred in concluding that the evidence was admissible under OEC 404(3) to prove intent or lack of mistake. In Skillicorn, the court explained that, “[i]f the proponents theory of relevance requires the factfinder to employ propensity reasoning, then the trial court cannot admit the evidence based on that theory under OEC 404(3).” Id. at 476, 479 P.3d 254. A theory of relevance employs propensity reasoning if it invites the factfinder to infer “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.” Id.
Regardless of the name placed on it, that was the theory for which the state offered and the trial court admitted the evidence at issue in this case. The state argued that the evidence “goes to his propensity, right? Hes someone whos previously expressed a sexual attraction to kids. Therefore, hes more likely, and hes sexually attracted to this child,” something that shows that defendant had the intent to touch the victim sexually and that it was not, in fact, an accident, “because the fact [that] its happened before suggests that it wasnt an accident this time.” And, as we understand the courts ruling, that was its basis for admitting the evidence. Because that theory employs propensity reasoning—“the fact [that] its happened before suggests that it wasnt an accident this time”—the evidence was not separately admissible under OEC 404(3), and the trial court erred to the extent that it admitted the evidence under that provision.
1
The remaining question is whether the trial courts ruling can be sustained under OEC 404(4) and Williams. As defendant acknowledges, OEC 404(4) and Williams allowed for the evidence to be admitted under a propensity theory of relevance, subject to OEC 403 balancing. Defendant contends that, when that OEC 403 balancing is conducted taking into account the LeMay factors approved in Williams, it leads to one conclusion: that it was an abuse of discretion to admit the evidence in whole or in part. The state argues otherwise. We conclude that the court abused its discretion in admitting the evidence regarding defendants two-year-old daughter, but acted within its discretion in admitting the other challenged items of evidence.
In LeMay, the Ninth Circuit identified factors to guide a courts exercise of discretion in determining whether to admit evidence of uncharged sexual misconduct in a prosecution for sex crimes. Recognizing the inflammatory nature of such evidence and the due-process-jeopardizing danger of unfair prejudice it presents, the court identified a series of nonexclusive factors for a court to take into account when exercising discretion to admit such evidence. LeMay, 260 F.3d at 1024, 1028. Those factors include (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. Id. at 1028.
Taking those factors into account, we cannot say that the trial court abused its discretion in admitting the evidence of defendants prior conviction, his statement about the circumstances underlying that conviction, and his statement admitting his attraction to 10- to 13-year-old girls. The state had a strong need for the evidence, the victim of the charges was close in age to the category of girls that defendant admitted an attraction to, and not too much older than the 10-year-old victim of the prior charges. The evidence, although potentially inflammatory, could be addressed through a limiting instruction, something the trial court offered, although it appears that no party requested that one be delivered. Although other LeMay factors point in a different direction, such that the court would have been within its discretion to exclude the evidence as well, it was within its discretion to admit it. See State v. Moles, 295 Or. App 606, 620, 435 P.3d 782, rev. den., 365 Or. 194, 451 P.3d 242 (2019), revd on other grounds, 366 Or. 549, 466 P.3d 61 (2020) (addressing the LeMay factors and concluding that “the trial courts decision to admit the evidence to show sexual purpose—even if different from how this court might ultimately have resolved the balancing question in the first instance—represents a permissible exercise of the courts discretion under the totality of the circumstances in this case”).
We reach a different conclusion with respect to the evidence pertaining to defendants admissions in therapy about becoming aroused when changing his daughters diaper and touching her vaginal area. That conduct is not highly probative because it bears little similarity to the charged conduct; there is a vast difference between a child in diapers and a middle-teenager. The evidence is highly inflammatory, giving rise to the risk of the jury convicting not because defendant engaged in the charged conduct but, instead, because he posed a risk to babies—something he was not on trial for in this case. See State v. Lipka, 289 Or. App 829, 832, 413 P.3d 993, rev. den., 362 Or. 860, 418 P.3d 763 (2018) (“Evidence is unfairly prejudicial when it has an undue tendency to suggest a decision on an improper basis, commonly, although not always, an emotional one, and when the preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to establish a fact of consequence.” (Internal quotation marks omitted.)). The states need for this specific item of evidence is not strong, particularly in view of the other propensity evidence that the trial court permissibly determined was admissible and that involved circumstances with greater similarity to the charged offenses.
The error was not harmless. Evidentiary error is harmless only when there is little likelihood it affected the jurys verdict. Skillicorn, 367 Or. at 494, 479 P.3d 254. Here, given the inflammatory nature of the evidence, there is some likelihood that the jury convicted defendant for the impermissible reason that he posed a threat to babies in a case in which it was called upon to decide whether he had committed specific sex offenses against a teenager. There is also some likelihood that the jury relied on that evidence in finding that defendant committed the charged conduct. As noted, the prosecutor argued to the jury that it could infer from the evidence of defendants conduct with his young daughter that defendant became aroused, lost control, and forcibly touched the teenage victims breast. There is at least some likelihood that the jury did exactly that.
In sum, the trial court erred in ruling the evidence admissible under OEC 404(3). Although it properly admitted some of the evidence under OEC 404(4) and OEC 403, it abused its discretion by admitting the evidence regarding defendants admissions in treatment about his conduct while changing his daughters diaper. That error was not harmless and requires reversal.
Reversed and remanded.
FOOTNOTES
1
. We note that, even absent the Supreme Courts decision in Skillicorn, the states articulated theory of admissibility appears to conflict with State v. Tena, 362 Or. 514, 524-25, 412 P.3d 175 (2018), and State v. Kelley, 293 Or. App 90, 98, 426 P.3d 226 (2018).
LAGESEN, P. J.