State v. McKay

Decision Date22 February 1990
PartiesSTATE of Oregon, Respondent on review, v. Douglas Glenn McKAY, Petitioner on review. DC 87-5533; CA A49217; SC S36538.
CourtOregon Supreme Court

David Brian Williamson, of Williamsons & Hunnicutt, St. Helens, argued the cause and filed the petition for petitioner on review.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.


JONES, Justice.

Defendant is charged with sexual abuse of his stepdaughter. ORS 163.415. Before trial, the state moved to allow testimony by the victim about sexual contacts between her and defendant on several occasions, beginning when she was 10 years old and ending when she was about 13. She was 15 when the incident giving rise to this charge occurred.

The trial court denied the state's motion and excluded the evidence. The state appealed to the Court of Appeals, which reversed the decision of the trial judge. State v. McKay, 97 Or.App. 590, 776 P.2d 1316 (1989). In doing so, the Court of Appeals engaged in a bit of hyperbole in interpreting our decision in State v. Zybach, 308 Or. 96, 775 P.2d 318 (1989), asserting that if the state is able to show that the proffered evidence can be helpful to prove its case beyond a reasonable doubt, then it is relevant and admissible insofar as OEC 404(3) is concerned.

The Court of Appeals reached the right result, but for the wrong reason. State v. Zybach does not deserve the transformation written for it by the Court of Appeals.

In Zybach, we said:

"In this case, although the evidence was not admissible to show that defendant had a propensity to have sexual intercourse or similar contact with minor girls, it was relevant to show why the child had not reported the original sexual assault. This is a type of uncharged misconduct evidence admissible under OEC 404(3), even though not included in the specific illustrations. * * *

"The repeated association between the pursuer and the pursued was directly relevant to demonstrate why, having failed to complain about the initial sex act, the victim reported it when defendant did not desist from pestering her. Without the evidence of the ongoing relationship between the two, a jury deprived of this evidence would hear that in June 1985 the victim allegedly had intercourse with defendant but did not report it until March of the following year. The victim was properly allowed to testify to facts from which a jury could infer reasons for the delayed reporting." 308 Or at 99-100.

As should be plain from the quoted language, we did not open the evidentiary door for all evidence of prior sexual misconduct that can be helpful in proving the prosecution's case.

OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The listed exceptions are illustrations, not limitations. See State v. Pratt, 309 Or. 205, 210, 785 P.2d 350 (1990).

Simply stated, the proffered evidence here was admissible to demonstrate...

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31 cases
  • State v. Berg
    • United States
    • Oregon Court of Appeals
    • October 29, 2008 relevant for a noncharacter purpose—that is, to show the sexual inclination of the defendant towards that victim. State v. McKay, 309 Or. 305, 308, 787 P.2d 479 (1990). Thus, evidence of the 1997 allegations was admissible to show defendant's sexual predisposition toward H and A. Because......
  • State v. Baughman
    • United States
    • Oregon Supreme Court
    • April 27, 2017 relevant for a fifth nonpropensity purpose—to prove that defendant had a sexual predisposition for the victim. See State v. McKay, 309 Or. 305, 308, 787 P.2d 479 (1990) (holding prior acts evidence involving same victim admissible to "demonstrate the sexual predisposition this defendant ......
  • Delgado-Juarez v. Cain
    • United States
    • Oregon Court of Appeals
    • October 7, 2020 consider evidence relating to each alleged victim as relevant to the charges regarding the other. See, e.g., State v. McKay , 309 Or. 305, 307-08, 787 P.2d 479 (1990) (evidence of uncharged sexual contacts between the defendant and the victim admissible under OEC 404(3) to demonstrate th......
  • People v. Donoho
    • United States
    • Illinois Supreme Court
    • April 3, 2003
    ...115 N.M. 514, 518, 853 P.2d 1270, 1274 (App.1992); Hawkins v. State, 782 P.2d 139, 141 (Okla.Crim.App.1989); State v. McKay, 309 Or. 305, 308, 787 P.2d 479, 480 (1990); Commonwealth v. Knowles, 431 Pa.Super. 574, 578, 637 A.2d 331, 333 (1994)), to cases in which the victim is a minor (Turne......
  • Request a trial to view additional results
1 books & journal articles
  • The whole truth: restoring reality to children's narrative in long-term incest cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 4, June 1997
    • June 22, 1997
    ...(265) See Pounds v. United States, 529 A.2d 791, 795 (D.C. 1987). (266) Id. (267) Id. (268) 776 P.2d 1316 (Or. Ct. App. 1989), aff'd, 787 P.2d 479 (Or. (269) Id. (270) Id. (271) State v. G.S., 650 A.2d 819, 824 (N.J. Super. Ct. App. Div. 1994). For additional cases where courts have admitte......

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