State v. Moles

• Citation: 325 Or.App. 825
• Decision Date: 10 May 2023
• Docket Number: A175727
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. DAVID ALAN MOLES, Defendant-Appellant.
• Court: Oregon Court of Appeals

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325 Or.App. 825

STATE OF OREGON, Plaintiff-Respondent, v. DAVID ALAN MOLES, Defendant-Appellant.

A175727

Court of Appeals of Oregon

May 10, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted December 7, 2022.

Marion County Circuit Court 15CR09283; Daniel J. Wren, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán Judge.

PAGAN, J.

For the second time, we address defendant's appeal from a judgment of conviction. In our first opinion, we affirmed defendant's conviction for six counts of first-degree sexual abuse. State v. Moles, 295 Or.App. 606, 607 435 P.3d 782 (Moles I), rev den, 365 Or. 194 (2019) rev allowed in part, rev'd in part and rem'd, 366 Or. 549 (2020) (Moles II). The Oregon Supreme Court reversed and remanded because defendant's convictions were based on nonunanimous verdicts. On remand, a second jury trial occurred, and a jury found defendant guilty of three counts of first-degree sexual abuse. Defendant raises a single assignment of error. He claims that the trial court erred when it denied his motion in limine, in which he sought to exclude evidence that he had also abused the victim's mother when she was a minor. We affirm.

The relevant facts are primarily procedural. On remand from the Supreme Court, defendant was charged by third amended indictment with six counts of first-degree sexual abuse.^[1] Before trial, defendant filed a motion in limine. Defendant sought to exclude evidence that, when the victim's mother was a minor, defendant had touched the victim's mother for sexual arousal, that he had used his finger to penetrate her vagina, and that he had engaged in oral sex with the victim's mother.

In his motion, defendant acknowledged that, during his first trial, he moved to exclude the same evidence, and the trial court ruled in 2015 that the evidence was admissible. That ruling was affirmed on appeal. Moles I, 295 Or.App. at 607. Before his second trial, defendant pointed out that he had been acquitted on a charge of sodomy against the victim, and, therefore, evidence relating to allegations of "prior uncharged penetration and oral sex" involving the victim's mother would be "more prejudicial and less probative than it was in 2015."

At the hearing, the trial court ruled that the evidence of uncharged misconduct was admissible under OEC 404(3) to show intent,^[2] but, when weighing the probative value of the evidence against the danger of unfair prejudice, the trial court indicated that it was "going to make some deviations from what has been previously found." The trial court determined that "there can be no more discussion about the sodomy that happened, because that was found not guilty at trial. So therefore, I believe that the evidence that could be presented by [the victim's mother] regarding sodomy would only tend to be inflammatory."

Next, the trial court turned to the question of the admissibility of the evidence under "the Williams analysis." In State v. Williams, 357 Or. 1, 20, 346 P.3d 455 (2015), the Supreme Court explained that, in child sex abuse cases, other acts evidence may be admissible under OEC 404(4) depending on subsequent OEC 403 balancing.^[3] Here, the trial court determined that the evidence was relevant under OEC 401,^[4] admissible under Williams, and, after applying the factors discussed in United States v. LeMay, 260 F.3d 1018 (9th Cir 2001), cert den, 534 U.S. 1166 (2002), the trial court excluded evidence of sodomy but ruled that testimony from the victim's mother was otherwise admissible. In its written order, the trial court granted in part and denied in part defendant's motion. It granted the motion to exclude evidence of sodomy and denied the motion to exclude "all other evidence" that defendant had sexually abused the victim's mother.

During defendant's second trial, the jury heard testimony from the victim's mother, and the trial court provided a limiting instruction to the jury before her testimony. The victim's mother testified that defendant "molested" her. She stated that it started when she was 13 or 14 years old, and it stopped when she was 15 Or. 16. She testified that defendant touched her vagina with his fingers. She also testified that she would sit on defendant's lap, and he would "rub on me and stuff." The jury also heard testimony from the victim. Defendant was convicted of three counts of first-degree sexual abuse involving the victim.

On appeal, defendant argues that the trial court erred by denying his motion in limine. Defendant argues that "[d]espite sanitizing the evidence somewhat, the trial court's ruling was erroneous because the evidence has no nonpropensity purpose. Alternatively, it was unfairly prejudicial propensity evidence." Relying on State v. Skillicorn, 367 Or. 464, 479 P.3d 254 (2021), defendant argues that the trial court erred in ruling that the prior acts evidence was admissible as noncharacter evidence under OEC 404(3).^[5]Alternatively, defendant argues that even if "that error is not sufficient to require reversal, the trial court erred in its assessment of the evidence under OEC 404(4) and OEC 403." Defendant argues that the trial court "overestimated the state's need for the evidence and underestimated the likely unfairly prejudicial effect that the evidence would have on the jury."

We review for legal error the trial court's determination that evidence of uncharged misconduct qualifies for admission under either OEC 404(3) or OEC 404(4). State v. Terry, 309 Or.App. 459, 461, 482 P.3d 105 (2021). "We review for abuse of discretion a trial court's determination under OEC 403 that the probative value of proffered evidence is not substantially outweighed by the danger of unfair prejudice." Id.

Here, the state concedes that the prior acts evidence was not admissible under OEC 404(3) and that the trial court erred in concluding otherwise. However, the state argues that reversal is not required because "the trial court explicitly concluded that the evidence was admissible under OEC 404(4) to prove defendant's sexual purpose, and it explicitly and independently conducted OEC 403 balancing with that purpose in mind."

We agree with the state's concession that the trial court erred when it determined that the prior acts evidence was admissible under OEC 404(3). In so ruling, the trial court applied "a Johns analysis." State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), was largely overruled by Skillicorn, 367 Or at 476, which explained that, "[i]f the proponent's 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)."

Here, by admitting the prior acts evidence under OEC 404(3) as relevant to show defendant's intent, the trial court invited the jury to infer that defendant was the kind of person who would intentionally subject a minor to sexual contact and that he acted in conformity with that character during his encounters with the victim. See Williams, 357 Or at 21 (discussing the crime of first-degree sexual abuse and explaining that the state is required to prove touching with a sexual purpose). Thus, we accept as well taken the state's concession that the trial court erred by admitting the other acts evidence under OEC 404(3). See State v. Travis, 320 Or.App. 460, 461, 513 P.3d 614 (2022) (accepting a similar concession and citing recent cases holding that evidence of prior conduct to show sexual purpose is impermissible character evidence under OEC 404(3)).

Despite that error, reversal is not required. The trial court also ruled that the prior acts evidence was relevant under OEC 401, it undertook a "Williams analysis," it conducted a balancing test under OEC 403, which included an application of the factors identified in LeMay, 260 F.3d at 1028, and, based on its consideration of those factors, it excluded evidence of sodomy but otherwise admitted the prior acts evidence. Because the trial court separately analyzed the other acts evidence as character evidence, and then engaged in OEC 403 balancing, the trial court's decision complies with the prescribed framework for determining the admissibility of character evidence under OEC 404(4) as explained in Williams, 357 Or at 20, and Travis, 320 Or.App. at 466-67.

In LeMay, 260 F.3d at 1028, the Ninth Circuit identified a series of nonexclusive factors to guide a court's exercise of discretion in determining whether to exclude evidence as unfairly prejudicial under FRE 403, the federal analog of OEC 403. 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.

Here when comparing the evidence of prior bad acts to the charges, the trial court found similarities of "age, location, access, and relation." The trial court explained that both the victim and her mother "were preteens at the time of this alleged abuse. They both endured the abuse in the defendant's home *** when defendant was acting as a care...