State v. Reeder

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Roger Scott REEDER, Appellant. 94-020284; CA A86937.
• Citation: State v. Reeder, 904 P.2d 644, 137 Or.App. 421 (Or. App. 1995)
• Court: Oregon Court of Appeals
• Decision Date: 25 October 1995

Page 644

904 P.2d 644

137 Or.App. 421

STATE of Oregon, Respondent, v.Roger Scott REEDER, Appellant.

94-020284; CA A86937.

Court of Appeals of Oregon.

Argued and Submitted Sept. 1, 1995.

Decided Oct. 25, 1995.

Gary D. Babcock, Salem, argued the cause and filed the brief for appellant.

Janie M. Burcart, Assistant Attorney General, argued the cause for respondent.With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LEESON, Judge.

Defendant seeks reversal of his convictions for sodomy and first-degree sexual abuse.ORS 163.405;ORS 163.427.We affirm.

Defendant was accused of sexually abusing the nine-year-old son of a family friend.Defendant proposed to call approximately 10 witnesses who would have testified that during the last decade defendant had been involved with their children in recreational activities and taken them on overnight camping trips.He also wanted to ask the witnesses whether there had been "any problems that have arisen during the camping" and to have each witness testify that defendant had not engaged in sexual abuse on those occasions.According to defendant, that testimony was admissible as "character of his trait for propensity to not commit sexual aberrations."The trial court sustained the state's objection to both of those inquiries on the grounds that evidence that defendant did not abuse children on other occasions is not relevant and that the proferred testimony is not evidence of a pertinent character trait within the meaning of OEC 404(2)(a).Defendant then made the following offer of proof:

"[T]he witnesses would say * * * that their children have been associated with [defendant] for anywhere from one to ten years on many, many familiar occasions, staying overnight every weekend for three years.* * * In each of the instances of all of the witnesses that will be here, that they would testify that they have an opinion as to the character of [defendant] as far as his propensity for committing the accused act, and it is completely out of his character."(Emphasis supplied.)

Defendant assigns error to the trial court's exclusion of the proffered testimony.He contends that the evidence is admissible under OEC 404(2)(a) as character evidence supporting his defense.The state responds that evidence of defendant's propensity to commit sex crimes is not admissible as showing a pertinent trait of defendant's character, because there is no such character trait as committing or not committing sex crimes.

OEC 404(2) provides:

"Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

" * * * * *

"(a) Evidence of a pertinent trait of character offered by an accused * * *."

Although "character" is not defined in the Oregon Evidence Code,

" 'Character' generally indicates 'a person's disposition or propensity towards certain behavior, such as honesty,' * * * or 'a person's tendency to act in a certain way in all varying situations of life.' "State v. Carr, 302 Or. 20, 25, 725 P.2d 1287(1986)(quoting Laird Kirkpatrick, Oregon Evidence 115 (1982) and Legislative Commentary to OEC 406).

In State v. Marshall, 312 Or. 367, 372, 823 P.2d 961(1991), the court observed:

"Character evidence * * * is evidence of a particular human trait, such as truthfulness, honesty, temperance, carefulness, or peacefulness, etc.A person's character with respect to truthfulness means that person's propensity to tell the truth in all the varying situations of life.A person's character with respect to carefulness means that person's propensity to act with care in all the varying situations of life."

When character evidence is offered for one of the purposes allowed under OEC 402(2), proof may be...