State v. Urlacher

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Appellant, v. Thomas George URLACHER, Respondent. ; CA 13196.
• Citation: 42 Or.App. 141,600 P.2d 445
• Docket Number: No. CC78-531,CC78-531
• Court: Oregon Court of Appeals
• Decision Date: 17 September 1979

Page 445

600 P.2d 445

42 Or.App. 141

STATE of Oregon, Appellant, v. Thomas George URLACHER, Respondent.

No. CC78-531; CA 13196.

Court of Appeals of Oregon.

Argued and Submitted June 27, 1979.

Decided Sept. 17, 1979.

James C. Rhodes, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Stephen L. Roman, Astoria, argued the cause for respondent. With him on the brief was Zafiratos & Roman, Astoria.

Before SCHWAB, C. J., and TANZER and ROBERTS, JJ.

TANZER, Judge.

The state appeals from a pretrial order granting defendant's motion to limit evidence in his trial for first degree rape. The circuit court ruled that it would not admit testimony of two women other than the alleged victim that defendant had made aggressive sexual advances toward during the 12 hours preceding the alleged rape. We affirm.

After pretrial discovery, defendant moved to exclude the testimony on the ground that it was evidence of other crimes or bad acts by defendant which were not relevant to the crime charged and would be highly prejudicial to his defense. The court held a pretrial hearing at which the two witnesses testified about their separate encounters with defendant before he met the alleged victim in this case. It concluded that their testimony was not relevant to any material issue in the case, that the primary effect of the evidence would be to blacken his character and establish his propensity to commit the crime charged, and that the potential prejudice to defendant outweighed the probative value to the state.

The first witness testified that she and defendant had made a date to go to a nearby lake. On the way, they stopped at his house to get some drinking glasses. Once there, each had a drink and defendant began making advances. He laid down on top of her, attempted to undo her pants and touched her intimate parts. He did not use "much force" or hurt her. She resisted and when she began to cry, he got up and apologized. She left the house and did not return.

The second witness testified that she met defendant at a bus stop and accepted his invitation to go to a party. On the way, they stopped at defendant's house for him to pick up a coat. He tried to put his arm around her, but she resisted and explained that she was not interested in his advances. Nevertheless, he picked her up and placed her on the couch. She became angry, got up, and walked out of the house. He drove her back to town. Soon after, he picked up the alleged victim in this case. Defendant admits intercourse with the her at his house, but alleges it was consensual.

Relevant evidence of bad acts is inadmissible if the prejudicial effect of such evidence outweighs its probative quality. State v. Manrique, 271 Or. 201, 205-206, 531 P.2d 239 (1975). Conversely, such evidence is admissible if it is more probative than prejudicial. The rule tends to be strictly applied in cases of sexual crimes because such evidence is particularly inflammatory. State v. Sicks, 33 Or.App. 435, 438, 576 P.2d 834 (1978).

The state contends that the evidence is relevant in several ways. First, it contends that defendant's prior aggressive sexual advances to the other women (which it denominates as "modus operandi") are relevant to disprove defendant's defense of consent. Similarly, the state argues that the evidence is relevant to defendant's "state of mind" because it suggests that forcible compulsion is his conception of an "amorous advance." The...