State v. Zybach

• Decision Date: 13 June 1989
• Citation: State v. Zybach, 775 P.2d 318, 308 Or. 96 (Or. 1989)
• Parties: STATE of Oregon, Petitioner on review, v. John Michael ZYBACH, Respondent on review. CC 10-86-02070; CA A42508; SC S35751.
• Court: Oregon Supreme Court

Page 318

775 P.2d 318

308 Or. 96

STATE of Oregon, Petitioner on review, v. John Michael ZYBACH, Respondent on review.

CC 10-86-02070; CA A42508; SC S35751.

Supreme Court of Oregon In Banc.

Argued and Submitted April 6, 1989.

Decided June 13, 1989.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Mary Reese, Salem, argued the cause for respondent on review. With her were Gary D. Babcock, Public Defender, and Stephen J. Williams, Deputy Public Defender, Salem.

JONES, Justice.

The issue in this case is whether evidence of encounters with a child victim by an adult defendant after an alleged rape occurred was admissible. The trial court said yes. The Court of Appeals said no. State v. Zybach, 93 Or.App. 218, 761 P.2d 1334 (1988). We reverse the decision of the Court of Appeals.

The victim, then a 13-year-old girl, first met defendant, then age 30, while he was working in her neighborhood in mid-June 1985. After a few days, defendant asked her if she would meet with him. She at first refused, but later in June she encountered defendant at her school. He led her out into an orchard where, after much coaxing and caressing, he had sexual intercourse with her. Defendant told the girl, who had just turned 13, not to worry, that he loved her, and that he was "fixed." She confided in her girl friend and they agreed to keep the affair a secret. The victim testified that she kept it a secret "because I was scared that he might do something if I told," and "I didn't want people to know what happened. I don't know what people might think of me at school and things. I didn't want people to think of me any different, like, at school. I didn't want them to know."

The evidence at issue in the motion to suppress is as follows: On July 4, 1985, the night before the victim was leaving to visit Germany, she was watching fireworks in her neighborhood when defendant approached her and again tried to coax her to a clandestine area, this time a corn field. Before reaching the field, they stopped between two houses where defendant attempted to have the child touch his penis. She testified that defendant said he wanted to make love to her again before she left. She refused and left him when some bicyclists rode by.

The victim testified that later that same evening defendant came to her open bedroom window. She told him to leave and shut the window on him.

On August 4, 1985, the day after the victim returned home from Germany, defendant tried to coax her into meeting him at night at the school and, in a neighborhood cul-de-sac, tried to kiss her at least once. She resisted. She testified that during the next months he continued (at least four times) to come to her bedroom window at night against her wishes. She finally asked her mother for a window blind to help keep him away. Although the mother knew that defendant was bothering the victim at their home, she had not been told of the previous sexual encounter.

In March 1986, after defendant once again tried to talk the victim into meeting him at school at night, she and her girl friend decided to reveal the closely held secret in order to stop his repeated unwanted advances toward her. They reported defendant's actions to her girl friend's parents, who in turn reported the acts to the police.

The Court of Appeals held that none of this evidence was admissible because OEC 404(2) prohibits propensity evidence of character. We agree, although we reject the Court of Appeals' statement that OEC 404(2) should be construed "narrowly in cases involving sex crimes." 93 Or.App. at 221, 761 P.2d 1334. The rule excludes evidence of character, particularly evidence concerning propensity to commit a certain type of crime--be it murder, rape, robbery or otherwise. The rule is not "wide or narrow" depending on the crime.

Although the state offered the evidence to show the special amorous interest in the victim by defendant, the state also offered the evidence of the encounters between defendant and the victim as being relevant under OEC 401 to prove why the victim delayed reporting the crime. OEC 404(3) expressly provides that

"[e]vidence 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...