State v. Le

327 Or.App. 129

534 P.3d 1097

STATE of Oregon, Plaintiff-Respondent,

v.An Ngoc LE, Defendant-Appellant.

A175902

Court of Appeals of Oregon.

Submitted December 20, 2022

July 19, 2023

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment convicting him of two counts of first-degree sexual abuse, ORS 163.427, and asserts three challenges to the underlying proceedings. In his first assignment, he argues that the trial court erroneously admitted evidence of his prior uncharged acts under OEC 404(3) and abused its discretion when later conducting the required OEC 403 balancing for unfair prejudice. In his second and third assignments, defendant argues that his 75-month prison sentences violate Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. We conclude that the trial court's admission of evidence regarding defendant's prior uncharged acts was not in error, that defendant's sentences do not violate the Oregon Constitution as interpreted in State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009), and that he did not preserve his arguments under the Eighth Amendment. Accordingly, we affirm.

We evaluate the facts concerning a challenge to "the denial of a defendant's motion to exclude evidence of other acts in light of the record made before the trial court when it issued the order." State v. Brumbach , 273 Or App 552, 553, 359 P.3d 490 (2015), rev. den. , 359 Or. 525, 379 P.3d 516 (2016). We state the relevant facts in accordance with that standard and include additional facts and specific standards of review in our discussion of each assignment of error.

The state charged defendant in 2016 with two counts of first-degree sexual abuse, ORS 163.427, based on allegations that he had subjected a family friend's 13-year-old daughter, C, to sexual contact on two occasions, one by touching C's clothed chest and putting his hand on C's leg to massage her thigh and the other by touching C's breast.¹ A jury convicted defendant of both counts and the court sentenced him accordingly. We affirmed that judgment, but the Supreme Court later reversed and remanded both convictions for a new trial in light of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020).

On remand, defendant moved in limine under OEC 403 to exclude evidence of two prior uncharged acts, which the state had introduced under OEC 404(3) during defendant's first trial to support the state's theory that defendant had touched C for a sexual purpose on the charged occasions.² One of those acts occurred at a dinner gathering of defendant's and C's families; defendant allegedly pulled C's dress away from her chest and looked down to see whether any food had gone down her dress. The other act concerned an occasion when defendant allegedly made comments about C's body relating to places where she had gained and lost weight.

In support of his motion, defendant argued that, under State v. Johns , 301 Or. 535, 725 P.2d 312 (1986), overruled by State v. Skillicorn , 367 Or. 464, 479 P.3d 254 (2021), evidence of his prior acts could not be admitted under OEC 404(3) to prove his sexual intent.³ Defendant further argued that, if the evidence was admissible under OEC 404(3), it should be excluded under OEC 403 as unfairly prejudicial. The state contended that the evidence was admissible under OEC 404(3) and State v. McKay , 309 Or. 305, 787 P.2d 479 (1990), "to prove defendant's intent" or "[m]ore specifically" to "demonstrate[ ] * * * defendant's sexual predisposition towards" C. See id. at 308, 787 P.2d 479 (holding that evidence that is used "to demonstrate the sexual predisposition" of a defendant towards a "particular victim" is admissible "to show the sexual inclination of the defendant towards the victim, not that [the defendant] had a character trait or propensity to engage in sexual misconduct generally"). The state further argued that OEC 403 would not bar the admissibility of that evidence as its prejudicial effect would not substantially outweigh its probative value.

At a hearing on the motion, both defendant and the state reiterated the arguments in their pretrial memorandums. The state argued that the disputed evidence was admissible under OEC 404(3) because it would provide valuable context demonstrating that defendant had an interest in C, which was relevant to whether he touched her with a sexual purpose on the charged occasions. The state reasserted that the evidence was "only prejudicial in that it show[ed] that [defendant] ha[d] a sexual purpose, but it's not unfairly prejudicial." Defendant continued to rely on Johns and characterized the probative value of the evidence as "innocuous," which the state adopted on rebuttal to argue that it carried no risk of unfair prejudice.

Agreeing with the state, the trial court denied defendant's motion:

"[C]onsidering the [s]tate's burden in proof, I don't see how they could possibly prove their case without creating the context that the predicate acts * * * happened. I'm not finding they did happen. I haven't heard any evidence on that point yet. But the [s]tate's entitled to do it.

"* * *[T]here's minimal, if any, unfair prejudice to this.

"And, as the facts come out, [defense counsel], I'm sure you'll be pointing out any discrepancies or inconsistencies in the facts. I mean, certainly able to split that off.

"So, I think that the Johns standards here are met. I'm going to allow those statements to come in or those incidents to come in."

Defendant's case proceeded to a bench trial. The state introduced the recording of C's interview at Child Abuse Response and Evaluation Service (CARES), during which C disclosed defendant's prior conduct of pulling her dress and looking down her body, and about which C also testified. In addition to C, seven other witnesses testified for the state, including C's high school friend, C's school counselor, the CARES interviewer, and C's mother, who testified to the following:

"Right when we got into the car, [C] related the story to me, saying that [defendant] had touched her in the thigh and chest. She was really scared and was crying.

"* * * * *

"I told her, ‘Let's not try to remember that. Let's try to forget about it. Let's try to forgive him.’ "

C also testified about defendant's charged conduct and stated that:

"[Defendant] walked into the room, and * * * started talking to me * * *.

"[He] talked about how he owned a salon, so I should come down and, like, he could massage me[,] while he was kind of squeezing my leg up and down. And I just was really uncomfortable in that moment and kind of in shock.

"* * * * *

"[He touched my breast with] [h]is hand * * *.

"He grabbed it [over my clothes]."

Regarding defendant's second charged conduct, C testified:

"We were walking all together, and then [defendant's son] was rushing ahead, so I was walking side-by-side with [defendant], and he put his arm around my shoulder. * * * [H]is hand was kind of dropping down, and it fell * * * onto the top of my breast, and he was kind of, like, waving it side to side, and it felt like he was trying to get underneath my shirt.

"* * * * *

"I just felt fingers brushing the top of my breast."

Defendant, who did not testify, denied ever touching C for a sexual purpose. The court ultimately found defendant guilty of both counts of first-degree sexual abuse, finding C's testimony to be "very credible." The court explained:

"[C] had no motive to lie. She had lots of family and cultural pressure to make this whole thing just disappear under the rug, but she managed to thread the needle between doing what was right and remaining respectful, as best she could, to her elders.

"* * * * *

"The context within which these activities took place leave no doubt that the purpose of his physical touching does qualify as sexual contact under the statute."

The court then sentenced defendant to concurrent 75 months’ incarceration on each count, as required by ORS 137.700.

We begin with defendant's first assignment of error, which challenges the admission of evidence of his prior conduct under OEC 404(3) and OEC 403. We review for legal error a trial court's admission of uncharged misconduct evidence under OEC 404(3). State v. Wright , 283 Or App 160, 168, 387 P.3d 405 (2016). "[W]e review the trial court's determination under OEC 403 for an abuse of discretion."

State v. Naudain , 300 Or App 222, 227, 452 P.3d 970 (2019), aff'd , 368 Or. 140, 487 P.3d 32 (2021).

Defendant first argues that the court improperly concluded that the evidence was relevant to show his sexual predisposition towards C under OEC 404(3). He contends that evidence of a defendant's sexual predisposition for a particular victim "is nothing more than propensity evidence" and should be excluded. He acknowledges that the Supreme Court held in McKay that evidence used "to demonstrate the sexual predisposition" of a defendant towards a "particular victim" is admissible "to show the sexual inclination of [the] defendant towards the victim," 309 Or. at 308, 787 P.2d 479, and that we upheld that theory of admissibility in State v. Gonzalez-Sanchez , 283 Or App 800, 809, 391 P.3d 811, rev. den. , 361 Or. 645, 398 P.3d 41 (2017), but maintains that neither we nor the Supreme Court has explained how using evidence of prior acts to show sexual predisposition does not constitute propensity evidence. In defendant's view, Gonzalez-Sanchez was wrongly decided and has been undermined by Skillicorn .⁴ Because Skillicorn is not directly on point, as it involved the doctrine of chances and this case does not, and McKay , which is...