Background
David Alan Moles was retried on six counts of first-degree sexual abuse involving his granddaughter, D, after the Oregon Supreme Court reversed his earlier convictions because they rested on nonunanimous jury verdicts. Before the retrial, Moles sought to exclude evidence that he had sexually abused D’s mother, his stepdaughter, when she was approximately 10 to 15 years old.
The trial court excluded allegations involving sodomy and penetration but allowed D’s mother to testify that Moles had placed her on his lap, touched her sexually, and rubbed her against himself. The court instructed the jury that it could consider that evidence only after finding beyond a reasonable doubt that the charged touching of D occurred, and then only in deciding whether Moles acted intentionally or for a sexual purpose. Moles was convicted on three counts.
The Court of Appeals initially affirmed. The Oregon Supreme Court later vacated that decision and remanded for reconsideration under State v. Davis, which clarified how courts must conduct OEC 403 balancing when other-acts propensity evidence is offered under OEC 404(4).
The Court’s Holding
The Court of Appeals again affirmed, holding that the trial court did not abuse its discretion under OEC 403 by admitting the limited evidence of Moles’s prior abuse of D’s mother. The parties agreed that the evidence was logically relevant and that its relevance depended on propensity reasoning; the question was whether its probative value was substantially outweighed by the danger of unfair prejudice.
Applying Davis, the court separated the evidence into the abusive conduct and its surrounding context. The conduct was highly probative of Moles’s sexual interest in young girls and therefore of whether, if he committed the charged touching, he acted for a sexual purpose—an element of first-degree sexual abuse. Although the contextual evidence carried a stronger risk of an impermissible inference that Moles abuses children in his home, the evidence as a whole was admitted to establish sexual purpose, not to prove that he committed the charged acts.
The trial court adequately mitigated the risk of unfair prejudice by excluding the more inflammatory sodomy and penetration allegations and giving a limiting instruction before D’s mother testified. The prior conduct also was no more inflammatory than the charged conduct. Those safeguards supported the trial court’s discretionary balancing.
Key Takeaways
- Prior sexual-abuse evidence may be admitted under OEC 404(4) to establish sexual purpose when that purpose is an element of the charged offense, even though the evidence relies on propensity reasoning.
- Under State v. Davis, courts should parse other-acts evidence into its constituent parts, assess the character reasoning underlying each part, and evaluate the evidence as a whole under OEC 403.
- Excluding especially inflammatory details and instructing jurors not to use prior-acts evidence unless they first find the charged conduct proved can materially reduce the danger of unfair prejudice.
Why It Matters
The decision illustrates how Oregon courts apply Davis to prior-acts evidence in child-sexual-abuse prosecutions. It distinguishes using such evidence to decide whether proven touching had a sexual purpose from using it to infer that the defendant committed the charged touching because of bad character.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.