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State v. Febuary

Summarized by: 

Date Filed: 12-05-2012
Case #: A141519
Ortega, P.J. for the Court; Brewer, J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A141519.pdf

Evidence: Testimony of a prior incident of sexual abuse must carry a sufficient concurrence of common features for it to be admissible as noncharacter evidence under OEC 404.

Defendant appealed convictions for various sexual acts, assigning error to the trial court's decision to admit testimony by the victim's two older sisters who were allegedly sexually abused by Defendant as well. The victim's oldest sister testified that Defendant married their mother when she was 12, she never viewed him as a father figure, and their relationship was turbulent. When she was 20, Defendant gave her alcohol and touched her inappropriately while she was intoxicated. The middle sister and the victim subsequently testified that they were five and two years old, respectively, when Defendant moved in with their mother. Both girls viewed him as a father figure, both girls were inappropriately touched by him at around age 13. In the State's memorandum responding to Defendant's motion in limine to suppress the sisters' testimony, it argued that the prior acts were relevant for the noncharacter purpose of showing plan to sexually abuse the victim. The Court of Appeals agreed about an existing plan regarding the middle sister but not the oldest sister, opining that there was a "sufficient concurrence of common features" between the incidents with the middle sister but not the older, and that this error was not harmless. Reversed and remanded.