State v. Le ( 2023 )

No. 372 July 19, 2023 129
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
AN NGOC LE,
Defendant-Appellant.
Washington County Circuit Court
16CR78119; A175902
Theodore E. Sims, Judge.
Submitted December 20, 2022.
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.
Affirmed.
130 State v. Le
Cite as 327 Or App 129 (2023) 131
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 errone-
ously admitted evidence of his prior uncharged acts under
OEC 404(3) and abused its discretion when later conduct-
ing 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 P3d 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 P3d 490 (2015), rev den, 359 Or 525 (2016). We state the
relevant facts in accordance with that standard and include
additional facts and specific standards of review in our dis-
cussion 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 sen-
tenced him accordingly. We affirmed that judgment, but the
Supreme Court later reversed and remanded both convic-
tions for a new trial in light of Ramos v. Louisiana, 590 US
___, 140 S Ct 1390, 206 L Ed 2d 583 (2020).
1
ORS 163.427(1) provides that “[a] person commits the crime of sexual abuse
in the first degree when that person * * * [s]ubjects another person to sexual con-
tact and [t]he victim is less than 14 years of age[.]”
132 State v. Le
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 defen-
dant’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 defen-
dant’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 P2d 312 (1986), over-
ruled by State v. Skillicorn, 367 Or 464, 479 P3d 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 P2d 479(1990), “to prove defendant’s intent” or “[m]ore specifically”
to “demonstrate[ ] * * * defendant’s sexual predisposition
towards” C. See id. at 308 (holding that evidence that is
used “to demonstrate the sexual predisposition” of a defen-
dant 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 fur-
ther argued that OEC 403 would not bar the admissibility
of that evidence as its prejudicial effect would not substan-
tially outweigh its probative value.
At a hearing on the motion, both defendant and
the state reiterated the arguments in their pretrial memo-
randums. The state argued that the disputed evidence was
2
OEC 403 provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice[.]”
OEC 404(3) provides that “[e]vidence of other * * * acts is not admissible to prove
the character of a person in order to show that the person acted in conformity
therewith” but “may, however, be admissible for other purposes, such as proof of
motive, opportunity, [or] intent[.]”
3
Defendant’s motion in limine, as well as his second trial, occurred before
the Supreme Court decided Skillicorn.
Cite as 327 Or App 129 (2023) 133
admissible under OEC 404(3) because it would provide valu-
able 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 reas-
serted 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 find-
ing 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 inci-
dents 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 coun-
selor, 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.’ ”
134 State v. Le
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 defen-
dant guilty of both counts of first-degree sexual abuse, find-
ing 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 disap-
pear 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.
Cite as 327 Or App 129 (2023) 135
We begin with defendant’s first assignment of error,
which challenges the admission of evidence of his prior con-
duct under OEC 404(3) and OEC 403. We review for legal
error a trial court’s admission of uncharged misconduct evi-
dence under OEC 404(3). State v. Wright, 283 Or App 160,
168, 387 P3d 405 (2016). “[W]e review the trial court’s deter-
mination under OEC 403 for an abuse of discretion.” State v.
Naudain, 300 Or App 222, 227, 452 P3d 970 (2019), aff’d, 368
Or 140 (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 “partic-
ular victim” is admissible “to show the sexual inclination of
[the] defendant towards the victim,” 309 Or at 308, and that
we upheld that theory of admissibility in State v. Gonzalez-
Sanchez, 283 Or App 800, 809, 391 P3d 811, rev den, 361 Or
645 (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 evi-
dence. 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 on
4
In Skillicorn, the Supreme Court held that evidence is not admissible under
OEC 404(3) to prove motive, intent, lack of accident, and others under the doctrine
of chances if it employs propensity reasoning. 367 Or at 493-94. In that case, the
court addressed the admission of evidence of a defendant’s “uncharged miscon-
duct” for the purpose of showing the defendant’s character generally, rather than
for the purpose of showing a defendant’s sexual predisposition toward a specific
victim, as in McKay.
“The doctrine of chances is a theory of relevance based on the objective
improbability of the recurrence of uncommon events. The idea underlying the
doctrine is that, at some point, it becomes unlikely that each event in a series
of similar events can have the same uncommon cause; therefore, if the num-
ber of events in a series claimed to have the same uncommon cause exceeds
the number that can reasonably be expected to have that cause, a factfinder
can infer that not all of the events actually have that cause.”
Skillicorn, 367 Or at 484.
136 State v. Le
point, has not been overruled, McKay controls our decision.
We thus reject defendant’s argument, having rejected a sim-
ilar argument in Gonzalez-Sanchez. See 283 Or App at 808
n 3.
Addressing the specific circumstances of defen-
dant’s case, we conclude that the evidence of defendant’s
other acts was admissible under OEC 404(3). As the record
developed before the court’s ruling on defendant’s motion,
the state offered evidence that defendant looked down C’s
dress and made comments about her body for the purpose
of proving his “sexual predisposition towards” C, thereby
offering context showing that the charged acts had a sex-
ual purpose. The court admitted the evidence in accordance
with the state’s theory. Because the McKay theory of admis-
sibility as to sexual predisposition toward a specific victim
upheld in Gonzalez-Sanchez is still valid, the trial court did
not err in ruling that the evidence was admissible under
OEC 404(3).
Defendant further contends that “the court abused
its discretion when it concluded [under OEC 403] that the
propensity value of the disputed evidence outweighed the
risks of unfair prejudice” against him, and that the court’s
error was not harmless. According to defendant, the court
admitted the disputed evidence based on an erroneous “pro-
pensity” theory, and so its conclusion that the evidence’s pro-
bative value exceeded the danger of unfair prejudice was a
misapprehension of the OEC 404 legal principle. We are not
persuaded.
“An abuse of discretion occurs when a court exer-
cises its discretion to an end not justified by, and clearly
against, evidence and reason.” State v. Sewell, 257 Or App
462, 468, 307 P3d 464, rev den, 354 Or 389 (2013) (inter-
nal quotation marks omitted). “In evaluating a trial court’s
discretionary ruling under OEC 403, our role is to assess
whether the court’s decision falls within the range of legally
permissible choices.” State v. Gibson, 299 Or App 582, 589,
451 P3d 259 (2019), rev den, 366 Or 691 (2020). A court’s
decision fails to “fall within the range of legally correct
choices and does not produce a permissible, legally correct
outcome,” when the “court’s exercise of discretion proceeds
Cite as 327 Or App 129 (2023) 137
from a mistaken legal premise.” Nationstar Mortgage, LLC
v. Hinkle, 321 Or App 300, 311-12, 516 P3d 718 (2022).
Here, defendant’s only challenge to the court’s
application of OEC 403 is founded on the premise that the
disputed evidence was improperly admitted for a propen-
sity purpose. However, as explained above, under McKay,
its admission was for a nonpropensity purpose which was
within the range of legally permissible choices and thus was
not an abuse of discretion. Accordingly, the court did not err
in admitting the evidence.
We turn to defendant’s second and third combined
assignments of error, challenging his concurrent 75-month
prison term sentences as constitutionally disproportionate.
We review such claims for legal error and, “[i]n conducting
that review, we are bound by any findings of historical fact
that the trial court may have made, if they are supported
by evidence in the record.” State v. Hawthorne, 316 Or App
487, 502, 504 P3d 1185 (2021), rev den, 369 Or 856 (2022).
“In the absence of express findings, we * * * presume that
the trial court resolved factual disputes consistently with its
ultimate decision.” State v. Ryan, 361 Or 602, 624, 396 P3d
867 (2017).
Defendant’s first-degree sexual abuse convictions
were subject to a mandatory minimum 75-month prison
sentence under ORS 137.700(2)(a)(Q) (Ballot Measure 11).
Defendant argued in the trial court that ORS 137.700
required sentence, as applied to his case, violate[d] Article I,
section 16, in light of Rodriguez/Buck, 347 Or at 50 (hold-
ing that a 75-month sentence for first-degree sexual abuse
offense was unconstitutionally disproportionate under the
specific circumstances at issue). He maintained that a simi-
lar result should follow here because, as in that case, (a) his
touching of C’s “clothed breast” and later “brushing” of the
top of her breast “with the tips of his fingers” was brief;
(b) 75 months in prison for his conduct is disproportion-
ate when compared to cases of sexual penetration or sod-
omy which carry similar sentences; and (c) defendant ha[d]
no criminal history. See Rodriguez/Buck, 347 Or at 67-78(assessing similar factors and reaching similar conclusions).
According to defendant, his sentence “would shock the moral
138 State v. Le
sense of a reasonable person.” He argued that he should be
sentenced at his natural grid block of 8-I for Count 1, which
he stated would carry a presumptive sentence of 16 to 18
months, and 8-D for Count 2, which would carry a presump-
tive sentence of 27 to 28 months.
In response, the state compared the facts of defen-
dant’s case to the facts in Rodriguez and Buck, arguing that
a Measure 11 sentence for defendant was appropriate. The
state argued that defendant’s case involved a “more serious
level of culpability” than in Rodriguez/Buck, considering
that here defendant “was not in a consensual relationship
with” C as in Rodriguez, “nor was the contact incidental” as
in Buck; the state pointed out that defendant was instead a
“trusted” family friend whose conduct consisted of “putting
his hand down [C’s] shirt and touching her breast” on “two
separate occasions,” after making her uncomfortable on prior
occasions. According to the state, a mandatory minimum
75-month prison sentence would not “shock the conscience”
to the level of being unconstitutionally cruel and unusual.
The trial court agreed with the state and decided to
apply the 75-month prison term as required by ORS 137.700.
The court explained:
“The legislature has established a minimum sentence
in this case of 75 months. [Defendant] makes a good argu-
ment that that is a harsh sentence under the circumstances
of this case. It is, however, not so harsh as to shock the con-
science of the [c]ourt.”
On appeal, defendant maintains his argument
that his 75-month prison sentences would “shock the moral
sense” of reasonable people and are thus unconstitution-
ally disproportionate under Article I, section 16. See Or
Const, Art I, § 16 (“Cruel and unusual punishments shall
not be inflicted, but all penalties shall be proportioned to
the offense.”); see also Rodriguez/Buck, 347 Or at 57 (a pun-
ishment fails Article I, section 16, proportionality require-
ment if that punishment “shock[s] the moral sense of all rea-
sonable” people (emphasis in original)).5 The state likewise
reasserts the arguments it offered below.
5
Defendant also argues for the first time in his brief on appeal that his
75-month prison sentences violate the Eighth Amendment to the United States
Cite as 327 Or App 129 (2023) 139
When applying ORS 137.700(2)(a)(Q), a trial court
is permitted to depart from the “mandatory minimum”
75-month prison sentence requirement if it finds that the
respective sentence would be unconstitutionally dispro-
portionate; that is, when the court finds that a sentence
would “shock the moral sense” of reasonable people. State
v. Wheeler, 343 Or 652, 668, 175 P3d 438 (2007). Rodriguez/
Buck established three factors to be considered in making
that determination: “(1) a comparison of the severity of the
penalty and the gravity of the crime; (2) a comparison of the
penalties imposed for other, related crimes; and (3) the crim-
inal history of the defendant.” 347 Or at 58.
In assessing the first factor in Rodriguez/Buck—
comparing the penalty to the gravity of the offense—the
court considered “the limited extent” of the “physical touch-
ing” in each case. Id. at 70. In Rodriguez, the defendant
caused the back of a boy’s head “to be in contact with her
clothed breasts for about a minute,” in a room of 30 to 50
other people; in Buck, the defendant “let[ ] the back of his
hand remain when the girl leaned her clothed buttocks
against his hand several times and later wip[ed] dirt off the
back of her shorts with two swipes of his hand.” Id. The court
noted that, in Rodriguez, there was “no evidence” that any
touching “involved fondling, stroking, rubbing, or palpating”
and that, in Buck, the contact “did not involve fondling and
was ‘minimal.’ ” Id. at 70. In both cases, the “touchings were
brief, if not momentary[,]” the “ ‘intimate’ body parts that
were touched were clothed,” and there was “no skin-to-skin
contact” or other more invasive contact. Id. Determining
that “all reasonable people” would agree that the conduct in
which the defendants engaged therein was “far less severe,
wrongful, immoral, or harmful to a victim than at least one
other form of first-degree sexual abuse,” the court concluded
that the first factor indicated that the respective 75-month
Constitution. We do not address this issue because it was not preserved. See
ORAP 5.45 (“No matter claimed as error will be considered on appeal unless the
claim of error was preserved in the lower court[.]”); see also State v. Link, 367 Or
625, 639, 482 P3d 28 (2021) (Although a party need not “develop separate and
distinct arguments under both constitutions in the trial court to preserve both
issues for review on appeal” when “parallel constitutional provisions are at issue,”
the party “must frame its argument in a way that gives notice to the trial court
and opponents that it is advancing its claim under both constitutional sources.”).
140 State v. Le
prison sentences would be disproportionate to the gravity of
the offenses. Id. at 71, 74 (emphasis in original).
Assessing the second factor—a comparison of the
penalty to the penalties for related offenses—the court
observed that related offenses, including second-degree sod-
omy (ORS 163.395) and second-degree rape (ORS 163.365),
required 75-month prison sentences. It observed that,
despite the fact that the first-degree sexual abuse offenses
of Rodriguez and Buck were predicated on a “momentary”
contact, the imposed sentences would “result[ ] in the same
sentence” as if the defendants had sodomized or engaged in
sexual intercourse with the children. Id. at 75. The court
also compared the penalty at issue with the 75-month
prison sentence for second-degree sexual abuse (ORS
163.425), observing that its “physical and sexual content,
invasion of the body of the victim, and likely psychological
impact, seem[ed] far removed from the touchings at issue”
in Rodriguez/Buck. Id. at 76. Concluding that most people
would consider the conduct in these related offenses “far
more serious than the conduct of Rodriguez and Buck,” the
court saw this as “another indication that [75-month prison]
sentences in these cases would be disproportionate to the
offense.” Id.
Finally, despite observing that “Measure 11’s man-
datory 75-month sentence for first-degree sexual abuse
applies even if the defendant has had no prior criminal [his-
tory],” the court concluded that “the single occurrence of the
wrongful conduct,” in light of the defendants’ lack of crimi-
nal history, “support[ed] the conclusion that [the defendants’]
75-month sentence[s]” did violate the constitutional propor-
tionality requirement. Id. at 78 (noting that the defendants
“not only had no prior convictions or charges of any kind,”
but “the brief touching occurred on a single occasion[,]” in
contrast to “more common first-degree sexual abuse cases”
where “the contact is * * * more physically invasive and * * *
has occurred multiple times, rather than only once”). The
court then held that all factors together indicated that the
defendants’ sentences were “unconstitutionally dispropor-
tionate to the offense” under Article I, section 16. Id. at 71,
78.
Cite as 327 Or App 129 (2023) 141
By contrast, in Camacho-Garcia, we concluded
under Rodriguez/Buck that a 75-month sentence for first-
degree sexual abuse was not disproportionate. 268 Or App
75, 341 P3d 888 (2014), rev den, 357 Or 164 (2015). The
defendant in Camacho-Garcia, who was a “live-in paren-
tal figure” to his 12- or 13-year-old stepdaughter, “touched
[her] breasts on two occasions, once over and once under her
clothes.” Id. at 76, 82. Because the touching was “more inva-
sive than in Rodriguez/Buck,” and “more likely to be psycho-
logically damaging [as] it was repeated,” and because of the
defendant’s role in the parties’ relationship, we found that
the defendant’s sentence was not disproportionate when
compared to other crimes. Id. at 83. Regardless of other fac-
tors, we concluded that the defendant’s “sentence would not
shock the moral sense of reasonable people and [wa]s not
disproportionate under Article I, section 16.” Id. at 84.
Here, we conclude that, like Camacho-Garcia and
unlike Rodriguez/Buck, defendant’s “sentence would not
shock the moral sense of [all] reasonable people,” though
we acknowledge that in an age in which long sentences like
those imposed under Measure 11 are coming under more
scrutiny, the sentence would shock the moral sense of some.
Nevertheless, unlike the conduct in Rodriguez/Buck, defen-
dant’s conduct here—massaging C’s legs and touching her
clothed breast on one occasion, and then attempting to put
his hand down her shirt by “waving it side to side” such that
he brushed the top of her breast with his fingers on another
occasion—was more like a “rubbing” or “palpating” that was
not present in Rodriguez/Buck and is not minimal. Like in
Camacho-Garcia—which involved over- and under-clothes
contact of the defendant’s hand with the victim’s breast—
defendant’s repeated conduct here was “more invasive than
in Rodriguez/Buck” and “more likely to be psychologically
damaging,” especially in the context of his relationship with
C. As such—and considering C’s testimony that defendant’s
conduct made her “really uncomfortable” and “shock[ed]”—
not “all reasonable people” would agree that defendant’s con-
duct was less “wrongful, immoral, or harmful” to C to the
level of being disproportionate to at least one other form of
first-degree sexual abuse. Given all of these considerations,
we conclude that defendant’s lack of criminal history has
142 State v. Le
little weight in balancing the Rodriguez/Buck factors in this
case.
Accordingly, we agree with the trial court that
defendant’s sentences did not violate Article I, section 16,
and see no error in the court’s refusal to depart from the
ORS 137.700 minimum-sentence requirement.
Affirmed.