State v. Morgan

WARREN, J.

Defendant was convicted of rape in the first degree. ORS 163.375. He assigns as error the triad court’s refusal to allow him to introduce evidence of prior consensual sexual intercourse with complainant. We reverse and remand for a new trial.

Complainant testified that defendant forced sexual intercourse with her. Evidence was presented that, before the alleged rape, defendant and complainant had been dating for approximately a month and a half. Complainant testified that she wanted to break off her relationship with defendant and that defendant said “no girl ever broke off with him without him finding out first what she was like in bed.” Defendant contended that complainant consented to sexual intercourse on the afternoon in question and sought to show that she had a motive to charge him with rape falsely after finding out that he had been “sleeping with” another woman.¹

In order to show the character of their involvement, defendant made an offer of proof pursuant to OEC 412² to admit evidence that he and complainant allegedly had had consenual sexual intercourse about six times. During the offer, complainant denied ever having sexual intercourse with defendant before the alleged rape incident. The trial judge, in denying defendant’s request, reasoned that the fact that there may have been consent on one or more occasions does not mean that there was consent on the occasion in question. While the fact that defendant and complainant may have had sexual intercourse on other occasions does not show consent on the occasion in question, evidence of the victim’s past sexual behavior with defendant can be considered as forming the foundation of a motive to make a false accusation of rape. OEC 412(2)(b)(A).

Complainant testified that defendant had not shown up as arranged on the day in question to take her to an 8:30 a.m. appointment. About noon that same day, she located defendant and discovered that he had spent the night with a mutual friend. That led to a disagreement. Complainant testified:

. “Q [BY DISTRICT ATTORNEY]: Did that cause you to become angry?

“A [BY COMPLAINANT]: Yes, because I found out that he had been sleeping over there with her, and it was hard for me to go out with him when that was going on.”

Because evidence of alleged prior sexual relations between defendant and complainant are relevant to defendant’s claim of jealousy and anger as a motive falsely to charge rape, that evidence is admissible under OEC 412(2)(b)(A). If we were to read OEC 412 to prohibit evidence of possible ulterior motive for making a false charge, it would impermissibly infringe on defendant’s constitutional right to confrontation. State v. Jalo, 27 Or App 845, 850, 557 P2d 1359 (1976), rev den 277 Or 491 (1977).

Reversed and remanded for a new trial.

1 The victim’s statement quoting defendant as saying, “no girl ever broke off with him without him finding out first what she was like in bed,” could be taken as a denial of prior sexual contact. No argument was made that defendant’s evidence was admissible for impeachment. See State v. Reiter, 65 Or App 304, 672 P2d 56 (1983).

2 OEC 412 provides, in pertinent part:

“(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.425, or in a prosecution for an attempt to commit such a crime, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:

“(a) Admitted in accordance with [the procedural paragraphs of this section]; and

“(b) Is evidence that:

“(A) Relates to the motive or bias of the alleged victim * * *.

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