State v. Champagne

The court’s balancing fell within the permissible range of the court’s discretion, particularly in light of the state’s need to cross-examine Bourg, the limitations imposed on B’s testimony, and the use of a limiting instruction. See Powers, 323 Or App at 567-68 (holding that, in light of the LeMay factors, the court acted within its discretion to admit evidence of past abuse to show sexual purpose).

Defendant was convicted of sexual offenses against children under the age of twelve. Defendant assigned error to the admission of evidence that he had previously sexually assaulted another child when it failed to strike the testimony of one of the children. Second, the court failed to strike mother's testimony that constituted impermissible vouching. Third, the court amended the judgment without written notice. Regarding the first assignment of error defendant argued the trial court erred in admitting evidence of his sexual abuse of B under either OEC 404(3) or OEC 404(4). The state did not attempt to defend the trial court’s reasoning under OEC 404(3). The court reasoned that evidence of prior sexual abuse of a child is admissible under OEC 404(3) for a nonpropensity purpose. State v. Powers, 323 Or App 553, 563-64, 523 P3d 1112 (2023).The Court held that the trial court’s balancing fell within the permissible range of the court’s discretion. Second, the Court held that the trial court did not commit plain error by not interjecting and striking mother’s testimony. Lastly, the court held that the trial court erred in amending the judgment but held that the error was harmless because the court was required by law to impose 25 years on each count. AFFIRMED.