State v. Chasteen

278 October 28, 2026 No. 1046 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JAMES PAUL CHASTEEN, Defendant-Appellant. Multnomah County Circuit Court 19CR26936; A182749 Kathleen M. Dailey, Judge. Submitted December 2, 2025. Frances J. Gray filed the briefs for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 354 Or App 278 (2026) 279 HELLMAN, J. Defendant appeals from a judgment of conviction, raising six assignments of error. First, defendant argues that the trial court erred in denying his motion to sup- press testimony from a jailhouse informant. Second, he contends that the trial court erred in admitting evidence of an uncharged “other act” under OEC 404(4). Third, he challenges the trial court’s admission of a child declarant’s hearsay statements under OEC 803(18a)(b). However, that argument is foreclosed by State v. Akins, 373 Or 476, 503-04, 568 P3d 174 (2025), and State v. Juarez-Hernandez, 316 Or App 741, 753-54, 503 P3d 487, rev den, 369 Or 856 (2022), and we reject it without further discussion. Defendant’s fourth through sixth assignments relate to the trial court’s jury instructions as to the dates that the indictment alleged that the offenses occurred “on or about,” which we explain more fully below. We find no reversible error based on the assignments of error. Therefore, we affirm. A detailed recitation of the facts would not benefit the parties, bench, or bar. In sum, after T disclosed numer- ous incidents of defendant sexually abusing her as a child, defendant was indicted on 18 felony counts. After a trial, a jury convicted him of 11 of those offenses. He was sentenced to a total of 300 months’ imprisonment, and this appeal fol- lowed. We discuss additional relevant facts in our analysis of each assignment of error. I. FIRST ASSIGNMENT OF ERROR Defendant argues that the trial court erred in deny- ing his motion to suppress the testimony of Ruple, a jailhouse informant, because the trial court incorrectly concluded that Ruple was not a state agent either under Article I, section 11, of the Oregon Constitution or the Sixth Amendment to the United States Constitution. After holding a two-day sup- pression hearing, at which the state introduced testimony from nine witnesses and documentary evidence, and mak- ing comprehensive factual and credibility findings, the trial court determined that Ruple had been acting “on his own accord” throughout his information-gathering activities. 280 State v. Chasteen We review the trial court’s denial of the motion to suppress for legal error. State v. De Witt Simons, 375 Or 70, 73, 587 P3d 311 (2026). In doing so, we accept the trial court’s implicit and explicit factual findings that are supported by constitutionally sufficient evidence, including any credibil- ity findings based on the witnesses’ presentation before the court. State v. Russum, 265 Or App 103, 120, 333 P3d 1191, rev den, 356 Or 575 (2014); State v. Criswell, 282 Or App 146, 155, 386 P3d 58 (2016). Under Article I, section 11, a person’s informant activities trigger constitutional protections if that person is “acting on behalf of the state when they gather information.” State v. Benton, 371 Or 311, 319-20, 534 P3d 724 (2023). In evaluating whether an informant acts at the state’s behest, the ultimate inquiry is “whether the state was involved enough in guiding, encouraging, or supporting the infor- mant’s activities [such] that the informant’s conduct is fairly attributable to the state,” taking into account the “objective manifestations of the state and the informant.” Id. at 323, 325. Under the federal constitution, the court considers whether the government “intentionally creat[ed] a situa- tion likely to induce [the defendant] to make incriminating statements” outside of counsel’s presence, such as through a government agent who “deliberately elicited” such state- ments. United States v. Henry, 447 US 264, 270, 274, 100 S Ct 2183, 65 L Ed 2d 115 (1980). Having reviewed the extensive record in this case in accordance with our standard of review, including copies of various emails, phone call recordings, the proffer agree- ment, the cooperation agreement, a recording of the October 13 proffer, and relevant hearing transcripts, we conclude that the trial court did not err in denying defendant’s motion to suppress because Ruple was not acting as a state agent under either the state or federal constitution at any point during his information gathering, nor was there any evidence in the record that required the court to “presume” that he was, as defendant asserts. In reaching its conclusion, the trial court permissibly made findings as to each individual state actor’s exertion of influence over Ruple, before ultimately evaluating how much Nonprecedential Memo Op: 354 Or App 278 (2026) 281 the state, as a singular and collective entity, guided Ruple’s informant activities. We find support for our conclusion in the Supreme Court’s decision in Benton, as well as our decisions in State v. Benton, 317 Or App 384, 505 P3d 975 (2022), aff’d, 371 Or 311, 534 P3d 724 (2023), and State v. Lowry, 37 Or App 641, 588 P2d 623 (1978), rev den, 285 Or 195 (1979). Randolph v. People of the State of Cal., 380 F3d 1133 (9th Cir 2004), does not undermine our conclusion under the Sixth Amendment, because the state did not indicate, through negotiations or other conduct comparable to that in Randolph, a “conscious decision” to use Ruple to elicit incriminating statements from defendant before Ruple did so. II. SECOND ASSIGNMENT OF ERROR In his second assignment of error, defendant challenges the trial court’s ruling that evidence of the uncharged “truck incident,” which allegedly was defendant’s first instance of sexually abusing T, was admissible under OEC 404(4) and OEC 403. Specifically, defendant argues that because the relevance of the “truck incident” evidence depended on propensity reasoning, it could not survive OEC 403 balancing. We disagree with defendant’s argument. In criminal cases, courts now analyze the admis- sibility of other acts of a defendant exclusively under OEC 404(4). State v. Davis, 372 Or 618, 633, 553 P3d 1017 (2024); State v. Herring, 375 Or 350, 366, 592 P3d 472 (2026).1 As relevant here, other-acts evidence is “admissible under OEC 404(4) * * * if its probative value is not substantially out- weighed by the danger of unfair prejudice under OEC 403.” State v. Reed, 348 Or App 116, 120-21, 589 P3d 1122 (2026). A court’s determination of whether the evidence’s relevance relies on propensity reasoning “can play an important role in applying the OEC 403 balancing that OEC 404(4) requires”; other-acts evidence that is offered for nonpropensity pur- poses is generally admissible, while evidence that “goes only to character * * * is more likely * * * [to] be excluded.” Herring, 375 Or at 364 (internal quotation marks omitted). 1 Although the trial court admitted the “truck incident” evidence under both OEC 404(3) (for nonpropensity purposes) and OEC 404(4) (for propensity pur- poses), in light of Davis, we consider whether the trial court erred in admitting the evidence only under OEC 404(4). 282 State v. Chasteen We review a trial court’s predicate legal determina- tion of whether evidence offered under OEC 404(4) depends on character reasoning for legal error, and a trial court’s OEC 403 balancing for abuse of discretion. Id. at 365. In this case, the trial court correctly determined that the “truck incident” evidence was relevant and admissi- ble for two nonpropensity purposes. First, the evidence was admissible to prove defendant’s sexual predisposition for T, specifically. See State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990) (evidence demonstrating a defendant’s sexual predis- position toward a specific child victim does not involve pro- pensity reasoning); State v. Goode, 335 Or App 108, 121-22, 557 P3d 1132 (2024), rev den, 373 Or 280 (2025) (applying McKay); cf. Reed, 348 Or App at 121-22 (evidence of a defen- dant’s sexual interest in children in general is propensity evidence). Second, evidence of defendant’s prior, uncharged sexual misconduct toward T was permissible to explain her delayed reporting and support her credibility. See State v. White, 293 Or App 62, 65-67, 426 P3d 203, modified on recons, 294 Or App 780, 431 P3d 104 (2018), rev den, 364 Or 294, and rev den, 364 Or 535 (2019) (evidence of prior uncharged sexual misconduct toward a victim can permissibly “corrobo- rate[ ] the victim’s version of events through a nonpropensity inference: that the victim had not later fabricated the abuse but had delayed reporting it because of the circumstances surrounding reporting of defendant’s previous abuse”). Because the “truck incident” evidence was relevant for nonpropensity purposes, the trial court did not abuse its discretion in conducting its OEC 403 balancing. See State v. Estrada-Vargas, 342 Or App 374, 378-79, 576 P3d 985 (2025), rev den, 374 Or 698 (2026) (“[T]he court, in its discretion, may admit evidence that does not primarily or substantially derive its relevance from character-based propensity reasoning.”). III. FOURTH THROUGH SIXTH ASSIGNMENTS OF ERROR Defendant’s three remaining assignments of error all relate to the trial court’s jury instructions as to the dates that the indictment alleged that the offenses occurred “on or about.” Nonprecedential Memo Op: 354 Or App 278 (2026) 283 A. Fourth Assignment of Error In his fourth assignment of error, defendant argues that the trial court erred in refusing to instruct the jury that, for the purposes of proving that each crime occurred “on or about” the date alleged in the indictment, “[i]t is suffi- cient if the state establishes that the crime, if any, occurred within a week” of that date. “We review a trial court’s refusal to give a defen- dant’s requested jury instruction for legal error and assess the evidence in the light most favorable to the party offering the jury instruction.” State v. Strye, 273 Or App 365, 368, 356 P3d 1165 (2015) (internal quotation marks omitted). In general, “a criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evi- dence to support giving it.” State v. Labossiere, 307 Or App 560, 565, 477 P3d 1 (2020). Thus, legal error occurs when the court refuses to give an instruction that is “legally correct in all respects” and where the existing instructions “do not fully cover a necessary legal point.” State v. Worsham, 373 Or 739, 748, 571 P3d 759 (2025), modified on recons, 374 Or 781, 583 P3d 1042 (2026). We understand defendant to argue that his requested instruction, which he characterizes as defining and condoning no more than a one-week variance, was nec- essary to protect him against a prejudicial variance. See State v. Stavenjord, 290 Or App 669, 672-73, 415 P3d 1143, rev den, 363 Or 481 (2018) (defining “variance”); Benton, 317 Or App at 399 (explaining that a variance is impermissible if it is prejudicial); see also State v. Ribas, 374 Or 750, 772-73, 583 P3d 1019 (2026) (discussing variance in the context of “on or about”).2 However, at various points within his plead- ings and during hearings, defendant suggested that a vari- ance of up to two weeks or even one month would also be sufficient to avoid prejudicing his defense theory. Thus, by defendant’s own admissions, which he does not address on appeal, a variance of one week or less was not necessary to 2 Although both briefs argue at length whether there was a variance, and whether that variance was impermissibly prejudicial, resolving defendant’s assignments of error does not require us to definitively resolve those issues. 284 State v. Chasteen his theory of defense. On that basis alone, we conclude that the trial court did not err in refusing to provide defendant’s requested instruction. B. Fifth Assignment of Error Defendant also claims that the trial court erred when it, in effect, instructed the jury only as to the first sen- tence of Uniform Criminal Jury Instruction 1026 (the stan- dard “on or about” instruction). Defendant takes the position that that “modified” jury instruction functionally and imper- missibly amended the indictment. State v. Guckert, 260 Or App 50, 57, 316 P3d 373 (2013), rev den, 354 Or 840 (2014) (explaining that a jury instruction can functionally amend an indictment). We disagree with defendant’s argument. When evaluating whether the trial court erred in giving a particular instruction, “we review the instructions as a whole to determine whether they accurately state the law,” State v. Berry, 293 Or App 717, 720, 429 P3d 1011 (2018) (brackets omitted), or “mislead[ ] or confuse[ ] the jury,” Purdy v. Deere & Co./Norton, 311 Or App 244, 257, 492 P3d 99, rev den, 369 Or 110 (2021). Our review is for legal error. Guckert, 260 Or App at 57. The provided “on or about” jury instruction, which omitted any reference to a timeframe within which it would have been sufficient for the state to establish that the offense occurred, was fully consistent with the language in the indict- ment and therefore did not amend the indictment. And as a whole, the jury instructions correctly conveyed the state’s burden to prove, beyond a reasonable doubt, that the relevant conduct occurred “on or about” the dates alleged in the indict- ment and did not risk misleading or confusing the jury. C. Sixth Assignment of Error In his sixth assignment of error, defendant argues that the trial court erred in sustaining the state’s objection to defense counsel’s attempt to define “on or about” as “close in time” during closing argument.3 We disagree with defen- dant’s argument. 3 Based on our review of the record, we understand that the trial court issued an initial ruling, in defendant’s favor, on the “on or about” issue via an email sent to the parties, after which the state filed a motion for reconsideration and Nonprecedential Memo Op: 354 Or App 278 (2026) 285 “We review a trial court’s decisions regarding con- trol of jury argument for an abuse of discretion.” Cler v. Providence Health System-Oregon, 349 Or 481, 487, 245 P3d 642 (2010). “[A] trial court may abuse its discretion if its deci- sion is based on predicate legal conclusions that are errone- ous,” Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 117, 376 P3d 960 (2016), or if “the decision reached was clearly against reason and evidence,” State v. G. N., 230 Or App 249, 255, 215 P3d 902 (2009) (internal quotation marks omitted). The trial court did not abuse its discretion in sus- taining the prosecutor’s objection, because defense counsel’s closing argument encroached upon the exclusive province of the court to instruct the jury on the law. See Worsham, 373 Or at 744 (“Only the court should instruct the jury on the law.”). Of course, defense counsel was “free to argue how the facts in their case d[id]—or d[id] not—meet the standard of the law.” Id. at 744 (emphasis added); see also Cler, 349 Or at 487 (describing counsel’s “large degree of freedom” to comment on the evidence during closing argument). However, defense counsel strayed into improper argument when he defined “on or about” in a manner that diverged from how the court had instructed the jury on the law; specifically, by stating that “[o] n or about still means close in time.” See Worsham, 373 Or at 744 (explaining that counsel may not “instruct the jury on the law in a way that differ[s] from the trial court’s instruction,” including by defining or colloquializing a particular term). Assuming without deciding that “close in time” cor- rectly defines “on or about,” see, e.g., Ribas, 374 Or at 772-73; Black’s Law Dictionary 1310 (12th ed 2024), defense coun- sel’s argument nevertheless improperly usurped the trial court’s role to provide that definition to the jury in the first instance. Cf. Worsham, 373 Or at 744 (holding that the pros- ecutor’s closing argument was improper because it sought to define the term “initial aggressor,” which the trial court had not defined for the jury). Therefore, the trial court did not abuse its discretion in sustaining the prosecutor’s objection. Affirmed. defendant filed a response to that motion. Neither the email containing the orig- inal ruling nor the state’s motion for reconsideration appear to be in the record. We note that our disposition of this appeal was limited by the incomplete record, as well as by what defendant assigned—and did not assign—error to.