State v. Martinez

No. 759              October 30, 2024                   643

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
           ROBERTO SANTIAGO MARTINEZ,
                 Defendant-Appellant.
            Washington County Circuit Court
                 19CR03333; A178640

  Theodore E. Sims, Judge.
  Argued and submitted September 18, 2023.
   David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Patrick M. Ebbett, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and David B. Thompson, Assistant Attorney General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Reversed and remanded.
644                                                   State v. Martinez

          ORTEGA, P. J.
          This case is before us for a second time on defen-
dant’s appeal from a judgment convicting him of one count
of first-degree sexual abuse, ORS 163.427, after a jury found
him guilty of fondling the breasts of B, a child under the age
of 14. On his first appeal, we held that the trial court erred
in admitting, under OEC 404(3), evidence of defendant’s
prior sexual abuse of a different minor victim, C, because
it was propensity evidence. State v. Martinez, 

, 

 (2021) (Martinez I). We reversed and
remanded for “the trial court to determine ‘whether, after
conducting a correct analysis under OEC 404 and OEC 403,
other acts evidence should again be received and whether a
new trial is required or appropriate.’ ” 

 (quoting State v.
Baughman, 

, 

 (2017)).
         Defendant now assigns error to the trial court’s rul-
ing on remand to again admit the evidence of defendant’s
prior sexual abuse of C, this time under OEC 404(4) and
after conducting OEC 403 balancing.1 Applying the frame-
work set forth in State v. Davis, 

, 

(2024) (Davis III), we conclude that the trial court abused its
discretion in admitting the evidence because, viewed in toto,
its probative value was substantially derived from charac-
ter and character-based propensity reasoning. We therefore
reverse and remand for a new trial.
         HISTORICAL AND PROCEDURAL FACTS
         In August 2017, when B was 11 years old, she stayed
overnight at defendant’s house to celebrate his daughter’s
birthday, and the two girls slept in the same bed in his daugh-
ter’s bedroom. Early the next morning, defendant came into
the room while the girls were still sleeping. According to B,
defendant began rubbing her leg, then her stomach under
her pajamas, and then groped her bare breasts for about
10 minutes while she lay there paralyzed with fear. Once
the alarm went off, defendant quickly stopped, said good
morning to the girls, and acted like nothing had happened.
B reported the abuse to both of defendant’s daughters that

    1
      The trial court accordingly ruled that a new trial was not necessary and
reentered the judgment of conviction.
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morning and later to her best friend and to her mother, but
B and her mother did not contact the police out of concern for
defendant’s daughters. Just over a year later, in September
2018, B disclosed the abuse to a school counselor and again
during a CARES Northwest interview.
         Defendant was arrested in September 2018 for sex-
ually abusing a different child, C. That December, Detective
Rookhuyzen interviewed defendant about B’s allegations.
Defendant said that he did not specifically remember B or
the sleepover for his daughter’s birthday and that B may
have been abused by someone else or may have misinter-
preted him when he touched and shook the girls to wake
them up. In early 2019, a grand jury indicted defendant
for one count of first-degree sexual abuse, alleging that he
“did unlawfully and knowingly subject [B], a child under 14
years of age, to sexual contact by touching her breast(s)[.]”
         Defendant moved pretrial to exclude, under OEC
404 and OEC 403, evidence of any prior arrests, criminal
convictions, and accusations of sex abuse against him aside
from the charged conduct. In response, the state sought
to admit certain other-acts evidence under OEC 404(3) to
prove defendant’s motive and to prove that he touched B
with a sexual purpose; it alternatively sought to admit the
evidence under OEC 404(4).
         First, the state sought to admit C’s testimony that
she is the daughter of defendant’s cousin; that defendant
began sexually abusing her when she was 11 years old and
he “would come around at night and sneak into her room”;
that it began with defendant “rubbing her legs and stom-
ach over her clothes and progressed to touching her private
areas, under her clothes, and later to oral, anal, and sexual
intercourse”; that the abuse continued for years and culmi-
nated in C giving birth to defendant’s child in October 2017
when C was 15 years old; and that defendant admitted that
he was the father of C’s child. Second, the state sought to
introduce defendant’s statement to Rookhuyzen character-
izing his sexual abuse of C as a “relationship.”2
     2
       The state also sought to introduce the testimony of C’s older sister, F, that
defendant sexually abused F multiple times between ages 7 and 15, when the
family lived in Mexico and after they moved to Oregon. The trial court excluded
C’s testimony as “stale in time and geographically disparate and debatable.”
646                                              State v. Martinez

         The trial court admitted the other-acts evidence
relating to C under OEC 404(3):
       “THE COURT: [T]he evidence of the abuse [of C] is
   undeniable. [Defendant] had a child born as a result of the
   type of conduct that’s alleged is * * * quite similar enough
   to do it [sic]. The [s]tate has an obvious need for it. I recog-
   nize that there’s a fair amount of prejudice in terms of the
   impact the evidence is likely to have on the jury, but I don’t
   think it’s going to distract them from their ability to focus
   on the conduct that’s alleged here.
       “In other words, I’m not concerned that they’re going to
   convict him of this absent evidence that he committed the
   alleged offense here because of prior incidences. I think the
   jury should be relatively sophisticated in that regard.
      “So on a 403 balancing test, I think the probative value
   exceeds the prejudicial effect. And I think there is a non-
   propensity need for the [s]tate to have this evidence in. So
   unless either side wants me to get into the 404[(4)] area, I
   don’t think I need to.”
         At trial, Rookhuyzen testified that defendant char-
acterized his abuse of C as a “relationship” and, additionally,
that he had questioned defendant about his “specific attrac-
tion to young girls” and “the previous case [Rookhuyzen]
investigated [that] involved, you know, [defendant] impreg-
nating a 14-year-old cousin.” C testified that she was 17
years old and lived with her parents, her cousins—defen-
dant’s daughters—and her daughter, whom she had given
birth to at age 15. C further testified that she was 11 or 12
years old when defendant began touching her inappropri-
ately, that the abuse happened at defendant’s house and, at
times, when she and her brother were sleeping on the floor
together and defendant’s daughters were asleep in a bed
in the same room. Finally, C testified that the abuse pro-
gressed over several years to sexual intercourse, resulting
in the conception of her daughter.
         Before closing arguments, the trial court instructed
the jury that it could use the other-acts evidence related to
C for the limited purpose of “whether that evidence demon-
strates that the [d]efendant has a sexual interest in children
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and whether the [d]efendant acted on the interest as to the
charged offense.”3
         In closing argument, the state referred to C’s testi-
mony and the court’s limiting instruction and argued that
“you’re not allowed to say, ‘Oh, you know, he had a child with
a 15-year-old, he must’ve done this [to B],’ ” and that “just
because someone did it once, doesn’t mean you get to say
they did it this time,” but instead that “you may take that
evidence into consideration when you’re trying to decide
does that demonstrate—does he have a sexual interest in
children and whether he acted on that interest in this case
with [B].” In rebuttal argument, the state again referenced
the evidence that defendant fathered C’s child and argued
that the jury could consider that evidence to determine that
defendant was “a man willing to prey on a vulnerable victim
he had access to, a child who – an[ ] 11-year-old who is stuck
at his house” and that defendant “was a man who acted on
his impulse, who violated this vulnerable victim.” The jury
found defendant guilty.
         As noted, on defendant’s first appeal, we held that
the trial court erred in admitting, under OEC 404(3), evi-
dence of defendant’s prior sexual abuse of C, because that
evidence was propensity evidence, and we reversed and
remanded for the trial court to reconsider its ruling under
the correct legal framework. Martinez I, 

.
        On remand, the parties submitted additional brief-
ing on the admissibility of evidence relating to defendant’s
sexual abuse of C. The state argued that the evidence
“speaks to [ ] defendant’s sexual interest in children” and
was relevant and admissible under OEC 404(4) as articu-
lated in State v. Williams, 

, 

 (2015):

   3
       The court’s limiting instruction provided in full:
       “In considering the evidence in this case, you must give individual consider-
   ation to the charged offense. You must not use evidence relating to prior sexual
   contact with a minor for the purpose of concluding that because the [d]efendant
   may have sexually abused [C], he is guilty of sexually abusing [B] in this case.
       “If, however, you conclude that the [d]efendant did commit a sexual crime
   against [C], then you may take such evidence into consideration when decid-
   ing whether that evidence demonstrates that the [d]efendant has a sexual
   interest in children and whether the [d]efendant acted on the interest as to
   the charged offense.”
648                                            State v. Martinez

“If the jury inferred from the [ ] evidence that defendant
had a sexual interest in children generally, then the jury
could take defendant’s interest into consideration in decid-
ing whether defendant had acted on that interest and with
that purpose on the charged occasion.” 

. The state
further argued that the court had “already engaged in the
relevance and unfair prejudice analysis” under OEC 403
and had “already properly found that the evidence related to
the sexual abuse of [C] is relevant under [OEC] 401 and not
unduly prejudicial under [OEC] 403,” “that the [s]tate’s need
for the evidence was high[,] and that the jury would not be
unfairly prejudiced by its introduction.” The state urged the
court to “continue those findings and additionally find that
the propensity evidence is admissible under OEC 404(4) and
Williams[.]”
         Defendant responded that the evidence should be
excluded, and a new trial ordered, because the evidence
“derive[s] its relevance from [ ] defendant’s character” and
should therefore “generally be inadmissible under OEC 403”
as explained in Williams, 

. Defendant fur-
ther argued that the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice
that inheres in admitting propensity evidence, as explained
in State v. Skillicorn, 

, 

 (2021).
        The trial court ruled that the other-acts evidence
relating to defendant’s sexual abuse of C was relevant and
admissible under OEC 404(4), that its probative value was
not substantially outweighed by the danger of unfair preju-
dice under OEC 403, and that a new trial was not necessary:
       “THE COURT: I am finding that the evidence pertain-
   ing to the activities or the actions the defendant took with
   regards to [v]ictim C are admissible under [OEC] 404(4). I
   am also completing the analysis I did under [OEC] 403, the
   relevancy, the probative value versus the prejudicial effect.
   The state’s need for this evidence, since they have to prove
   that the touching of the victim in this case was done for a
   sexual purpose, the state has a high need—
      “* * * * *
      “The quality of that evidence is solid because the prior
   touching resulted in the birth of a child with an underage
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   victim of that abuse. So that evidence has an exceptionally
   high probative value on the question of the defendant’s sex-
   ual interest in children.
       “And it is precisely because of the high probative value
   of that evidence that it logically would be prejudicial to the
   defendant, but that prejudice is not in any way, shape, or
   form outweighed by the probative value, and it is not unfair.
      “So balancing the state’s need for that evidence against
   the danger of unfair prejudice, which I find that danger to
   be low, the evidence offered by the state of the defendant’s
   prior conduct with respect to [v]ictim C is admissible and
   would be admissible in the event of a retrial, which I there-
   fore find to be unnecessary.”
Defendant timely appeals.
                       LEGAL FRAMEWORK
         The admissibility of other-acts evidence is governed
by OEC 404(3)4 and OEC 404(4).5 OEC 404(3) prohibits the
use of other-acts evidence to show that the act is indicative
of a character trait and that the person is likely to have
acted in conformity with that character trait during the
events at issue at trial (i.e., the person’s propensity). Davis
III, 

. OEC 404(3)’s prohibition on charac-
ter evidence also extends to propensity reasoning, viz., when
the proponent’s theory of relevance requires the factfinder
to rely on an inference about the person’s bad character and
resultant propensity to commit criminal acts at any link in
the chain of logical relevance. 

 (discussing State v.
   4
     OEC 404(3) provides:
       “Evidence of other crimes, wrongs or acts is not admissible to prove the
   character of a person in order to show that the person acted in conformity
   therewith. It may, however, be admissible for other purposes, such as proof
   of motive, opportunity, intent, preparation, plan, knowledge, identity, or
   absence of mistake or accident.”
   5
     OEC 404(4) provides:
       “In criminal actions, evidence of other crimes, wrongs or acts by the
   defendant is admissible if relevant except as otherwise provided by:
       “(a) [Certain other rules of evidence] and, to the extent required by the
   United States Constitution or the Oregon Constitution, [OEC 403];
       “(b) The rules of evidence relating to privilege and hearsay;
       “(c) The Oregon Constitution; and
       “(d) The United States Constitution.”
650                                                        State v. Martinez

Jackson, 

, 

 (2021)). “If character
and propensity reasoning is necessary, in any amount, to
establish relevance and connect the other act to the issues
at trial, OEC 404(3) requires its exclusion.” 

         However, “the legislature intended OEC 404(4) to
supersede OEC 404(3) in criminal cases, except, of course,
as otherwise provided by the state or federal constitutions.”
Williams, 

.6 And because OEC 404(4) provides
simply that, in criminal cases, evidence of “other crimes,
wrongs or acts” by the defendant generally is admissible if it
is relevant, it “does not require the state to prove to the court
that other acts evidence is offered for a purpose other than
to prove character or that the relevance of that evidence does
not rely on propensity reasoning.” Davis III, 

.
          There are two primary constraints on the admis-
sibility of other-acts evidence under OEC 404(4). First, the
evidence must be logically relevant under OEC 401—it must
have any tendency to make the existence of any fact that is
of consequence to the determination of the action more or
less probable. 

 (discussing Williams, 

). Second,
the trial court must conduct OEC 403 balancing “accord-
ing to its terms” before admitting the evidence, meaning
it “must exclude even relevant evidence under OEC 404(4)
when, in the exercise of its discretion, it determines that the
probative value of the evidence is substantially outweighed
by the danger of unfair prejudice.” Id. at 633-34 (discussing
Baughman, 

).7
     6
       The court later clarified in Baughman that OEC 404(4) supersedes OEC
404(3) in criminal cases only to the extent that the evidence is offered to prove
the defendant’s character. 

 (“If other acts evidence is not proffered to
prove a defendant’s character, but instead is offered for a nonpropensity purpose,
then analysis under OEC 404(4) is unnecessary; the evidence ‘may be admissi-
ble’ [for a permissible nonpropensity purpose] under the second sentence of OEC
404(3).”). However, Davis III retreated from that approach and instead explained
that “in criminal trials in Oregon, the applicable subsection of OEC 404 that
applies to acts of a defendant offered in a criminal trial is OEC 404(4), not OEC
404(3).” 

 (footnote omitted); see also 

 (noting that “OEC
404(3) is no longer technically controlling of other acts of a defendant in a crimi-
nal trial”).
     7
       Baughman also clarified that OEC 404(4)(a) and OEC 404(4)(d) provide
independent bases for excluding other-acts evidence: as an exercise of discretion
after OEC 403 balancing according to its terms, and as a matter of law when the
evidence would render a trial fundamentally unfair in violation of due process,
respectively. 

.
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         “OEC 403 balancing must be conducted to pre-
clude the admission of ‘concededly relevant evidence’ that
has the capacity ‘to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense
charged.’ ” Baughman, 

-03 (quoting Old Chief
v. United States, 

, 

, 

 (1997)). A court conducting OEC 403 balancing of OEC
404(4) other-acts evidence should consider where the evi-
dence falls on a “spectrum depending on whether character
reasoning is present and how it is used.” Davis III, 

 (discussing Baughman, 261 Or at 405, and Williams,

). Accordingly, whether other-acts evidence
is relevant for a propensity or a nonpropensity purpose “will
have a significant effect” on whether the trial court admits
the evidence. 

 at 635 (quoting Baughman, 261 Or at 405).
        In Williams and Baughman, the Supreme Court
announced the general framework for admissibility of other-
acts evidence under OEC 404(4) after OEC 403 balancing.
But it was not until recently, in Davis III, that the court
provided specific guidance on how to assess the relative
probative value and danger of unfair prejudice of other-acts
evidence and a trial court’s range of discretion under that
framework. We therefore discuss Davis III in some detail.
         The defendant in Davis III was charged with
attempted first-degree sexual abuse for attacking a woman,
a complete stranger who was jogging by him. 

.
To prove that the defendant intended to sexually assault
the victim, the state sought to introduce evidence of “highly
offensive, sexually explicit notes” that the defendant had
previously written and delivered to two other women whom
he did not know in the weeks preceding the charged attack
that “expressed his desire to forcibly sexually assault the two
women.” 

 The issue on review was whether the trial court
had correctly ruled, after remand, to admit the notes evi-
dence under OEC 404(4) after OEC 403 balancing. 

.
        The court first defined probative value and unfair
prejudice in the context of OEC 403: “Probative value is
essentially a measure of the persuasiveness that attaches
to a piece of evidence,” and “unfair prejudice” means that
the evidence has “an undue tendency to suggest decisions on
652                                            State v. Martinez

an improper basis, commonly although not always an emo-
tional one.” 

 (internal quotation marks and cita-
tions omitted).
          The court then explained that determining “the
degree of character-based reasoning that is present” in the
proponent’s theory of relevance “is central to performing the
OEC 403 balancing of evidence admitted under OEC 404(4)”
contemplated by the spectrum of relative probative value
and danger of unfair prejudice first described in Williams.

. To properly assess where on the Williams
spectrum the evidence falls, a court is “advised to determine
whether other acts evidence that is being offered under OEC
404(4) is either explicitly, or by inference, evidence of char-
acter and whether propensity reasoning is at play.” 

; see also 

 (“[T]o properly assess the probative
value and prejudicial effect of the [other acts] evidence, we
are called upon to decide the relative value of that degree—
that is, to what degree is character, or propensity reasoning,
present here? Does the relevance of the [other-acts] evidence
derive primarily or substantially from character, or does
the relevance of the [other-acts evidence] derive primarily
or substantially from a noncharacter source?”). The court
explained:
   “Williams described the two ends of the spectrum but did
   not expressly discuss what types of evidence fall between
   those poles. Given how this court described the ends of
   the spectrum, however, it follows that the middle of that
   spectrum consists of evidence where character reasoning
   may be implicit to some degree, or where, despite a non-
   character purpose being offered by the proponent of the
   evidence, a jury or factfinder could perceive the evidence
   as relying on character and action in conformity with char-
   acter as its source of relevance to the trial. This potential
   for admission, subject to OEC 403 balancing, of character
   and character-based propensity reasoning, to some degree,
   is the essence of the change wrought by OEC 404(4).”

 (emphases in Davis III).
         Next, the court explained that “assessing other
acts evidence may require parsing of the ‘act’ into its con-
stituent parts to assess which aspects go to establish char-
acter, as opposed to noncharacter,” and that such parsing
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also “facilitates discussion amongst the court and the par-
ties about potential redactions or limiting instructions to
minimize problems associated with the proffered evidence.”

 at 637 n 11. Applying that framework to the notes evi-
dence in that case, the court found “it useful to consider two
aspects of the notes’ evidentiary value,” their contents and
their placement, in order “[t]o tease out the relative degree
to which character may be present.” Id. at 637-39.
         The contents of the notes were the defendant’s state-
ments and therefore “direct evidence of [the] defendant’s
thoughts, desires, and intentions” and not evidence that
“establishes that [the] declarant has a particular character.”
Id. at 638. Accordingly, “[t]he primary inference created by
the content of the notes is the noncharacter-based infer-
ence that [the] defendant—having repeatedly, and within
a short period, intentionally and deliberately expressed,
without ambiguity, his intent to violently sexually assault
strangers—possessed the same continuous intent when he
assaulted the victim in this case mere weeks later.” Id. at
639.
         Turning to the placement of the notes—on the
windshields of vehicles, parked in public places, belonging to
women whom the defendant did not know—the court did “not
foreclose that a jury could also, and at the same time, see the
notes as evidence of [the] defendant’s character” because “the
state was implicitly asking a factfinder to infer that [the]
defendant had observed strange women, knew their vehicles,
and targeted them based on their appearance.” Id. at 639-40.
Viewed through that lens, the notes were also “indicative of
his character and actions in conformity with character: that
[the] defendant stalked strangers in the past, has the char-
acter of a stalker of strangers, and now, in this case, acted in
conformity with that character by stalking the victim here,
who was a stranger to him.” Id. at 640.
         Ultimately, while “the contents and placement of
the notes, viewed in toto, could be seen as potentially invok-
ing character as the link to establish relevance,” the court
concluded that “[t]he relevance of the notes primarily or sub-
stantially is derived from their contents,” which are “expres-
sions of continuous intent, not character.” Id. at 640.
654                                        State v. Martinez

         Assessing the probative value of the notes’ con-
tents, the court concluded that they were “highly probative”
because, as “direct expressions of [the] defendant’s intent,”
they described, “in [his] own words, his desire to engage
in violent sexual acts with strangers”—the proposition the
state sought to prove in the charged offense—and because
the statements were repeated over weeks, written and
unambiguous, and intentionally made. Id. at 640-41.
         Assessing the danger of unfair prejudice of the
notes as a whole, the court observed that the highly proba-
tive nature of the notes’ contents was prejudicial, but not
unfairly so, and that, “even if the notes are reliant on some
degree o[n] character, that degree is marginal, and char-
acter is certainly not the primary or substantial source of
their relevance.” Id. at 641. Further, the trial court “took
numerous actions to mitigate any unfair prejudice, includ-
ing redacting some of the most incendiary wording from the
notes to limit their inflammatory effect, limiting the state’s
use of the notes evidence, and giving the jury a limiting
instruction.” Id.
         Finally, the court reiterated that OEC 403 “favors
admissibility, but ultimately is discretionary” and that “the
question is whether, on this record, admission of the evi-
dence was one—among multiple—legally permissible out-
comes.” Id. The court then held that “because the primary
or substantial value of the notes was not derived from char-
acter, or character-based propensity reasoning, declining to
exclude the evidence under OEC 403 was within the permis-
sible range of the trial court’s discretion.” Id. at 642.
         We understand Davis III to set forth the following
legal framework for admitting other-acts evidence under
OEC 404(4) and OEC 403. First, the court should parse the
other “acts” into constituent parts, where possible, to aid in
determining the degree of character present in the propo-
nent’s theory of relevancy. Second, the court should consider
the probative value of each constituent part of the evidence
to determine whether its relevance relies on character rea-
soning expressly or by implication. Third, the court, in its
discretion, may admit evidence that does not primarily or
substantially derive its relevance from character-based
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propensity reasoning. Finally, whether a court acts within
its permissible range of discretion to admit such evidence
may depend on whether the court took action to mitigate any
unfair prejudice, such as redacting inflammatory details,
limiting the state’s use of the evidence, and instructing the
jury on how it may consider the evidence.
                                 ANALYSIS
         Returning to the present case, the state offered
other-acts evidence of defendant’s prior sexual abuse of
C under Williams to establish an element of the charged
offense, viz., that defendant subjected B to “sexual contact”
when he touched her breasts, meaning that he did so “for the
purpose of arousing or gratifying [his] sexual desire.” See
ORS 163.427(1)(a) (an element of first-degree sexual abuse
is subjecting the victim to “sexual contact”); ORS 163.305(5)
(defining “sexual contact”). Again, Williams described the
logical chain of relevance for such “sexual purpose” evi-
dence as follows: “If the jury inferred from the [other-acts]
evidence that defendant had a sexual interest in children
generally, then the jury could take defendant’s interest into
consideration in deciding whether defendant had acted on
that interest and with that purpose on the charged occa-
sion.” 

.
        Williams did not expressly characterize “sexual pur-
pose” evidence as propensity evidence and instead empha-
sized the permissible ultimate inference it established,
that the defendant acted with a sexual purpose within the
meaning of the element of sexual contact.8 However, we
     8
       Williams identified a second ultimate inference that may be drawn from a
defendant’s sexual interest in children generally, i.e., that the defendant “acted
on that interest * * * on the charged occasion.” See also 

 (“The fact that defen-
dant has a sexual interest in children would not, alone, establish that defendant
acted on that interest in the charged circumstances, but it is a fact that is log-
ically relevant to that issue.”); see also 

 (emphasizing that one reason that
there is a “slim but distinct difference between using the [other-acts] evidence to
establish defendant’s character and propensity to act accordingly, and offering
that evidence to establish defendant’s sexual purpose” is that “[t]he state did
not offer the evidence to establish that defendant committed the charged acts”).
We understand that theory of relevancy, in which other-acts evidence is offered
to prove that the defendant committed the act charged in the offense, to be an
impermissible propensity purpose. See Skillicorn, 

 (explaining
that evidence that a defendant “had acted a certain way during a prior incident”
offered to prove that he “acted in a similar way during the charged incident”
656                                                          State v. Martinez

have since held that evidence of a defendant’s prior sexual
misconduct involving a different victim offered to prove the
defendant’s sexual purpose in the charged conduct is pro-
pensity evidence because it relies on propensity reasoning.
State v. Cave, 

, 

 (2022) (“[I]f the
state’s theory of admissibility requires the factfinder to infer
from defendant’s prior actions that he was more likely to
have acted with the same purpose in the charged instance,
that evidence is propensity evidence[.]”); State v. Nolen, 

, 

 (2022) (holding that sexual
purpose evidence relies on propensity reasoning when the
state’s theory of relevance requires the jury to infer that the
defendant’s prior similar sexual abuse of a different victim
proves that the defendant acted with a sexual purpose in
the present case).. And in Martinez I, we held that the other-
acts evidence at issue in this case is propensity evidence. 

 (“[W]e agree * * * that the other-acts evidence
concerning defendant’s conduct toward C was ‘propensity
evidence.’ ”).9
was propensity evidence because the evidence used the defendant’s character “to
prove that he acted in conformance therewith”); State v. Terry, 

, 

 (2021) (error in admitting inflammatory evidence to prove the
defendant’s sexual purpose was harmful because there was “some likelihood that
the jury relied on that evidence in finding that [the] defendant committed the
charged conduct”).
     9
        We note that Davis III may call into question our conclusion that “sexual
purpose” evidence categorically is propensity evidence. In State v. Davis, 

, 

 (2018) (Davis I), we concluded that the notes were
propensity evidence because the state’s theory of relevance depended on a pro-
pensity inference:
     “[T]o conclude that the same motive that drove [the] defendant to leave sex-
     ual notes for two female strangers also induced him to sexually assault a
     third person on a different occasion, one must draw the intermediate infer-
     ence that the desire expressed in the notes was not personal to the recipients
     but, rather, was reflective of a general desire for violent sexual gratification.”
We described that intermediate inference as dependent “upon the existence of
a persistent trait intrinsic to [the] defendant,” namely, “an interest in sexually
assaulting any female stranger” that “persists in varying situations throughout
life[.]” 

 (emphasis in original; internal quotation marks and citation omitted).
     However, in Davis III, the court cautioned that conceptualizing “every act [as]
an act of character—the character of a person who would engage in that act * * *
improperly injects character where it does not exist.” 

. And, contrary
to our conclusion in Davis I, the court concluded that the notes were “admissions
that [the defendant] desired to sexually assault multiple strangers in the weeks
preceding the attack,” which was “certainly evocative of probabilistic reasoning”
but stemmed from “defendant’s own admissions, not his character.” 

(emphasis in original).
Cite as 

 (2024)                                                     657

         Having concluded that the other-acts evidence
relating to defendant’s sexual abuse of C relies on character
and propensity reasoning, we nonetheless proceed to apply
the Davis III framework: to assess the evidentiary value of
the other-acts evidence of defendant’s prior sexual abuse of
C in establishing defendant’s sexual purpose in the charged
offense, and to determine the degree of character reasoning
present in the state’s theory of relevancy. To aid that deter-
mination, we find it useful to divide the evidence into the
following conceptual parts: (1) the abusive conduct, and (2)
the context of the abuse.
         We first consider the probative value of the prior
abusive conduct to determine whether its relevance relies on
character reasoning expressly or by implication. The eviden-
tiary value of defendant’s prior abuse of C primarily derives
from the nature of the abusive conduct itself: that defen-
dant engaged in sexual contact with a girl beginning when
she was 11 years old and continuing until she was 15 years
old is highly probative of his sexual interest in young girls
generally, which we understand to establish defendant’s
sexual predisposition or character. The evidence makes it
more probable that defendant had a sexual interest in B,
an 11-year-old girl at the time of the charged offense, and,
therefore, that he acted with a sexual purpose in commit-
ting the offense. Further, that defendant’s abuse of C began
as inappropriate touching and progressed, over four years,
to sexual penetration establishes that defendant’s conduct
was repeated, unambiguous, and intentional. Those infer-
ences support the state’s theory that defendant acted with a
sexual purpose in the charged conduct and not, as he stated
to Rookhuyzen, with the intent to simply wake B from slum-
ber. In addition, defendant’s abuse of C occurred close in
time to the charged abuse of B, which makes it more likely
that his sexual interest in children was ongoing. However,

     Here, the state expressly relied on the theory of relevance articulated in
Williams when it offered evidence of defendant’s prior sexual abuse of C to establish
defendant’s “sexual purpose” in the charged sexual abuse of B. We understand the
Williams theory of relevance to explicitly, and necessarily, rely on an intermediate
character inference, i.e., that a defendant has a sexual interest in children generally,
and to employ propensity reasoning, i.e., that the defendant’s sexual predisposition
makes it more likely that they acted with a sexual purpose in the charged offense. It
is therefore unnecessary in this case to reconcile those cases with Davis III.
658                                         State v. Martinez

although the state did not offer it for that purpose, the jury
could also see defendant’s repeated and escalating abuse of
C as establishing that he is a sexual predator who targets
children.
         Next, we consider the probative value of the context
of abuse in establishing defendant’s sexual purpose in the
charged offense. It is difficult to discern how C’s familial
relation to defendant supports the proposition that defen-
dant acted with a sexual purpose in the charged offense
given that B is not a member of defendant’s family. It is,
however, readily apparent how that fact supports an extraor-
dinarily negative character inference about defendant as a
person. Further, it is difficult to discern how the setting of
the abuse—that it occurred in defendant’s home, with oth-
ers sleeping nearby—establishes that defendant acted with
a sexual purpose in the charged offense absent some indi-
cation that the setting bears on defendant’s sexual gratifi-
cation in some way. But it is more readily apparent that it
establishes defendant’s propensity to act on his sexual pre-
disposition towards children. Indeed, that that contextual
evidence establishes that defendant opportunistically acts
on his sexual interest in children is evident in how the state
used it: to argue to the jury in rebuttal that defendant is “a
man willing to prey on a vulnerable victim he had access to,
a child who – an[ ] 11-year-old who is stuck at his house.”
         Finally, we consider the probative value of the evi-
dence that defendant’s abuse resulted in him fathering
C’s child in establishing defendant’s sexual purpose in the
charged offense. The trial court reasoned that that contex-
tual evidence was “solid” and therefore had “exceptionally
high probative value on the question of [ ] defendant’s sexual
interest in children.” Certainly, that inference draws its per-
suasive force from rendering defendant’s sexual abuse of C
irrefutable. But here, C also testified that defendant’s abuse
involved repeated sexual intercourse, which defendant did
not dispute, and defendant’s sexual interest in children
can be inferred from that prior sexual contact with a child,
regardless of whether it resulted in impregnating his vic-
tim. Thus, given the probative value of evidence of the prior
abusive conduct itself, to which C was available to testify in
Cite as 

 (2024)                             659

detail and which defendant did not dispute, the contextual
evidence that defendant fathered C’s child did more to bol-
ster C’s testimony that the prior abuse definitely occurred
than it did to establish defendant’s sexual interest in chil-
dren or that he acted with a sexual purpose when commit-
ting the charged offense.
         We turn to the prejudicial effect of the other-acts
evidence of defendant’s prior abuse of C. As to evidence of the
prior abusive conduct itself, the state offered that evidence
as propensity evidence that necessarily relied on the inter-
mediate inference that defendant has a sexual interest in
children generally, even though it was probative of the ulti-
mate inference that defendant acted with a sexual purpose
and therefore subjected B to sexual contact in the charged
offense. Accordingly, we acknowledge that the risk of unfair
prejudice that inheres in character-based propensity rea-
soning was necessarily present here. See, e.g., Davis III, 

 (“Certainly, the prejudicial effect of character evi-
dence is great[.]”); Skillicorn, 

 (discussing
the numerous “harmful effects” of character evidence and
the history of its prohibition).
         It may therefore seem inescapable to conclude,
under the Davis III framework, that even the highly pro-
bative prior abusive conduct evidence “primarily or sub-
stantially” derives its relevance from defendant’s character
and, therefore, that the trial court abused its discretion in
declining to exclude the evidence under OEC 403. See 

 (holding that “because the primary or substan-
tial value of the [other-acts evidence] was not derived from
character, or character-based propensity reasoning, declin-
ing to exclude the evidence under OEC 403 was within the
permissible range of the trial court’s discretion”). But the
application of Davis III is not that straightforward in this
case, for a number of reasons.
         First, the court in Davis III explained that the mid-
dle of the Williams OEC 403 spectrum includes “evidence
where * * * despite a noncharacter purpose being offered
by the proponent of the evidence, a jury or factfinder could
perceive the evidence as relying on character and action in
conformity with character as its source of relevance to the
660                                         State v. Martinez

trial.” 

; accord State v. Moles, 

,
618 n 5, 

 (2019), rev’d on other grounds, 

, 

 (2020) (concluding that other-acts evidence
of “sexual purpose” falls in the middle of the Williams spec-
trum because Williams concluded that such “prior bad acts
have cognizable relevance to show sexual purpose” and that
“admission of such evidence does not violate the [D]ue [P]
rocess [C]lause”). Here, unlike the other-acts evidence in
Davis III, which could be parsed into constituent parts with
distinct theories of relevancy, only one of which depended
on character, the relevance of defendant’s prior child sex-
ual abuse in this case necessarily depends on defendant’s
character, regardless of how one parses it. Thus, although
a jury or factfinder would perceive the evidence as relying
on character as its source of relevance to the trial, Davis III
nonetheless suggests that it falls somewhere in the middle
of the OEC 403 balancing spectrum by virtue of it having
cognizable probative value as to whether defendant acted
with a sexual purpose and therefore subjected B to sexual
contact, an element of the charged offense.
         To further complicate things, unlike this case,
Davis III was not a child sexual abuse prosecution. Williams
held that due process requires OEC 403 balancing of other-
acts evidence admitted under OEC 404(4), but also recog-
nized that, because the extent of due process protections
can depend on “historical practice,” the exclusion of other-
acts evidence involving character and propensity reasoning
in child sexual abuse cases is not so deeply rooted as to be
“fundamental.” 

. Thus, while Williams sug-
gested, and Baughman reiterated, that propensity evidence
may be categorically inadmissible in criminal cases other
than child sexual abuse prosecutions under the Due Process
Clause, those cases made clear that propensity evidence
may be admissible in child sexual abuse cases after OEC
403 balancing when it has cognizable probative value to an
issue other than the defendant’s character and propensity.
Williams, 

 (noting the possibility that due pro-
cess could preclude the admission of other-acts evidence to
prove propensity in a case where the defendant is charged
with crimes other than child sexual abuse); Baughman, 361
Cite as 

 (2024)                                                661

Or at 403 n 8 (same); see also Skillicorn, 

 n 2
(same).
         Finally, Davis III also suggests that the prejudicial
effect of character evidence may be mitigated by, among
other things, the trial court instructing the jury that it
could use the evidence only for the limited permissible pur-
pose for which the state offered it, as the court attempted to
do here.10
         All of that makes it difficult to reconcile Davis III’s
formulation of when a trial court abuses its discretion in
declining to exclude other-acts evidence (when the other-
acts evidence primarily or substantially derives its proba-
tive value from character or character-based propensity
reasoning) with the articulated theory of relevancy for sex-
ual purpose evidence (that necessarily relies on an interme-
diate character inference) in Williams and its emphasis on
how the historical exception to the exclusion of propensity
evidence in child sexual abuse prosecutions bears on OEC
403 balancing of other-acts evidence proffered under OEC
404(4). But we need not definitively resolve those tensions to
reach our disposition in this case.
         Even assuming that the prejudicial effect of the
prior abusive conduct evidence that relied on character
would not, with a proper limiting instruction, substan-
tially outweigh its probative value to establish that defen-
dant acted with a sexual purpose in the charged offense,
the court’s instruction here did not limit the jury’s use of
the other-acts evidence to that aspect of the element of sex-
ual contact, but instead to whether defendant “acted on the
[sexual] interest [in children] as to the charged offense.”
Further, the contextual evidence of defendant’s prior abuse
of C created a substantial risk that the jury would convict
defendant because he is, in the state’s words, “a man willing
to prey on a vulnerable victim,” specifically, a child. A proper
limiting instruction could not mitigate that prejudice suffi-
ciently for the contextual evidence to be admissible under
    10
       We had previously suggested otherwise. See State v. Tinoco-Camarena, 

, 308 n 11, 

, rev den, 

 (2021) (“To instruct that
other acts may be considered only for [a permissible] purpose * * * does not avoid
the problem if propensity is the implicit link between” the other acts and the per-
missible inference.).
662                                         State v. Martinez

OEC 403, because the contextual evidence had little to no
cognizable probative value to establish defendant’s sexual
purpose in the charged offense.
         We do not foreclose that, under Davis III and
Williams, the trial court may have discretion on remand to
admit the other-acts evidence of defendant’s prior abusive
conduct toward C, with a correct limiting instruction that
narrows the use of that evidence to proving defendant’s sex-
ual purpose as to the element of sexual contact. The parties
may develop additional arguments on that issue on remand.
However, the other-acts evidence of the context of defendant’s
prior abuse of C rendered “the primary or substantial value”
of the other-acts evidence, viewed as a whole, to be “derived
from character, or character-based propensity reasoning.”

. We therefore conclude that the trial court abused
its discretion in declining to exclude at least part of the evi-
dence—that of the context of defendant’s prior abuse of C—
under OEC 403. And, as we concluded in Martinez I, “the
error in this case was not harmless.” 

.
        Reversed and remanded.