State v. Thompson

                                  817

Submitted September 30, 2020; conviction on Count 3 reversed and remanded,
   convictions on Counts 5, 6, and 7 vacated and remanded, remanded for
            resentencing, otherwise affirmed November 24, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              MARION DAVID THOMPSON,
                    Defendant-Appellant.
               Gilliam County Circuit Court
            17CR02940, 17CR10042, 17CR22181;
            A169327 (Control), A169328, A169329
                               

  John A. Olson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Hadlock, Judge pro tempore.
  PER CURIAM
   Conviction on Count 3 reversed and remanded; convictions on Counts 5, 6, and 7 vacated and remanded; remanded
for resentencing; otherwise affirmed.
818                                                       State v. Thompson

           PER CURIAM
         Defendant appeals a judgment in which he was
convicted of one count of first-degree sodomy, ORS 163.405
(Count 1), and three counts of first-degree sexual abuse,
ORS 163.427 (Counts 5, 6, and 7) for sexual offenses against
S and two counts of first-degree sexual abuse (Counts 3
and 4) for a sexual offense against C. At issue here are two
convictions—Count 3 and either Count 5, 6, or 71—that
stemmed from the state’s allegations that defendant rubbed
ointment on S’s and C’s vaginas for a sexual purpose. At
defendant’s bench trial, he argued that, regarding the allegations of sexual abuse involving ointment, he touched the
victims for a medical purpose and therefore lacked the requisite sexual purpose that would satisfy the elements of
first-degree sexual abuse. To disprove that defendant had
touched the victims for a medical purpose, the state moved
to admit under OEC 404(3) evidence of other acts by defendant, namely, charges of sexual abuse involving other girls
of similar age as the victims and occurring under similar
circumstances.2
         The trial court determined that the other-act evidence was nonpropensity evidence that was admissible
under the so-called “doctrine of chances,” first set forth in
State v. Johns, 

, 

 (1986), overruled
by State v. Skillicorn, 

, 

 (2021). The
court admitted the evidence under OEC 404(3), explaining
that the state was “entitled to present evidence of other
occasions” in which defendant had touched other girls “as
evidence that he was actually acting with a sexual intent”
when he touched the victims in the instant case.
         On appeal, defendant contends that the trial court
erred in admitting, under OEC 404(3) and Johns, evidence of
defendant’s other acts. Defendant is correct. Since the trial
court ruled on the state’s motion in this case, the Supreme
    1
       It is unclear from the record which of the counts regarding sexual abuse
against S (Count 5, 6, or 7) involved medicinal cream. Accordingly, our disposition is to vacate all three of those convictions with instructions for the trial court
to determine which count involved the medicinal cream, and re-enter convictions
on the other two counts.
    2
       The state asserts that defendant failed to preserve the argument he raises
on appeal. We reject that assertion without written discussion.
Cite as 

 (2021)                             819

Court has issued its decision in Skillicorn, which clarified
the OEC 404(3) boundaries for admissibility of other-acts
evidence under the doctrine of chances. In doing so, it overruled Johns “to the extent that” Johns held that other-acts
evidence could be admitted under the doctrine of chances
to support an inference that, because the defendant had
engaged in deliberate conduct before, it is likely that he
engaged in deliberate conduct again in the charged incident.
Skillicorn, 

. The state’s theory of admissibility,
with which the trial court agreed, permitted the inference
from defendant’s other misconduct that he has a propensity
to touch young girls for a sexual purpose, and that he acted
in conformity with that propensity in this case.
         Accordingly, we conclude that the court erred by
admitting evidence of defendant’s sexual acts against other
girls under OEC 404(3). See State v. Levasseur, 

, 

, adh’d to as clarified on recons, 

, 

 (2021) (trial court erred in admitting evidence of the defendant’s prior crimes and convictions under OEC 404(3) to show sexual purpose). Further,
the record indicates that the trial court relied on the erroneously admitted evidence. Cf. State v. Jones, 

, 

, rev den, 

 (2013) (“Given the
court’s express statement that the prior acts evidence did not
have a significant effect on the outcome and that the court
had relied on [the victim’s] testimony, which it believed, in
reaching the verdict, we conclude that there is little likelihood that the admission of the evidence in question affected
the trial court’s verdict.”). Accordingly, the error was not
harmless.
         Conviction on Count 3 reversed and remanded;
convictions on Counts 5, 6, and 7 vacated and remanded;
remanded for resentencing; otherwise affirmed.