State v. Klusendorf

804                     April 10, 2024                  No. 226

   This is a nonprecedential memorandum opinion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.
               GAVIN LLOYD KLUSENDORF,
                    Defendant-Appellant.
               Washington County Circuit Court
                    20CR47103; A178616

   Andrew Erwin, Judge.
   Submitted October 3, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   PAGÁN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)            805

        PAGÁN, J.
         Defendant appeals from a judgment of conviction for
two counts of first-degree unlawful sexual penetration, ORS
163.411, and two counts of first-degree sexual abuse, ORS
163.427. On appeal, defendant raises three assignments
of error. He first assigns error to the trial court’s denial of
defendant’s request for a less-satisfactory-evidence instruction when the detective did not record her interview with
defendant, even though she had access to recording devices.
Next, defendant assigns error to the trial court allowing
the detective’s testimony telling the defendant that she was
able to corroborate much of the victim’s disclosure, as defendant argues this constituted improper vouching testimony.
Lastly, defendant assigns error to the trial court admitting
evidence under OEC 404(3) of defendant picking up the victim, E, by the crotch while they played to show E’s state of
mind. On all assignments, we affirm.
         We reject defendant’s first assignment of error
because the less-satisfactory-evidence instruction is not
appropriate when better evidence is not “reasonably available” during discovery. State v. West, 

,

 (2017). We reject defendant’s second assignment of error because the Supreme Court and we have previously concluded that statements offered “as context for the
responses that those statements elicited” are not inadmissible as vouching. State v. Chandler, 

, 

 (2016) (internal quotation marks omitted); see also
State v. Peterson, 

, 

 (2018)
(holding that statements providing “relevant context for the
victim’s emotional reaction” were not “offered for the truth
of the credibility opinion that it expresses,” and thus, were
admissible).
         As to the third assignment of error, defendant
argues that the evidence at issue was prohibited by OEC
404(3) because it was used to bolster E’s credibility and
required inferences regarding defendant’s propensity to
commit the charged crime. We review the admissibility of
other-acts evidence under OEC 404(3) for legal error. State
v. Travis, 

, 

 (2022). Whether
the other-acts evidence is admissible but “should be excluded
806                                                     State v. Klusendorf

as unfairly prejudicial under OEC 403 is reviewed for abuse
of discretion.” 

 Other-acts evidence is admissible “to prove
any relevant fact other than that a person has a propensity
to commit certain acts and acted in accordance with that
propensity on a particular occasion.” State v. Skillicorn, 

, 

 (2021). To demonstrate that the
evidence is admissible, the proponent must establish “ ‘a theory of relevance’ ” and articulate how that theory “ ‘does not
depend on the actor’s’ ” propensity to commit the charged
crime. State v. Taylor, 

, 

(2023) (quoting State v. Jackson, 

, 

 (2021)).
         Here, the state’s proffered theory of relevance for
the evidence was to show E’s state of mind after the abuse.
The state argued that E felt “mad, sad, and uncomfortable”
when the defendant, while playing with E and her cousin,
picked E up by her crotch and armpit and carried her around.
We conclude that the trial court did not err in finding that
E’s state of mind was at issue in the case because other evidence was presented to show that E was acting out, wetting
the bed, and engaging in self-harm, and the defense’s cross
examination attempted to posit an alternative reason for
the behavior.1 The state aimed to demonstrate E’s lack of
comfort around defendant and with his physical touch, even
in a playful setting, to tie her behavioral issues to the abuse.
         We have previously held that other-acts evidence
under OEC 404(3) is permissible to prove any theory of relevance, so long as the theory “does not logically depend on
propensity reasoning.” State v. Nolen, 

,

 (2023) (citing State v. Martinez, 

, 

 (2021) (internal quotations marks
omitted)). To show that the evidence did not depend on propensity reasoning, the state must have “articulate[d] the
chain of inferences that ma[de] the evidence relevant to
that purpose and explain[ed] how that chain of inferences
d[id] not depend on the actor’s character.” Jackson, 

. Here, we conclude that the court did not err in holding that the state met its burden. According to the state,
     1
       See State v. Pitt, 

, 

 (2012) (“In examining evidence to be admitted under the categories of exceptions to OEC 404(3), a trial judge
first must determine whether the prior act is relevant to the issues being tried.”).
Nonprecedential Memo Op: 

 (2024)                                807

the evidence was offered to show that E was uncomfortable
playing with defendant, “where even the most subtle of contact, in her heart, made her feel mad and sad … because ‘it
happened again.’ ” That logical pathway did not rely on any
negative inferences as to defendant’s propensity to commit
the charged crime.2 Therefore, the evidence is permissible
nonpropensity evidence under OEC 404(3).
         Additionally, we conclude that the trial court did
not abuse its discretion when it held that the evidence was
substantially more probative than prejudicial under OEC
403. Defendant contends that the evidence suggested he
was inappropriate with E and would encourage the jury to
draw negative inferences about his character. Because the
evidence had the potential to be prejudicial, the trial judge
opted to provide a limiting instruction to the jury, stating
that the evidence was not to be considered another act of
abuse; rather, it was offered to demonstrate E’s “continued
view of the … relationship between her and the defendant,
and for its effect on that, if any.”3 Given the judge’s limiting
instruction and the evidence’s relevance to a fact at issue in
the case, we conclude that the trial court did not abuse its
discretion when allowing the evidence under OEC 403.
        Thus, the trial court did not err in allowing the
other-acts evidence under OEC 404(3) and OEC 403.
           Affirmed.




    2
      See, e.g., State v. Herring, 

, 215-16, ___ P3d ___ (2024) (holding that the trial court did not err in admitting evidence that was “relevant without resort to speculation”); Jackson, 

 (stating that whether relevant evidence is admissible depends on both “the ultimate fact that the proponent
seeks to prove” and the chain of inferences necessary to connect the evidence to
the ultimate fact not relying on propensity of the defendant); Taylor, 

 (holding that relevant evidence that does not require a propensity
bridge is admissible to show a defendant’s plan).
    3
      See State v. Brown, 

, 

, rev den, 

 (2015) (holding that a limiting instruction can mitigate risk of unfair
prejudice).