State v. Bonczkowski

No. 85              February 12, 2025                  701

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
          MICHAEL JOSEPH BONCZKOWSKI,
            aka Michael Jospeh Bonczkowski,
                 Defendant-Appellant.
              Marion County Circuit Court
                 20CR33715; A178197

  Donald D. Abar, Judge.
  Argued and submitted February 21, 2024.
   Zachary J. Stern argued the cause for appellant. Also on
the brief was Zachary J. Stern, PC.
   Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Affirmed.
702   State v. Bonczkowski
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 (2025)                              703

        PAGÁN, J.
         Defendant appeals from a judgment of conviction
for sodomy in the first degree, raising four assignments
of error. In his first assignment, defendant argues that
the trial court erred by admitting evidence that he sexually abused the victim, J, on other occasions and was verbally and physically abusive to J and his family because it
was not relevant under OEC 401. Alternatively, he argues
that the trial court abused its discretion under OEC 403
by admitting the evidence. In his second assignment, defendant argues that the trial court erred by allowing the state
to call several non-percipient witnesses to repeat J’s out-ofcourt statements concerning both charged and uncharged
conduct because that evidence bore no indicia of reliability.
In his third assignment, defendant contends that the trial
court plainly erred when it failed to intervene during the
state’s rebuttal argument, when the state referenced statements that prospective jurors made during voir dire concerning delayed reporting, introduced what defendant characterizes as “scientific evidence” regarding memories, and
expressed a personal opinion that the victim was credible.
Lastly, defendant’s fourth assignment of error contends that
the trial court erred by imposing a 300-month sentence. For
the reasons that follow, we affirm.
                         I.   FACTS
        Defendant was the live-in boyfriend of J’s mother.
One evening, when J was 11 years old, defendant sexually
assaulted J. J reported the abuse when he was 15 or 16 years
old, and in 2020, defendant was charged with first-degree
sodomy.
         At trial, J testified that when he lived with defendant, J “really didn’t like” defendant and that when he lived
with defendant, he was “intimidated” and “afraid” of defendant because he was “a lot bigger” than J. J stated that he
did not feel safe living with defendant because it “just sort of
always felt like there was possible danger nearby.”
        The state also presented evidence through a forensic
interviewer, who testified that J had told her that defendant
sexually touched J on several occasions in multiple locations
704                                     State v. Bonczkowski

throughout the house. The forensic interviewer also testified
that J told her that defendant physically abused him, his
siblings, and his mother during the time they lived together.
And the forensic interviewer testified that J had said he “felt
unsafe” around defendant and was afraid of him.
         A nurse practitioner also testified that J told her
about “two occasions” where defendant sexually abused him.
One event consisted of non-penetrative conduct occurring in
defendant’s bedroom and the other involved penetrative conduct in J’s bedroom.
          J’s guardian at the time of the trial also testified
that J had told her that defendant had “grabbed [J] and told
him that he would—he would show him, you know, teach
him something, and tell him not to talk back. Then he said
he took him in the—in a room and shut the door and abused
him.” She testified that J was “embarrassed and apprehensive” to tell her what happened.
                       II. ANALYSIS
A.    Other Acts Evidence
         In his first assignment of error, defendant argues
that the trial court erred in admitting evidence that defendant (1) sexually abused J on other occasions; (2) physically
abused J and his family members when they lived together;
and (3) emotionally abused J and his family members when
they lived together.
          Before trial, defendant moved to exclude the other
acts evidence, contending that it was “hearsay and not relevant.” The state indicated that it intended to introduce
the evidence to explain why J delayed disclosing the abuse.
The trial court agreed with the state, ruling that the proffered evidence was not “abnormal or inadmissible” and the
state is “always able to explain why there wasn’t immediate
reporting.” On appeal, defendant argues that J’s “fear” of
defendant was not relevant under OEC 401 because J did
not have an ongoing relationship with defendant because
after the charged conduct, J returned to live with his guardian and did not have contact with defendant after removing
his belongings.
Cite as 

 (2025)                             705

         As a preliminary matter, we review a trial court’s
determination of relevance under OEC 401 for errors of law.
State v. Stockton, 

, 

 (2021).
We review a trial court’s determination that other acts evidence is relevant and admissible under OEC 404(4) for legal
error. 

 Whether otherwise admissible evidence should be
excluded as unfairly prejudicial under OEC 403 is reviewed
for abuse of discretion. State v. Levasseur, 

, 

, adh’d to as modified on recons, 

, 

, rev den, 

 (2021). Our review is
limited to the record before the trial court at the time it
made its ruling. State v. Travis, 

, 

 (2022).
         Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” OEC 401. “The rule establishes a ‘very low threshold’ for the admission of evidence.”
State v. Titus, 

, 

 (1999) (quoting
State v. Hampton, 

, 255 n 8, 

 (1993)).
“Evidence is relevant so long as the inference desired by the
proponent is reasonable, even if the evidence also could support a contradictory inference.” 

         OEC 403 provides that relevant evidence “may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay
or needless presentation of cumulative evidence.” Generally,
we “defer to the trial court’s decision regarding whether the
probative value of the evidence is substantially outweighed
by the potential for prejudice.” State v. Sewell, 

, 

, rev den, 

 (2013) (internal quotation marks omitted). An abuse of discretion occurs
when a court exercises its discretion to an end that is not
justified by evidence and reason. Id. at 469.
        Oregon courts have permitted the admission of
an accused’s uncharged misconduct of which the victim is
aware for the purpose of showing the victim’s state of mind.
See State v. Hall, 

, 

, rev den, 

 (1991) (explaining that “[a] victim’s relationship to
706                                                 State v. Bonczkowski

the accused is relevant to explain her conduct”). Previously,
such evidence has been admitted to show the victim’s fear of
the defendant, thereby explaining the victim’s behavior. See,
e.g., State v. Panduro, 

, 

(2008) (the defendant’s uncharged acts toward the sexual
abuse victim were admitted to show the victim’s fear of the
defendant and hence the reason for her delayed reporting
of the abuse); State v. Zybach, 

, 

 (1989) (evidence offered to show why a victim delayed
in reporting incidents of sexual abuse is relevant for a noncharacter purpose).
         In this case, the trial court did not err in determining that evidence that defendant was verbally and physically
abusive toward the victim and his family was relevant under
OEC 401. First, the evidence was probative to explain J’s
delay in disclosing the abuse. The charged offense involved
defendant’s sexual assault of J at a time when J was living
with his mother and defendant. At that time, defendant was
verbally abusive to J, treated him unfairly, and, as J testified, was “intimidating” to him. J stated that he did not tell
anyone about what happened because “it doesn’t happen to
people,” and was “abnormal,” but that he ultimately disclosed
the abuse because he wanted to talk about it and to get help
“dealing with [his] issues.” He told the forensic interviewer
that he was afraid of defendant and felt unsafe living with
him. Thus, even though J did not expressly testify at trial
that he delayed reporting due to his fear of defendant, given
the above context, the evidence was still relevant to explain
J’s delay in reporting the abuse for several years.
         In the alternative, defendant argues that even if
the evidence was relevant under OEC 401, the state had no
“need” for the evidence and the risk of unfair prejudice outweighed any probative value, and the trial court therefore
abused its discretion under OEC 403.1 Defendant also argues
that the court erred by not properly conducting OEC 403

   1
     OEC 403 provides, in pertinent part:
       “Although relevant, evidence may be excluded if its probative value is
   substantially outweighed by the danger of unfair prejudice, confusion of the
   issues, or misleading the jury, or by considerations of undue delay or needless
   presentation of cumulative evidence.”
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 (2025)                                              707

balancing.2 However, defendant never raised an objection
under OEC 403. Rather, his objection was based on claims
that the contested evidence was hearsay and not relevant.
He never argued that the evidence was prejudicial, much
less unfairly prejudicial in light of its probative value. Thus,
his arguments premised on OEC 403 are unpreserved.
         In State v. Woods, 

, 

,
rev den, 

 (2017), the defendant argued that the
trial court erred by admitting evidence of prior sexual misconduct, contending that the probative value of the evidence
was substantially outweighed by the prejudicial effect under
OEC 403. Id. at 563. The defendant further argued that the
trial court was required to engage in OEC 403 balancing
under State v. Williams, 

, 

 (2015), in
order to protect the defendant’s due process rights under the
Fourteenth Amendment. Id. at 563-64; see also Williams, 

 (holding that OEC 403 balancing “is required by
the Due Process Clause”). However, we rejected both arguments because “[the] defendant neither requested OEC 403
balancing nor argued that due process required it below,
[and] we will not consider those arguments for the first time
on appeal.” Woods, 

.
         Further, we have consistently rejected unpreserved
OEC 403 arguments since Woods. See State v. Louden, 

, 

 (2017) (rejecting the defendant’s OEC 403 and due process arguments because they
were unpreserved); State v. Hagner, 

,

, rev den, 

 (2017) (refusing to review
the defendant’s OEC 403 argument for the first time on
appeal, and collecting cases establishing that a trial court’s
failure to conduct unrequested OEC 403 balancing is not
plain error). Thus, consistent with our decisions in Woods,

    2
      Defendant focuses his argument on prejudice under OEC 403. At trial
and in the briefing, OEC 404(3) was discussed. In light of State v. Davis, 

, 

 (2024), we note that OEC 404(4) was the appropriate rule under which to offer and receive such evidence but that the prejudice
analysis under OEC 403, as argued by appellant, is applicable. See Davis, 

 (explaining that “OEC 404(4) and OEC 404(3) operate, in conjunction,
to authorize a permissible range of discretion to admit other acts evidence of a
defendant, in a criminal trial, when character is present in some degree that is
less than the primary or substantial source of relevance”).
708                                                 State v. Bonczkowski

Louden, and Hagner, we do not consider defendant’s unpreserved OEC 403 claim of error.3
B.    Hearsay Evidence
        In his second assignment of error, defendant contends that the court erred by allowing the state to call
four non-percipient witnesses to repeat the victim’s out-ofcourt statements concerning both charged and uncharged
conduct. Specifically, defendant argues that the trial court
erred when it allowed the state to offer child hearsay evidence that bore “no indicia of reliability.”4
          OEC 803(18a)(b) provides, in part, that an out-ofcourt statement by a person about “an act of abuse” is admissible “if the declarant … testifies at the proceeding and is
subject to cross-examination.” Alternatively, such statements
are admissible if the declarant is “unavailable as a witness,”
the declarant was “chronologically or mentally” under a certain age when making the statements, and the party seeking
admission can show that certain conditions are met, including that the statements have sufficient “indicia of reliability.”

 By way of analogy, there are two “doors” for admission of
statements under OEC 803(18a)(b). State v. Lobo, 

, 

, rev den, 

 (2014).
        Here, as defendant acknowledges, J testified at trial
and was available for cross-examination. His statements met
the prerequisites for admission under OEC 803(18a)(b) and
were accordingly admissible under the first “door” of OEC
803(18a)(b). The trial court, therefore, was not required to
determine whether the statements bore indicia of reliability
before admitting them, as required for admission under the
second “door.” The trial court did not err.

    3
      Defendant does not request plain-error review and we decline to engage
in that analysis. See State v. Bigelow, 

, 

 (2010),
rev den, 

 (2011) (stating that the court would not address whether trial
court plainly erred where appellant had not attempted to demonstrate requirements for plain error review were met).
    4
      Defendant’s second assignment of error also argues—briefly—that the trial
court erred by not assessing the relevance of the child hearsay statements and
whether any reliably relevant statement was more probative than prejudicial.
Defendant also contends that some of the statements were cumulative of other
evidence. However, defendant failed to preserve those arguments, and does not
argue any error was plain, so we do not address them on appeal.
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 (2025)                             709

C. Prosecutor’s Statements
         In his third assignment, defendant raises an unpreserved challenge to several statements made by the prosecutor during rebuttal closing argument. Defendant contends
that the trial court plainly erred when it failed to intervene,
sua sponte, when the state (1) referenced statements that
prospective jurors made during voir dire concerning delayed
reporting, (2) introduced what defendant characterizes as
“scientific evidence” regarding memories, and (3) expressed
a personal opinion that the victim was credible. Defendant
contends that those arguments improperly referenced extrarecord facts and undermined the fairness of defendant’s
trial, and that under State v. Chitwood, 

, 

 (2022), the trial court erred when it failed to intervene.
         Unpreserved error relating to improper arguments
made by a prosecutor in closing argument will be considered
“legal error,” for purposes of plain-error review, “where it
would have been an abuse of discretion for the trial court
to have denied a motion for mistrial” had one been made,
i.e., where “it is beyond dispute that the prosecutor’s comments were so prejudicial as to have denied [the] defendant
a fair trial.” State v. Settlemier, 

, 

 (2024); Chitwood, 370 at 313-14 (explaining that,
“to establish legal error, a defendant who seeks review of
an unpreserved challenge to prosecutorial statements must
demonstrate that the statements were so prejudicial that
they deprived the defendant of a fair trial.”).
         Lawyers, like witnesses, are “prohibited from giving their personal opinions on the credibility of witnesses.”
State v. Sperou, 

, 

 (2019) (“It is
improper for counsel to interject his personal appraisal of
the witness’s credibility in a way which would suggest to the
jury that the appraisal is based upon counsel’s own knowledge of facts not introduced into evidence.” (Citations omitted)). As advocates for the state’s cause, prosecutors “have
wide latitude to make arguments from the evidence” but
they may not reference facts not in evidence to argue that
they believe a witness is truthful. 

. However, when
a defendant seeks appellate reversal based on an improper
argument and appellant did not preserve their argument,
710                                       State v. Bonczkowski

“it is not enough for a defendant to show that [the] prosecutor’s comments were improper[.]” Chitwood, 

.
Instead, as indicated above, improper argument warrants
reversal on appeal only when the argument is “so prejudicial
as to have denied [the] defendant a fair trial.” 

        Applying that standard in the context of this case,
we conclude that the prosecutor’s reference to juror statements about delayed reporting during voir dire do not warrant reversal on appeal. In relevant part, during the state’s
rebuttal closing argument, the prosecutor argued:
   “What else do you know that gives you confidence in what [J]
   says is true besides the surrounding circumstances about
   how he told us about what happened, how it ever came out
   at all? Because as you know from voir dire and from your
   own personal experience, many, many people never tell
   about this kind of abuse or they don’t tell for decades.
   “We know that [J’s] telling the truth because of some of the
   things he didn’t tell us. When he was on the stand and I
   asked him things like, you know, I think I asked him what
   were you wearing for instance and he doesn’t remember.
   You know, where did you – where were your hands and he
   doesn’t remember. I asked him how did you get from the
   bedroom to the living room and he’s not able to give exact
   details.
   “A person who’s lying, they’re gonna give me those details,
   right? A person who’s making up the story isn’t gonna say
   I don’t remember those parts; they’re gonna fill in those
   parts.
   “A person who is recollecting a traumatic event is gonna
   have some [holes] in their memory because that’s real
   memory. Real memory lacks detail.”
       For the following reasons, we conclude that the
statements identified by defendant do not require reversal.
         As an initial matter, we note that during its casein-chief, the state presented evidence regarding delayed disclosure of abuse through a forensic interviewer. The forensic
interviewer testified that children do not always disclose
abuse the same way each time they talk about it, and that
delayed disclosure is a common experience. She testified
that many factors come into play with regard to delayed
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 (2025)                             711

disclosure, such as the age of the child and the relationship
that the child had with the person of concern. The prosecutor could fairly refer the jury back to that testimony during
her closing argument, which we understand her to have
done here. And as defendant noted during his closing argument, the jury was properly instructed that it could draw
inferences and make conclusions from the evidence based on
their common sense and experience. See State v. Hines, 

, 684 n 2, 

, rev den, 

 (1987)
(“So long as [the jury is] correctly instructed that a finding
of guilty cannot be made on less than proof beyond a reasonable doubt, it cannot be error to also instruct them that they
may use their powers to reason and common sense” and may
draw reasonable inferences from the evidence.).
          Second, the prosecutor did not introduce “scientific
evidence” when she made demeanor-based arguments to the
jury that it should find the victim credible. The prosecutor’s
point was to rebut defendant’s argument that J’s statements
were not credible because he would have come forward earlier if he was telling the truth. In order to do so, the prosecutor focused on how J testified, his demeanor, and how
he answered questions. These facts were known to the jury,
who had witnessed J’s testimony, and were not based on evidence outside the record.
         Further, the prosecutor’s argument did make it
clear that she believed the victim’s report of defendant’s
assault. However, as the Supreme Court has explained,
“when a lawyer presents a witness and argues to the jury
that it should find facts in accordance with that witness’s
testimony, the jury may infer that the lawyer believes the
witness. That circumstance, which is usually present, …
is permissible.” State v. Charboneau, 

, 

 (1996). Thus, we do not think the prosecutor’s comments
were improper.
         Finally, even if the prosecutor’s challenged comments were improper, they did not rise to the level of prejudice that “as a practical matter, the bell once rung, cannot be unrung[.]” State v. Jones, 

, 

(1977) (internal quotation marks omitted); cf. State v. Muniz,

, 

 (2024). If defendant had
712                                      State v. Bonczkowski

objected, the prosecutor could have clarified that she was
asking the jury to rely on the evidence presented at trial or
the trial court could have provided a curative instruction to
the same effect. In either case, any potential impropriety
could have been cured. For those reasons, we reject the third
assignment of error.
D. Proportionality of Sentence
         Finally, defendant’s fourth assignment of error
raises a proportionality challenge based on Article I, section
16, of the Oregon Constitution, and State v. Rodriguez/Buck,

, 

 (2009). Defendant contends that that
the trial court improperly imposed a 300-month sentence
on defendant’s conviction for first-degree sodomy because
the court “erroneous[ly] belie[ved] that it lacked authority
to even consider an as-applied challenge to a statute that
carries a mandatory minimum sentence.” In support of that
assertion, he notes that the court, in the course of imposing
the prescribed sentence, responded to defendant’s argument
that the sentence was disproportionate by stating on the
record, “I feel bound to the case law now and so the court it
doesn’t have any discretion in the matter.”
          Article I, section 16, as construed in Rodriguez/
Buck, authorizes a sentencing court to impose a sentence
that is less than the statutorily mandated sentence if the
court finds that the mandated sentence, either on its face or
as applied, is an unconstitutionally disproportionate punishment. See Rodriguez/Buck, 

 (holding that
a 75-month sentence for first-degree sexual abuse offense
was unconstitutionally disproportionate under the specific
circumstances at issue). However, because the role of courts
is not to “second-guess” the penalties enacted by the legislature, we will determine that a sentence is disproportionate
only in rare circumstances. 

. The application of a
legislatively specified penalty violates the proportionality
clause of Article I, section 16, if the penalty “is so disproportionate, when compared to the offense, so as to ‘shock the
moral sense’ of reasonable people.” 

         Here, defendant does not argue that this record provides a factual or legal basis for the sentencing court to have
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 (2025)                                   713

invoked authority under Article I, section 16, to invalidate
the statutorily prescribed sentence as unconstitutionally
disproportionate. Instead, defendant contends that the court
erred because the court declined to consider defendant’s constitutional challenges under the erroneous assumption that
it “didn’t have any discretion in the matter.”
        However, we find defendant’s argument to be a mischaracterization of the statements that the court made on
the record. Specifically, the court stated at sentencing:
   “I would note for purposes of appeal that, [defense counsel], the argument you’re making that this is a single event
   and with no prior sexual conduct … that your basis for
   Rodriguez, I think it is, that it’s unconstitutional because
   it’s a disparate sentence.
   “I feel bound to the case law now and so the court it doesn’t
   have any discretion in the matter.
   “So it will be a 300-month sentence to department of corrections without 137.750, 751, and 421.508(4) considerations.
   Lifetime postprison supervision with a buccal sample, sex
   offender registration.
   “I will waive all financials. No ability to pay.
   “That is the sentence and the court feels bound under the
   law to do that. If the legislature were to give the court discretion on these, otherwise, you’re asking me to make a
   constitutional decision, which I don’t feel that I can under
   the rules that we have now or the case law. So that’s a question for a higher court.”
   (Emphasis added.)

         Rather than indicating that the court did not know
that it had discretion to consider defendant’s proportionality
challenge, the court’s statements instead demonstrate that it
understood that, in certain circumstances, Rodriguez/Buck
could be applied to invalidate a statutorily prescribed sentence. However, a sentencing court has only limited authority under Article I, section 16, to not impose a statutorily
mandated sentence and may only do so if it first determines
that the mandated sentence is, for some reason, unconstitutionally disproportionate punishment. And here, defendant
argued only that his sentence was disproportionate because
714                                    State v. Bonczkowski

the case involved a single incident and he had no prior sexual misconduct history. Given the seriousness of the offense
and defendant’s unpersuasive argument in support of why
his statutorily prescribed sentence was disproportionate,
it follows that the court did not err in concluding that in
did not have “discretion … in terms of what the sentence
would be.”
         Further, since the Rodriguez/Buck decision, we
have previously upheld similar sentences imposed pursuant to ORS 137.700 against such “as applied” challenges.
See State v. Alwinger, 

, 

(2010) (upholding 300-month sentence for sexual penetration of a child under 12 when the offender had no criminal
history); State v. Shaw, 

, 

,
rev den, 

 (2010) (same). In short, we disagree with
defendant that the trial court erred when it declined to consider the constitutional proportionality challenges to defendant’s sentence.
        Affirmed.