No. 218 March 12, 2025 797
This is a nonprecedential memorandum opinion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.
ALLAN EDWARD ALLEN,
Defendant-Appellant.
Coos County Circuit Court
20CR48899; A178174
Andrew E. Combs, Judge.
Argued and submitted June 12, 2024.
Kristin A. Carveth, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
798 State v. Allen
HELLMAN, J.
Defendant appeals a judgment of conviction for two
counts of sexual abuse in the first degree, ORS 163.427.1 On
appeal, defendant raises four assignments of error, challenging the trial court’s denial of his motion for judgment of
acquittal (MJOA) and the trial court’s ruling that, if he elicited certain evidence, that evidence would “open the door”
to defendant’s uncharged misconduct. For the following reasons, we affirm. Because the parties are familiar with the
facts, we do not repeat them here, except where necessary
for our legal analysis.
Motion for judgment of acquittal. In his first through
third assignments of error, defendant argues that the trial
court erred when it denied his MJOA because the state
failed to prove the “sexual contact” element of ORS 163.427.
On review of a motion for judgment of acquittal, “[w]e
view the evidence in the light most favorable to the state to
determine whether the evidence produced at trial was sufficient to allow a rational trier of fact, drawing reasonable
inferences, to find the elements of the alleged crimes beyond
a reasonable doubt.” State v. Wallace, 373 Or 122, 125-26,
561 P3d 602 (2024).
On appeal, defendant argues that the state failed
to prove that he had “sexual contact” with the victim, as
defined in ORS 163.305(5), because he did not act with “sexual purpose.”2 In considering whether evidence is legally sufficient to establish that a defendant acted with “sexual purpose,” we consider “the evidence of the touching” and “other
evidence in addition to the circumstances of the touching
1
ORS 163.427 provides, in relevant part:
“(1) A person commits the crime of sexual abuse in the first degree when
that person:
“(a) Subjects another person to sexual contact and:
“(A) The victim is less than 14 years of age;
“(B) The victim is subjected to forcible compulsion by the actor[.]”
2
We observe that defendant’s combined argument repeatedly references
ORS 163.305(6), which defines “sexual intercourse.” However, as relevant here,
we understand ORS 163.305(5) to define “sexual contact” as “any touching of the
sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying
the sexual desire of either party.”
Nonprecedential Memo Op: 338 Or App 797 (2025) 799
itself.” State v. Rodriguez/Buck,
347 Or 46, 56 n 4,
217 P3d
659 (2009).
Here, the victim testified that, when she was 12
years old, defendant touched her vagina, breasts, and buttocks during a “tickle fight” and “massage.” He did so after
his daughter had left the room and while alone with the
victim, and he instructed her to conceal his conduct from
her father. Viewing that evidence in the light most favorable
to the state, we conclude that a rational trier of fact could
determine that defendant acted with a sexual purpose when
he touched the victim’s sexual parts. The trial court did not
err in denying the MJOA.
Evidentiary ruling. In his fourth assignment of
error, defendant argues that the trial court erred because
it ruled that if defendant elicited evidence about a camping
trip, that evidence would allow “the state … to bring up
the uncharged misconduct that occurred during the camping trip.”
We review a trial court’s ruling that a party “opened
the door” to otherwise inadmissible evidence for legal error.
State v. Apodaca, 291 Or App 268, 269,
420 P3d 670 (2018).
We defer to “the trial court’s explicit and implicit factual
findings where there is evidence in the record to support
them.” State v. Pryor,
309 Or App 12, 18,
481 P3d 340,
rev den,
368 Or 511 (2021).
Prior to trial, defendant moved to exclude evidence of uncharged conduct because it was not relevant and
because it was inadmissible under OEC 404. Specifically,
defendant asked the court to exclude
“evidence that, sometime after the alleged criminal incidents herein, [d]efendant, while camping at some hot
springs with the alleged victim and others, allegedly took
off his swim shorts, exposing his genitals to the alleged
victim and others and allegedly commented about his genitals’ appearance[.]”
The trial court granted defendant’s motion, ruling that “[u]
nless the defense otherwise ‘opens the door,’ the state shall
not seek to elicit testimony or otherwise admit evidence
regarding such incident.”
800 State v. Allen
After that ruling, but again prior to trial, defendant filed a motion in limine to “determine whether evidence
would ‘open the door to otherwise excludable evidence of
prior act.’ ” With that motion, defendant sought an order
“determining whether presentation of evidence that the
alleged victim herein went on a camping trip with her
father, Defendant, and his daughter … sometime after
the alleged criminal incidents herein, would ‘open the door’
to previously-excluded evidence.”
Defendant argued that evidence that the victim
rode in a car with defendant to a camping trip would not
open the door to the excluded evidence about what occurred
on the camping trip. The trial court disagreed and determined that “if the Tokatee camping trip was brought up in
any way by the defense,” then it would open the door to evidence about defendant’s conduct on the camping trip.
Defendant’s first trial ended in a mistrial. Prior
to the second trial, defense counsel again inquired about
introducing evidence that the victim “went on that trip with
[defendant]” and his daughter. The trial court determined
that its prior ruling stood.3
We conclude that the trial court did not err when it
determined that defendant’s proposed evidence would “open
the door” to evidence about defendant’s conduct on the camping trip. A party “opens the door” to inadmissible evidence
when the party elicits that evidence, thereby permitting the
opposing party to inquire about it. See State v. Miranda,
309 Or 121, 128,
786 P2d 155 (1990) (“A defendant’s own
inquiry on direct examination into the contents of otherwise
inadmissible statements opens the door to further inquiry
on cross-examination relating to those same statements.”);
3
It is not entirely clear whether defendant could seek a pretrial ruling that
the unspecified testimony would “open the door” to evidence that he had successfully excluded from the trial. In the normal course, a trial court determines
whether certain testimony has “opened the door” to otherwise inadmissible evidence after that testimony has been given and when the opposing party seeks to
introduce the otherwise inadmissible evidence. This case highlights one of the
practical problems with defendant’s pretrial approach because defendant did not
identify the precise testimony that he sought to elicit. However, because neither
the state nor the trial court questioned whether defendant’s pretrial motion in
limine was a legally permissible approach, we assume, without deciding, that it
was.
Nonprecedential Memo Op: 338 Or App 797 (2025) 801
Black’s Law Dictionary 1311 (12th ed 2024) (defining “opening the door” as “[a]n attorney’s conduct or questions that
render otherwise inadmissible evidence or objectionable
questions admissible”).
A party also “opens the door” to inadmissible evidence by introducing evidence or testimony that creates
“misleading or unfair impression[s].” State v. Adonri, 143 Or
App 298, 306-07,
923 P2d 658, rev den,
324 Or 488 (1996)
(concluding that “the evidence about the child’s character
for truthfulness directly counterbalances the misleading or
unfair impression created for the jury by the admission of
inadmissible evidence about defendant’s character for truthfulness”). If a party “opens the door” to such evidence, then the
opposing party may introduce testimony to “negate, explain
or counterbalance any misleading or unfair impression” that
“[the] evidence could possibly have caused the jury.” Apodaca,
291 Or App at 277 (internal quotation marks omitted).
Here, the testimony that defense counsel wanted
to elicit was not simply about the victim’s purported willingness to ride in a car with defendant; rather, trial counsel represented that the evidence suggested that “she was
evidently comfortable enough to go on the camping trip”
with defendant and his daughter after the alleged sexual
abuse. In affirming its ruling from the first trial, the court
reasoned:
“What is the purpose … what is the probative value of
offering that statement at all? And from my perspective the
only probative value is that you are putting out there that
whatever she alleged happened at [defendant’s] house …
wasn’t that bad … because they … went somewhere or
another … on a camping trip thereafter, so she couldn’t
have been that scared of him.”
The court further stated, “[I]f what you’re doing is, is introducing it for that purpose, then it seems like the state should
have the same right to say, ‘[W]ell let’s talk a little bit about
what happened on that camping trip.’ ” Thus, the trial court
implicitly found that evidence that the victim went on the
camping trip would be misleading and unfair because it
would suggest that defendant’s prior conduct “wasn’t that
bad.”
802 State v. Allen
Having reviewed the record, we determine that it
supports the trial court’s explicit and implicit factual findings. With those findings, the trial court did not err in ruling that defendant would “open the door” to evidence about
defendant’s conduct if he introduced evidence about the
camping trip.
Affirmed.
