State v. Smith

540                    May 14, 2025               No. 433

   This is a nonprecedential memorandum opinion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.
                DAVID MICHAEL SMITH,
                   Defendant-Appellant.
              Washington County Circuit Court
                   22CR25932; A182311

  Oscar Garcia, Judge.
  Argued and submitted April 15, 2025.
   Bear Wilner-Nugent argued the cause and filed the brief
for appellant.
   Kyleigh Gray, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  TOOKEY, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)           541

        TOOKEY, P. J.
         Defendant rented a room in the home where a child,
her mother, and her mother’s boyfriend lived. The issues in
this case relate to incidents in which defendant interacted
with the child. Defendant appeals a judgment of conviction
for unlawful sexual penetration in the first degree (Count 1),
ORS 163.411 (2021), amended by Or Laws 2023, ch 407, § 4,
and two counts of sexual abuse in the first degree (Counts 2
and 3), ORS 163.427, entered after a jury trial.
         He assigns two errors: (1) that the trial court erred
in denying his motion for judgment of acquittal on Count 1,
unlawful sexual penetration in the first degree and (2) that
the trial court erred in denying his motion in limine with
regard to a CARES Northwest video. After considering the
parties’ arguments and relevant case law, and reviewing the
written record and the video evidence, we affirm.
          Regarding his first assignment of error, defendant
contends that the trial court erred in denying his motion for
judgment of acquittal on Count 1 because there was legally
insufficient evidence to prove the penetration element of
unlawful sexual penetration. See ORS 163.411(1) (2021)
(defining the offense of first-degree unlawful sexual penetration to include penetration of vagina of child under 12
years of age with an object other than the actor’s penis or
mouth); State v. Hoover, 

, 

,
rev den, 

 (2012) (“The offense is committed by
penetration of the vagina; ‘slight’ penetration of the vagina
is sufficient.”).
         Defendant cites State v. Gonzales, 

, 

, rev den, 

 (2011), and Hoover,

, to argue that the evidence in the record
is legally insufficient regarding the requisite penetration of
the child’s vagina. That is, he argues that there “was not
legally sufficient evidence, even in the light most favorable
to the state, that defendant’s finger ever entered the victim’s vagina, as opposed to touching her external genitalia.”
The state responds that “[a]ssuming that penetration of the
vagina (rather than the external genitalia) was required,
the victim’s statement that defendant had tickled her both
542                                              State v. Smith

outside of her vagina, where the underwear touches, and
inside, ‘where the pee comes out,’ when viewed in the light
most favorable to the state, permits a rational factfinder to
infer that defendant penetrated the victim’s vagina with his
finger.”
          “We review a trial court’s denial of a motion for judgment of acquittal … to determine whether, viewing the
evidence in the light most favorable to the state and accepting reasonable inferences and credibility determinations,
a rational factfinder could have found the elements of the
crime beyond a reasonable doubt.” State v. Lujano-Rosales,

, 

 (2025). We agree
with the state that the evidence in this case, particularly
the testimony of the mental health provider from CARES
Northwest, the detective, and the child, and the child’s
statements in the CARES Northwest video, was legally sufficient to allow the jury to find that penetration was proved.
The trial court did not err in denying defendant’s motion
for judgment of acquittal on the charge of unlawful sexual
penetration in the first degree.
         Regarding his second assignment of error, defendant argues that the trial court erred in denying his “motion
in limine with regard to the CARES Northwest video.” In
that motion, defendant contended that the video should be
excluded, as the statements of the child in the video would
constitute a “needless presentation of cumulative evidence,”
and that the trial court was “required to conduct a balancing test.” On appeal, defendant repeats those arguments,
contending that “playing the interview video constituted
the needless presentation of cumulative evidence,” that the
trial court “did not conduct the required OEC 403 balancing test,” and that the trial court should have excluded the
video under OEC 403. The state responds that defendant’s
argument about OEC 403 balancing is unpreserved, and
that the trial court properly admitted the video because it
contained additional “important details about defendant’s
conduct” and thus “was not cumulative.” The state further
argues that to the extent the video “may have contained
cumulative information, the trial court acted within its discretion by admitting the evidence,” and that “the trial court
Nonprecedential Memo Op: 

 (2025)            543

adequately balanced the probative value of the evidence
against the potential concerns about the needless presentation of cumulative evidence[.]”
         This court reviews a trial court’s decision to admit
evidence under OEC 403 for abuse of discretion. State v.
Slay, 

, 

, rev den, 

(2024). As it relates to the exclusion of evidence a party contends is cumulative, that rule “requires a two-step inquiry:
Whether the evidence at issue is cumulative and, if so,
whether its probative value is substantially outweighed by
consideration of its cumulative nature.” State v. Moore, 

, 

 (1996) (emphasis in original).
         For purposes of our analysis, we assume that defendant preserved the issues raised in his second assignment
of error. After considering the testimony and viewing the
CARES Northwest video, we conclude that the evidence provided by that video was not cumulative. That is so because
in the video the child, through her conversation with a mental health provider from CARES Northwest, provided an
extended narrative of, and offered a broader context about,
matters related to the relevant actions of defendant. That
information provided through the video was not similarly
offered through the testimonial evidence at trial (the child’s
teacher, the child, the child’s mother, the detective, or the
mental health provider from CARES Northwest). The video,
in which child conversed with the mental health provider,
thus provided a “qualitatively different” perspective of the
context in which the alleged incidents occurred, and the matters related to the child’s disclosures. See State v. Hudson,

, 

 (2016) (“[E]vidence is
cumulative when it ‘demonstrates the same thing as other
admitted evidence’ but is not cumulative ‘when it presents
qualitatively different proof than other admitted evidence.’ ”
(Quoting State v. Bradley, 

, 

(2012)).
         Furthermore, to the extent that aspects of the video
were cumulative, even though the trial court’s expressed
reasoning relating to admitting the video was limited, and
acknowledging the abbreviated nature of that expressed reasoning, in “light of the parties’ arguments” the trial court’s
544                                           State v. Smith

ruling “demonstrates that the court balanced the appropriate considerations” under OEC 403. State v. Anderson, 

, 

 (2018). Moreover, we cannot say
that the video’s “probative value is substantially outweighed
by considerations of its cumulative nature.” See Moore, 

. Thus, we conclude that the trial court did not
abuse its discretion in admitting the evidence.
        Affirmed.