State v. Travis

496                  October 29, 2025               No. 936

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                 ROY ALLEN TRAVIS,
                  Defendant-Appellant.
               Marion County Circuit Court
                  18CR77934; A179715

   Thomas M. Hart, Judge.
   Argued and submitted June 12, 2024.
   Sara F. Werboff, 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.
   Michael A. Casper, 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.
   ORTEGA, P. J.
   Reversed and remanded.
Cite as 

 (2025)                             497

        ORTEGA, P. J.
          This case is before us for a second time. A jury
found defendant guilty of five counts of second-degree
sexual abuse for his conduct against M when she was his
minor stepdaughter, as well as first-degree rape, strangulation constituting domestic violence, fourth-degree assault
constituting domestic violence, two counts of first-degree
unlawful sexual penetration, and two counts of coercion for
his conduct against M when she was his adult wife. On his
first appeal, we held that the trial court erred in admitting,
under OEC 404(3), evidence of defendant’s prior conviction
for first-degree rape of his teenaged biological daughter, S,
because it was propensity evidence. State v. Travis, 

, 

 (2022) (Travis I). We reversed and
remanded for “the trial court to determine ‘whether, after
conducting a correct analysis under OEC 404 and OEC 403,
other acts evidence should again be received and whether
a new trial is required or appropriate.’ ” 

 at 472 (quoting
State v. Baughman, 

, 

 (2017)).
         Defendant now assigns error to the trial court’s ruling on remand to again receive the other-acts evidence, this
time under OEC 404(4) and after conducting OEC 403 balancing. He also assigns error to the trial court’s ruling denying him a new trial and reinstating the judgment of conviction. We conclude that the trial court abused its discretion
in again receiving the other-acts evidence to establish defendant’s sexual interest in children because it was offered to
ultimately establish defendant’s propensity to commit child
sexual abuse. We therefore reverse and remand for a new
trial and need not address defendant’s second assignment of
error.
       HISTORICAL AND PROCEDURAL FACTS
         In 1992, defendant pleaded guilty to first-degree
rape of his 15-year-old daughter, S. He was sentenced to 20
years in prison. While incarcerated, he became romantically
involved with M’s mother and sent M letters expressing his
fatherly love for her. In 2004, when M was 15 years old,
defendant married M’s mother, and they moved together to
rural Mill City, where M had no friends or social connections
498                                            State v. Travis

and felt “very isolated.” When M was 18, her mother died
of a terminal disease. When M was 20, she and defendant
married.
         In 2018, when M was 29, she reported to a co-worker
that defendant had been violent with her, and her co-worker
encouraged her to leave him. M did so, obtained a restraining order against defendant, and later reported to police
that defendant had sexually abused her when she was a
minor and had physically and sexually abused her during
their marriage.
         The state charged defendant with five counts of
second-degree sexual abuse, ORS 163.425, for subjecting
M to sexual and oral sexual intercourse when she was a
minor, as well as first-degree rape, ORS 163.375, strangulation constituting domestic violence, ORS 163.187, fourth-degree assault constituting domestic violence, ORS 163.160,
two counts of first-degree unlawful sexual penetration, ORS
163.411, and two counts of coercion, ORS 163.275, for his
abusive conduct against M during their marriage.
          The state moved pretrial to admit other-acts evidence of defendant’s prior sexual abuse of S and his statements regarding his sexual attraction to children. The state
sought admission of the evidence under OEC 404(3) “to
prove [ ] defendant’s sexual motive in offending the child victim in the current case,” and under OEC 404(4) and State v.
Williams, 

, 

 (2015), to prove defendant’s
“sexual attraction to children,” his “propensity to sexually
abuse children as alleged in this case,” and his “propensity
to sexually offend this class of victim.” At the hearing on
the motion, the state proffered a certified copy of defendant’s
1992 conviction for first-degree rape, including the charging
instrument, to show that he pleaded guilty to having sexual
intercourse with a biological child under the age of 16, and
police reports from that case containing various statements
by defendant and S.
         The court granted the state’s motion and admitted
the evidence under OEC 404(3). First, the court observed
that “appellate courts have found that prior abuse of different victims is a relevant factor, an admissible factor to show
Cite as 

 (2025)                              499

that the defendant had a sexual intent in the defendant’s
behavior,” and it concluded that “the alleged sexual intent of
[ ] defendant is relevant to the issue of whether or not in this
situation this type of behavior was with a motive or plan to
have sexual intercourse with a child,” particularly given the
similarity in defendant’s behavior and the class of victims
between the prior and charged acts. Turning to OEC 403
balancing, the court further concluded that the other-acts
evidence was more probative than prejudicial because of
the state’s need for the evidence “based on the gap [between
charges], the fact that there’s no physical evidence available, … the fact that the other witness [M’s mother] who
would … have relevant testimony to talk about what did
or did not happen unfortunately succumbed to an illness,”
and because the court could instruct the jury that “the evidence of prior sex abuse of a daughter is not proof that the
defendant sexually abused this daughter; it only goes to the
motive, intent, plan, knowledge[.]”
         On the first day of trial, the state offered three letters defendant wrote from prison to M when she was 13 to
15 years old as “evidence of [ ] defendant’s plan or scheme
with regard to offending the victim in this case.” The court
admitted the letters “consistent with the [c]ourt’s previous
ruling regarding prior bad acts” over defendant’s objection
and renewed objection to the court’s prior ruling. Defendant
then objected to S testifying in the state’s case-in-chief and
argued that he could stipulate to his prior conviction, which
“would be curing the prejudicial aspect that we’re seeing
here.” The court ruled that S’s testimony “is more probative
than it is prejudicial, with the [c]ourt’s willingness to give a
curative instruction.”
         At trial, M testified that defendant began touching
her inappropriately shortly after they moved to Mill City.
M further testified that when she was 16 and 17 years old,
defendant had subjected her to sexual intercourse approximately 30 times and subjected her to oral sex more than
once. According to M, after her mother died defendant persuaded her to marry him to make their sexual relationship
“right in the eyes of God,” and defendant then became more
500                                                          State v. Travis

controlling and abused M physically, sexually, verbally, and
emotionally for several years.
         S also testified at trial. S acknowledged that she
is defendant’s biological daughter, that defendant sexually
penetrated her when she was 15 years old, and that she is
the named victim of defendant’s 1992 first-degree rape conviction. After closing arguments, the court instructed the
jury that the other-acts evidence was admitted only for the
limited purpose “of deciding whether the defendant had
a particular motive, purpose, plan, or sexual interest in
children.”1
         As noted, in defendant’s first appeal, we held that
the trial court erred in admitting, under OEC 404(3), evidence of defendant’s prior rape of his biological daughter,
because that evidence was propensity evidence, and we
reversed and remanded for the trial court to reconsider its
ruling under the correct legal framework. Travis I, 

.
         On remand before a different judge, the state relied
on its previously filed briefing arguing that defendant’s
prior rape of S was relevant and admissible to establish his
“character for sexual interest in children” under OEC 404(4)
and Williams, and that the evidence withstood OEC 403
balancing. The state asked the court to conclude that the
other-acts evidence should have been received under OEC

   1
     The court’s limiting instruction provided, in full:
       “Defendant’s prior conviction and other bad acts. You have heard testimony that the defendant was previously convicted of the crime of rape in
   the first degree. This evidence of other acts was admitted only for a limited person—purpose. You may only consider this evidence for the purpose
   of deciding whether the defendant had a particular motive, purpose, plan,
   or sexual interest in children. You may not consider this evidence for any
   other purpose. Of course it is for you to determine whether you believe this
   evidence and, if you believe it, whether you accept it for the purpose offered.
   You may give it such weight as you feel it deserves, but only for the limited
   purpose that I described to you.
       “The defendant is not on trial for committing any prior acts. You may not
   consider the evidence of prior acts as a substitute for proof that the defendant
   committed the crimes charged in this case. Specifically, you may not base
   your verdict in this case solely on the evidence of [d]efendant’s prior acts.
   Remember the defendant is on trial here only on this case, not for any prior
   acts. Do not return a guilty verdict unless the [s]tate has proven the crimes
   charged beyond a reasonable doubt.”
Cite as 

 (2025)                                 501

404(4) and OEC 403, that a new trial was neither required
nor appropriate, and that the court should reinstate the previous judgment of conviction.
         Relying on the appellate brief filed in his first
appeal, defendant argued that “mere propensity evidence is
presumptively not coming in because it has low probative
value and an extremely prejudicial effect.” Defendant further argued that the court should grant a new trial under
State v. Hightower, 

, 

 (2021).
         The trial court ruled that the other-acts evidence
relating to defendant’s prior rape of his biological daughter
was relevant and admissible under OEC 404(4), that its probative value was not substantially outweighed by the danger of unfair prejudice under OEC 403, and that a new trial
was neither necessary nor appropriate:
      “THE COURT: Under the analysis on 404(4) as nonpropensity [sic] evidence, it would otherwise be admissible
   but subject to a balancing test and balancing the unfairly
   prejudicial evidence, which I don’t really think it caused
   any delay or confusion amongst any of the jurors, this Court
   would admit that evidence as well. I am denying the remedy of a new trial, I know that you’ll take an exception to
   that, it’s clear that the [prior] judge was concerned enough
   about the admission of the evidence that the special jury
   instruction, which is attached as an exhibit to [the state’s
   memorandum], was given to them specifically instructing
   the jury not to base their verdict on the 1992 incident but
   only on the facts that were before them today, the evidence
   was relevant, this Court would have viewed it both as nonpropensity and propensity, but I stuck with the propensity
   analysis and I conclude after weighing it that it would be
   admissible and I will leave stand the jury’s verdict and
   the sentence imposed, I guess I need to put—sign a new
   judgement.”
Defendant timely appeals the reinstated judgment.
                   LEGAL FRAMEWORK
        OEC 404(4) provides that, “[i]n criminal actions,
evidence of other crimes, wrongs or acts by the defendant”
generally is admissible if it is relevant and withstands OEC
502                                                            State v. Travis

403 balancing.2 Whereas OEC 404(3)3 prohibits the use of
other-acts evidence to show that the act is indicative of character—a person’s disposition or propensity to engage in certain types of behavior—and that the person acted in conformity with that propensity during the events at issue at trial,
State v. Skillicorn, 

, 

 (2021),
OEC 404(4) “does not require the state to prove to the court
that other acts evidence is offered for a purpose other than
to prove character or that the relevance of that evidence does
not rely on propensity reasoning,” State v. Davis, 

, 

 (2024).4 Thus, “[p]ropensity evidence is
admissible against a criminal defendant under OEC 404(4) if
the evidence is relevant under OEC 401 and withstands OEC
403 balancing.” State v. Powers, 

, 733, 

 (2024) (citing Davis, 

) (footnote omitted).5

    2
      OEC 404(4) provides in full:
        “In criminal actions, evidence of other crimes, wrongs or acts by the
    defendant is admissible if relevant except as otherwise provided by:
        “(a) [Certain other rules of evidence] and, to the extent required by the
    United States Constitution or the Oregon Constitution, [OEC 403];
        “(b) The rules of evidence relating to privilege and hearsay;
        “(c) The Oregon Constitution; and
        “(d) The United States Constitution.”
    3
      OEC 404(3) provides:
        “Evidence of other crimes, wrongs or acts is not admissible to prove the
    character of a person in order to show that the person acted in conformity
    therewith. It may, however, be admissible for other purposes, such as proof
    of motive, opportunity, intent, preparation, plan, knowledge, identity, or
    absence of mistake or accident.”
    4
      OEC 404(3) also prohibits evidence that relies on propensity reasoning,
meaning that the proponent’s theory of relevance requires the factfinder to rely
on an inference about the person’s bad character and resultant propensity to commit certain acts at any link in the chain of logical relevance, not just the ultimate
inference. Davis, 

 (discussing State v. Jackson, 

, 

 (2021)).
    5
      We note that OEC 404(4)(a) and OEC 404(4)(d) provide two independent
bases for excluding other-acts evidence: as an exercise of discretion after OEC
403 balancing according to its terms, and as a matter of law when the evidence
would render a trial fundamentally unfair in violation of due process, respectively.
Baughman, 

. Although Williams held that due process does not
require exclusion of propensity evidence in child sexual abuse cases, it is still an
open question with regard to other classes of criminal cases. Baughman, 

 n 8 (“We caution that this court has suggested, but not yet decided, that the
federal constitution may, as a matter of law, prohibit the admission of other acts
evidence to prove propensity in a criminal case in which the defendant is charged
with crimes other than child sexual abuse.” (Citing Williams, 

.)).
Cite as 

 (2025)                                  503

          A court conducting OEC 403 balancing of OEC
404(4) other-acts evidence should consider where the evidence falls on a “spectrum depending on whether character
reasoning in present and how it is used.” Davis, 

. At one end of the spectrum, other-acts evidence that
is offered for a nonpropensity purpose and does not rely on
propensity reasoning generally will be admissible. 

 (citing Williams, 

). “At the other end of the spectrum, other-acts evidence that goes only to character—evidence whose probative value depends on propensity-based
reasoning—with no permissible nonpropensity inferences
the jury may draw from it, is generally excluded because
such evidence ‘generally will have little or no cognizable
probative value.’ ” Powers, 341 Or App at 733-34 (quoting
Williams, 

). The middle of the spectrum consists of evidence “where character reasoning may be implicit
to some degree,” or where the “factfinder could perceive the
evidence as relying on character and action in conformity
with character as its source of relevance to the trial” despite
the proponent offering it for an ultimate noncharacter purpose. Davis, 

 (emphasis in original).
         We have distilled the legal framework for admitting other-acts evidence under OEC 404(4) and OEC 403 set
forth in Davis as follows:
   “First, the court should parse the other ‘acts’ into constituent parts, where possible, to aid in determining the degree
   of character present in the proponent’s theory of relevancy.
   Second, the court should consider the probative value of
   each constitutent part of the evidence to determine whether
   its relevance relies on character reasoning expressly or by
   implication. Third, the court, in its discretion, may admit
   evidence that does not primarily or substantially derive
   its relevance from character-based propensity reasoning.
   Finally, whether a court acts within its permissible range
   of discretion to admit such evidence may depend on whether
   the court took action to mitigate any unfair prejudice, such
   as redacting inflammatory details, limiting the state’s use
   of the evidence, and instructing the jury on how it may consider the evidence.”
State v. Roberto Martinez, 

, 

 (2024), rev den, 

 (2025). Applying that
504                                            State v. Travis

framework, we have held since Davis that other-acts evidence offered to establish a defendant’s sexual interest in
children to further establish the ultimate inference that
the defendant acted with a sexual purpose may withstand
OEC 403 balancing when sexual purpose is an element of
the charged child sexual abuse offenses. State v. Enrique
Martinez, 

, 

 (2025) (“We
understand Davis and [Roberto] Martinez, read in conjunction with Williams, to permit evidence of a defendant’s prior
acts or interactions with children when offered to show that
the defendant’s alleged act in a child sexual abuse case, if
true, was committed for a sexual purpose, subject to OEC
403 balancing.”).
         To be sure, other-acts evidence offered to establish
a defendant’s sexual interest in children is propensity evidence because it relies on an intermediate character inference. State v. Cave, 

, 

 (2022) (“[I]
f the state’s theory of admissibility requires the factfinder to
infer from [the] defendant’s prior actions that he was more
likely to have acted with the same purpose in the charged
instance, that evidence is propensity evidence[.]”); State v.
Nolen, 

, 

 (2022) (holding
that sexual purpose evidence relies on propensity reasoning when the state’s theory of relevance requires the jury to
infer that the defendant’s prior similar sexual abuse of a different victim proves that the defendant acted with a sexual
purpose in the present case). However, we have consistently
held that such propensity evidence may be admissible in a
child sexual abuse prosecution under OEC 404(4) after OEC
403 balancing if it is highly probative of an element of the
charged offenses and the court takes appropriate steps to
mitigate the risk of unfair prejudice by excluding particularly inflammatory details and providing the jury with an
appropriate limiting instruction. State v. Estrada-Vargas,

, ___ P3d ___ (2025); Powers, 

; State v. Champagne, 

,

 (2025); Enrique Martinez, 341 Or App at 24. In
such cases, the other-acts evidence falls in the middle of the
Williams OEC 403 balancing spectrum because, although
the “factfinder could perceive the evidence as relying on
character and action in conformity with character as its
Cite as 

 (2025)                              505

source of relevance to the trial,” the proponent offers it for
an ultimate noncharacter purpose. Davis, 

.
                         ANALYSIS
         Here, the state offered other-acts evidence of defendant’s prior first-degree rape of his teenage biological daughter for two purposes: 1) to establish defendant’s “sexual
motive” for the charged child sexual abuse offenses, and 2)
to establish defendant’s “propensity to sexually abuse children as alleged in this case” and his “propensity to sexually
offend this class of victim.” We need not parse the other-acts
evidence to determine the degree of character in the state’s
theory of relevancy because we conclude that, on its face, its
probative value is primarily derived from character-based
propensity reasoning under either theory. We therefore
conclude that the trial court abused its discretion in again
receiving the evidence.
          We begin with the latter propensity theory. We
understand it to be a “propensity-only” theory, because its
relevance under OEC 401 relies on defendant’s character
(i.e., his sexual interest in children) as an intermediate
inference, to establish the ultimate inference that defendant
acted in conformity with that interest on the charged occasions (i.e., his propensity). See Skillicorn, 

(discussing propensity reasoning, including intermediate
and ultimate inferences, and explaining that “a trial court
must determine the facts—intermediate and ultimate—
that the proponent wants the factfinder to infer from the
evidence”). To spell out the chain of logical reasoning for this
“propensity-only” theory, evidence that defendant subjected
his 15-year-old daughter to sexual intercourse shows that
he has a sexual interest in (his) children; his sexual interest
in (his) children establishes that he is more likely to have
committed the charged sexual acts against M when she was
a minor (and his step-child). Put another way, the fact that
defendant previously sexually abused his 15-year-old daughter shows that he is a sexual abuser who targets teenaged
daughters, which makes it more likely that he committed
the charged sexual acts against M when she was his minor
stepdaughter.
506                                                           State v. Travis

          Other-acts evidence offered to establish the ultimate factual inference that the defendant acted in accordance with his sexual predisposition on the charged occasion falls on the far end of the OEC 403 balancing spectrum
of evidence that “goes only to character and there are no
permissible inferences the jury may draw from it.” Williams,

 (emphasis in original). “Such evidence
generally will have little or no cognizable probative value,
and the risk that the jury may conclude improperly that
the defendant had acted in accordance with past acts on
the occasion of the charged crime will be substantial.” Id.6
Thus, the state offered the other-acts evidence on a propensity-only theory of relevancy under OEC 404(4) as articulated Williams. However, while it is true that Williams identified that theory of relevancy under OEC 401, we do not
understand Williams to have contemplated that theory of
relevancy to withstand OEC 403 balancing, absent the state
identifying some permissible noncharacter or nonpropensity inference the factfinder may draw from it. See 

(noting that the state had cited Leavitt v. Arave, 

 (9th Cir 2004), cert den, 

 (2005), “for
the proposition that the admission of ‘other acts’ evidence
renders the trial fundamentally unfair when that evidence
‘goes only to character and there are no permissible inferences the jury may draw from it’ ” (emphasis in Williams and
Leavitt)); Davis, 

 (“Williams described as classically ‘impermissible’ evidence that ‘goes only to character,’
where ‘there are no permissible inferences the jury may
draw from it.’ ” (Emphasis in Davis and Williams.). Indeed,
Williams did not apply OEC 403 balancing to the evidence
at issue in that case at all because the defendant had only
challenged its admissibility on the basis of relevancy. 

 (“Defendant does not contend that the trial court erred

    6
      Although the Williams court stated only that “it is more likely that the evidence [on that end of the spectrum] will be excluded” after OEC 403 balancing,

 (emphasis added), it is difficult to imagine a scenario in which such
evidence would withstand OEC 403 balancing, given the relative lack of cognizable probative value and the significant risk of unfair prejudice. For that reason,
we have noted that “that theory of relevancy, in which other-acts evidence is
offered to prove that the defendant committed the act charged in the offense, to
be an impermissible propensity purpose” under OEC 404(4) even in child sexual abuse prosecutions. Roberto Martinez, 

 n 8 (emphasis in
original).
Cite as 

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in its OEC 403 analysis, and we therefore do not consider
that issue on review.”).
          Neither we nor the Supreme Court have held that
other-acts evidence offered under OEC 404(4) simply to
establish a defendant’s sexual interest in children as the
ultimate fact withstands OEC 403 balancing. Nor have we
held that other-acts evidence offered to show a defendant’s
sexual interest in children as a step in the logical path
to establishing that a defendant acted on that interest in
committing the charged acts withstands OEC 403 balancing. We understand both of those theories of relevancy to
fail under the OEC 403 balancing framework set forth in
Davis because they fall on the far end of the spectrum first
described in Williams. Such “propensity-only” evidence has
little to no cognizable probative value, and there is a substantial risk of unfair prejudice because the evidence relies
on an intermediate character inference and there are no
ultimate permissible nonpropensity inferences that can be
drawn from the evidence. See Skillicorn, 

(discussing the “long-standing and fundamental prohibition
against” propensity evidence because, among other reasons,
it can “detract from the factfinder’s ability to neutrally and
thoroughly assess the evidence in the case,” “undermine
fundamental constitutional protections, including the presumption of innocence and the requirement that the prosecution prove the elements of each charged crime beyond a
reasonable doubt,” and “result in verdicts based on erroneous assumptions because factfinders may give more weight
to the evidence than it deserves” and “may misuse the evidence by overvaluing its persuasiveness” (internal quotations omitted)). To the contrary, our case law has identified
that risk of unfair prejudice—that the jury will use the
other-acts to find that the defendant committed the charged
act—as precisely what the trial court should take steps to
mitigate through redacting inflammatory details, limiting
the state’s use of the evidence to a permissible noncharacter
or nonpropensity purpose, and properly instructing the jury
on how it may consider the evidence.
        We now turn to the state’s “sexual motive” theory of
relevance. In Travis I, we concluded that the trial court had
508                                            State v. Travis

admitted the other-acts evidence under OEC 404(3) on that
proffered “sexual motive” theory, and we accepted the state’s
concession on appeal that that ruling was in error because
it was propensity evidence, which OEC 404(3) categorically
prohibits. 

. On remand, the trial court
suggested that the state should not have conceded that point
and that it would have viewed the evidence as relevant on
both a nonpropensity and a propensity theory, but that it
“stuck with the propensity analysis” given our acceptance of
the state’s concession in Travis I.
         We are not bound by a respondent’s concession and
must independently assess its legal correctness. State v. Long-Ellis, 

, 

 (2024). We adhere
to our holding in Travis I that the state’s “sexual motive”
theory proffered under OEC 404(3) is propensity evidence
because it relies on propensity reasoning. See Skillicorn, 

 (explaining that evidence offered to prove a fact
that relies on an inference relating to the person’s character
or propensities is propensity evidence “even if the proponent
asserts that it is being offered to prove, for example, ‘intent’
or ‘absence of mistake or accident’ ”); Cave, 

;
Nolen, 

. Although the state sought to establish the ultimate inference that defendant had a motive to
commit the charged child sexual abuse offenses, that theory
relied on “an intermediate character inference, i.e., that …
defendant has a sexual interest in children generally,” and
it “employ[s] propensity reasoning, i.e., that … defendant’s
sexual predisposition makes it more likely that they acted
with” a sexual motive in the charged offenses. Martinez, 

 & n 9.
        However, as noted, OEC 404(4) does not categorically prohibit propensity evidence in child sexual abuse
prosecutions when there is some permissible inference the
jury may draw from it and the court takes measures to mitigate the risk of unfair prejudice. The question in this case is
whether a defendant’s “sexual motive” is such a permissible
inference. Although it is a close question, we conclude that
“sexual motive” is not a permissible inference when, as in
this case, it is offered only to infer that the defendant committed the charged act.
Cite as 

 (2025)                             509

          Motive is “a cause or reason that moves the will
and induces action, an inducement which leads to or tempts
the mind to commit an act.” State v. Hampton, 

,
257 n 12, 

 (1993) (citation omitted). It is “a relevant circumstantial fact that refers to why a defendant did
what [they] did.” 

 Although motive “generally need not
be established by the prosecution to prove guilt,” it is “often
pertinent as the basis to infer that the act was committed, or
to prove the requisite mental state, or to prove the identity
of the actor.” 

 (Emphasis added.) Thus, motive is an intermediate inference that is a basis to infer another ultimate
fact at issue in the case.
         Here, we conclude that the state’s “sexual motive”
theory of relevancy is also a “propensity-only” theory
because its relevancy under OEC 401 relies on defendant’s
character (i.e., his sexual interest in children) as an intermediate inference, to establish the ultimate inference that
defendant committed the charged acts in conformity with
that interest (i.e., his propensity). We do not understand the
state’s sexual motive theory in this case to have been offered
to prove the ultimate fact of defendant’s identity or mental state. There is no dispute that if the charged offenses
occurred, defendant is the perpetrator. And the child sexual
abuse offenses charged in this case do not require the state
to prove that defendant acted with a sexual purpose; that
purpose is inherent in the act itself. See ORS 163.425(1)(a)
(“A person commits the crime of sexual abuse in the second degree when [t]he person subjects another person to
sexual intercourse, oral or anal sexual intercourse[.]”); ORS
163.305(6) (“Sexual intercourse’ has its ordinary meaning
and occurs upon any penetration, however slight; emission
is not required.”); Webster’s Third New Int’l Dictionary 2082
(unabridged ed 2002) (defining “sexual intercourse” as “heterosexual intercourse involving penetration of the vagina
by the penis : COITUS” and “intercourse involving genital
contact between individuals other than penetration of the
vagina by the penis”); ORS 163.305(3) (“ ‘Oral or anal sexual
intercourse’ means sexual conduct between persons consisting of contact between the sex organs or anus of one person
and the mouth or anus of another.”); cf. State v. Hernandez-Esteban, 

, ___ P3d ___ (2025) (distinguishing
510                                            State v. Travis

between alleged conduct charged as first-degree sexual
abuse that is “inherently sexual” and conduct that is not
in analyzing case-specific substantial prejudice of joinder of
charges involving different conduct and victims).
         Thus, we understand the state’s sexual motive theory to go to the ultimate fact that the charged acts were
committed—that defendant’s sexual interest in children is
the cause or reason that moved his will and induced him to
commit the charged acts of second-degree sexual abuse—not
just that if defendant engaged in the charged acts, he did so
with a sexual purpose. Cf. State v. McGee, 

, 

 (2025) (“[W]e find it difficult to imagine
that the jury would not have considered the evidence to cast
defendant as a generally bad person, and therefore more
likely to have engaged in the acts as charged, as opposed to
considering the evidence purely to decide whether, if defendant engaged in the charged acts, he did so with a sexual
purpose.” (Emphasis in original.)).
          Although the trial court on remand did not explicitly set forth its reasoning for concluding that the other-acts
evidence was admissible propensity evidence under OEC
404(4) after OEC 403 balancing, it abused its discretion
in so ruling because both of the state’s proffered theories
amounted to “propensity-only” theories of relevance. Such
evidence falls on the far end of the OEC 403 balancing spectrum as set forth in Williams and Davis. Because neither
the state nor the trial court identified any permissible inference that the jury could draw from the other-acts evidence,
the trial court erred in readmitting the evidence and reinstating the judgment of conviction. And, as we concluded in
Travis I, “we cannot say that there was little likelihood that
the erroneous admission of that evidence affected the verdict.” 

.
        Reversed and remanded.