Court: Court of Appeals of Oregon; March 5, 1996; Oregon; State Appellate Court
Defendant appeals his convictions for three counts of sexual abuse in the third degree, arguing that the trial court wrongly denied his pretrial motion to exclude evidence of his cross-dressing. The victim, his daughter, reported to school officials and police that defendant engaged in inappropriate sexual contact, including touching her breast and vaginal areas and forcing her to suck on his breasts in exchange for privileges. Although defendant admitted to cross-dressing, he denied any sexual misconduct. At trial, the state sought to introduce evidence of his cross-dressing, which the trial court deemed relevant to corroborate the victim's testimony. However, on appeal, the court found that the evidence did not specifically corroborate the circumstances of the alleged abuse, as the victim did not claim the abuse occurred while defendant was cross-dressed. Consequently, the appellate court ruled that the trial court erred in admitting the evidence, vacated the convictions, and remanded the case for further proceedings.
Corroborative evidence may have enhanced the victim's credibility but did not impact the likelihood of the defendant committing sexual abuse, rendering it irrelevant for corroboration purposes. However, evidence of the defendant cross-dressing is pertinent to establish whether he subjectively considers his breasts intimate, which is crucial for the third-degree sexual abuse charge under ORS 163.415. The state must demonstrate that the defendant subjected the victim to sexual contact, defined as touching intimate parts for sexual gratification. The third charge alleges that the defendant caused the victim to touch his breast, which is not inherently considered intimate unless the defendant perceives it as such. The relevance of cross-dressing evidence supports this subjective determination.
While relevant evidence is generally admissible, it may be excluded if its probative value is significantly outweighed by prejudicial risk. The trial court initially analyzed the evidence but focused on its corroborative value without addressing its relevance based on the third charge. Consequently, the decision regarding admissibility is remanded for the court to reassess whether the probative value of the cross-dressing evidence outweighs its prejudicial effect. If deemed admissible, the original judgment will be reinstated; if not, a new trial will be ordered. The court also noted that all relevant evidence is admissible unless explicitly restricted by law, and it must not instruct the jury on the objectivity of intimacy except for breasts. The trial court acknowledged the potential prejudicial nature of the evidence while admitting its relevance in corroborating the victim's account.
