State v. Champagne

No. 547 June 18, 2025 343 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL WAYNE CHAMPAGNE, Defendant-Appellant. Clackamas County Circuit Court 19CR60073; A175059 On remand from the Oregon Supreme Court, State v. Champagne, 372 Or 812, 558 P3d 847 (2024). Katherine E. Weber, Judge. Submitted on remand December 04, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Oregon Public Defense Commission, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the answering brief for respondent. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the supplemental brief for respondent. Before Ortega, Presiding Judge, Hellman, Judge, and Landau, Senior Judge. LANDAU, S. J. Affirmed. 344 State v. Champagne LANDAU, S. J. This case returns to us on remand from the Oregon Supreme Court. The issue on remand is whether, in this prosecution for various sexual offenses against two children, the trial court erred in admitting evidence that defendant had previously abused a third child. In our original opinion, we concluded that the trial court did not err in admitting that evidence. Defendant petitioned for review. While that petition was pending, the Supreme Court decided State v. Davis, 372 Or 618, 553 P3d 1017 (2024) (Davis III).1 In that case, the court elaborated its existing analysis of the admis- sibility of evidence of “other acts” under OEC 404(4). It then vacated our original opinion in this case and remanded for reconsideration in light of its decision in Davis III. On recon- sideration, we conclude that the trial court did not err in admitting the evidence of defendant’s prior sexual abuse of the third child. We therefore affirm. I. BACKGROUND The relevant facts are not in dispute. The state charged defendant with multiple sexual offenses, including first-degree sexual abuse, ORS 163.427. All the offenses arose out of defendant’s alleged abuse of his granddaugh- ter, A, and his step-granddaughter, O. The children were between the ages of six and nine when the offenses occurred. The evidence was that defendant would begin by giving the girls back rubs or “belly rubs” and then progress to digi- tal penetration, oral sexual contact, and sexual intercourse. Before trial, the state filed a motion to admit testimony of B that defendant had sexually abused her as well, some years earlier, as well as evidence that defendant ultimately pleaded guilty to two counts of first-degree sexual abuse, based on B’s reports of abuse. The state asserted that the testimony was relevant and admissible as nonpropensity evidence under OEC 404(3). According to the state, the 1 As we explain below, at issue in that case was the admissibility of cer- tain other acts evidence. The trial court admitted the evidence. We reversed and remanded. State v. Davis, 290 Or App 244, 414 P3d 887 (2018) (Davis I). On remand, the trial court again concluded that the evidence was admissible. We again reversed. State v. Davis, 319 Or App 737, 511 P3d 10 (2022) (Davis II). The Supreme Court allowed the state’s petition for review and, in Davis III, reversed our decision in Davis II and remanded to this court for further proceedings. Cite as 341 Or App 343 (2025) 345 evidence was admissible to show defendant’s sexual pur- pose in committing the acts against A and O and, as such, had significant probative value in that it showed a consis- tent and repeated pattern of inappropriate conduct around children. In the alternative, the state argued that the evi- dence of defendant’s interest in sexually abusing children was admissible under OEC 404(4), because it was relevant to prove that he acted with that purpose with respect to A and O. Defendant responded that the evidence was relevant but not for a “noncharacter purpose.” He argued that, if the court allowed B to testify, it would be “impossible * * * to have a fair trial in this matter.” Judge Rastetter heard the motion and agreed with the state. He found that B’s testimony was relevant under OEC 404(3) for the nonpropensity purpose of showing defen- dant’s sexual interest in children and that he acted with a sexual purpose. The judge also concluded that the evidence was admissible under OEC 403, because it had significant probative value that was not outweighed by the danger of unfair prejudice. Judge Rastetter additionally found that B’s testimony was admissible under OEC