The Facts/ Procedural History
Defendant charged with rape, attempted sodomy and attempted kidnapping of a thirteen-year old girl. Defendant contends at trial the court incorrectly admitted evidence that “he approached another thirteen-year old girl with the ploy of searching for a nonexistent white German shepherd, offered her $20, and then kidnapped her, took her to his trailer, and forcible raped and sodomized her.” The defendant used the same ploy in the instant case, but did not in fact rape/sodomize/kidnap the victim. He only used a German shepherd to entice the victim into the car, which the victim did not do. The trial court admitted the prior behavior as evidence of intent to commit the crime. The only evidence of his intent to do so was evidence of his prior acts for which he was convicted 7 years earlier.
Whether the evidence of prior behavior is admissible in establishing the intent element of attempted rape, sodomy, and kidnapping.
Oregon Law: “Conviction for attempt requires proof beyond a reasonable doubt that the defendant intentionally engaged in conduct which constitutes a substantial step toward commission of the crime.” Substantial step toward commission of a crime: “(1) advance the criminal purpose charged, and (2) provide some verification of the existence of that purpose.” “Mere preparation is insufficient to constitute a substantial step.”
No, evidence inadmissible. When evaluating a substantial step, behavior “need not be incompatible with innocence to be punishable as an attempt … it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to commit the particular crime charged.” Defendant’s intent is demonstrated by his use of the same ploy in the instant case as was used in the past. The existence of the past act corroborates defendant’s purpose to commit that crime. However, the victim did not take a “substantial step” to the degree that a reasonable jury could conclude his intent to commit the charged crimes. The act of enticing the victim does corroborate his intent, but does not do so strongly enough.