STATE v. MCGEE (2026)

The state's petition for review is denied. Defendant's contingent petition for review and defendant's pro se supplemental contingent petition for review are denied.

The court has denied the petitions for review filed in this case, and I concur in that denial. I write separately to observe that the state's petition for review raised an important legal issue that the court should consider in an appropriate case.

I respectfully concur in the denial of the petitions for review.

In State v. Williams, 357 Or. 1, 3, 346 P.3d 455 (2015), this court held that, in a prosecution for child sexual abuse, the trial court did not err when it admitted evidence, under OEC 401, OEC 404, and OEC 403, of the defendant's possession of children's underwear. There, we reasoned that “there is a slim but distinct difference between using the underwear evidence to establish defendant's character and propensity to act accordingly, and offering that evidence to establish defendant's sexual purpose.” Williams, 357 Or. at 23, 346 P.3d 455.

In this case, the state offered, and the trial court admitted, evidence that prior to defendant's alleged commission of child sexual abuse, defendant viewed legal, “incest themed” pornography involving adults. The Court of Appeals reversed, relying principally on our decision in State v. Davis, 372 Or. 618, 621, 553 P.3d 1017 (2024). The state petitions for review, arguing that the evidence here, like in Williams, was admissible to establish defendant's sexual purpose to commit child sexual abuse.

I concur with this court's decision to deny review in this case. However, I note that the interaction between Williams and Davis is an issue that may be worthy of this court taking up, when presented through a fact pattern more closely resembling that present in Williams.

PER CURIAM

Duncan, J., concurred and filed an opinion, in which Garrett and DeHoog, JJ., joined. James, J., concurred and filed an opinion.