State v. Altabef, 429 P.3d 407

Defendant was charged with multiple sexual offenses against his niece for incidents in Nov 2012–Jan 2013; trial admitted evidence of earlier conduct without OEC 403 balancing.
Before trial, defendant moved to exclude evidence of the first incident and of conduct occurring outside Oregon; the trial court admitted the evidence as relevant without conducting an OEC 403 probative-vs.-prejudice balancing.
On initial appeal, the court held the trial court erred by failing to perform OEC 403 balancing and remanded for a new trial because the error could not be deemed harmless.
The Oregon Supreme Court vacated and remanded the appellate decision for reconsideration in light of State v. Baughman, Mazziotti, and Zavala, which clarified OEC 403 balancing requirements, harmless-error analysis, and the appropriate remedy (limited remand vs. new trial).
On remand, the court again finds reversible error in the trial court’s failure to conduct OEC 403 balancing, rejects the state’s contention that the error was harmless, and orders a limited remand for the trial court to perform OEC 404/403 analysis and decide whether the evidence should be received or a retrial is required.

Issue	State's Argument	Altabef's Argument	Held
Did the trial court err by admitting prior acts evidence without OEC 403 balancing?	The evidence was relevant for nonpropensity purposes so balancing omission was not fatal.	The court erred by admitting prior-acts evidence without OEC 403 balancing.	Yes; trial court erred by failing to perform OEC 403 balancing.
Was that error harmless?	Error was harmless because evidence could be admitted for nonpropensity purposes (analogous to Zavala).	Error was prejudicial and not harmless given multiple relevance theories and fact-specific prejudice arguments.	Not harmless here; reversal and remand required.
What remedy is appropriate for OEC 403 balancing error?	Limited remand unnecessary if error harmless.	Requested exclusion or new trial.	Limited remand: trial court must redo OEC 404/403 analysis and decide whether evidence should be received or retrial is needed (per Baughman/Mazziotti).
Does showing a nonpropensity purpose automatically make balancing errors harmless?	Yes—if evidence is relevant for nonpropensity purpose, balancing omission is often immaterial.	No—nonpropensity relevance does not waive need for balancing; fact-specific analysis required.	No—nonpropensity relevance alone does not render the error harmless (Mazziotti distinguishes Zavala).

State v. Altabef, 279 Or. App. 268 (appellate decision remanding for error in admitting prior-acts evidence) (appellate opinion reversing convictions on Counts 2 and 4 and remanding).
State v. Baughman, 361 Or. 386 (establishes that OEC 404(4) requires OEC 403 balancing and prescribes limited-remand remedy).
State v. Mazziotti, 361 Or. 370 (holds trial courts must conduct traditional OEC 403 balancing even for nonpropensity purposes; remand for balancing).
State v. Zavala, 361 Or. 377 (concludes omission of balancing can be harmless where defendant fails to advance fact-specific arguments and the purpose admitted is simple nonpropensity predisposition).
State v. McKay, 309 Or. 305 (recognizes sexual-predisposition as a nonpropensity theory for admitting other-acts evidence).