279 Or. App. 268
Marion Cty. Cir. Ct., O.R.2016Background
- Defendant (child's uncle) was tried for sexual offenses based on two incidents alleged by child J; two other alleged incidents (in Washington and during travel) were uncharged but proferred as prior bad acts.
- Defendant moved in limine to exclude evidence of the uncharged acts as irrelevant and unduly prejudicial and requested OEC 403 balancing; trial court admitted the evidence and said it would give a limiting instruction but did not place balancing findings on the record.
- At trial, defendant was convicted of first-degree sodomy (Count 2) and first-degree sexual abuse (Count 4); acquitted on two other counts; defendant appealed raising eight assignments, focused here on the seventh (failure to balance under OEC 403 after objection to prior-acts evidence).
- Oregon Supreme Court’s decision in State v. Williams held that in child-sex-abuse prosecutions prior-bad-acts evidence under OEC 404(4) is admissible only if relevant and, consistent with the Due Process Clause, the trial court balances probative value against unfair prejudice under OEC 403.
- This court (Or. Ct. App.) held that the trial court here failed to perform the required OEC 403 balancing despite defendant’s request, which—under Williams and related appellate precedents—was reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court must perform OEC 403 balancing before admitting prior-bad-acts evidence in child-sex-abuse prosecution | State: evidence admissible under OEC 404(3)/(4) for nonpropensity purposes (context, disclosure, opportunity, predisposition); limiting instruction suffices | Defendant: OEC 404(4) evidence still requires OEC 403 balancing; prior acts were irrelevant or unduly prejudicial | Court: Under Williams, trial court must balance probative value vs. unfair prejudice under OEC 403; failure to do so was reversible error |
| Whether the trial court’s on-the-record reasoning was adequate to show OEC 403 balancing | State: relevance and limiting instruction justified admission without further balancing | Defendant: absence of balancing finding means no proper OEC 403 analysis occurred | Held: Record shows no balancing; remand for new trial because error not harmless beyond reasonable doubt |
| Whether relevance under OEC 404(3) or 404(4) eliminates need for OEC 403 weighing | State: if relevant under 404 provisions, admission appropriate | Defendant: even if relevant, constitutional due process requires OEC 403 weighing in child-sex-abuse cases | Held: Regardless of which 404 clause applies, court must perform OEC 403 balancing when properly requested |
| Whether the error was harmless | State: probative uses (predisposition, delayed reporting) justified evidence; convictions still valid | Defendant: prejudice likely; balancing might have excluded evidence | Held: Cannot conclude error was harmless beyond a reasonable doubt; convictions reversed and remanded for new trial on affected counts |
Key Cases Cited
- State v. Williams, 357 Or. 1 (child-sex-abuse prior-acts admissibility requires OEC 403 balancing)
- State v. Baughman, 276 Or. App. 754 (trial court’s failure to conduct OEC 403 balancing on prior-acts evidence reversible)
- State v. Brumbach, 273 Or. App. 552 (application of Williams; need for OEC 403 analysis)
- State v. Turnidge, 359 Or. 364 (if relevant under OEC 404(3), court on proper motion must weigh under OEC 403)
- State v. Mayfield, 302 Or. 631 (establishing four-step OEC 403 balancing framework)
- State v. McKay, 309 Or. 305 (prior sexual contacts admissible to show sexual inclination toward victim)
- State v. White, 252 Or. App. 718 (prior acts admissible to explain delayed reporting)
- State v. Phillips, 217 Or. App. 93 (prior interpretation that OEC 404(4) precluded OEC 403 balancing in criminal cases)