State v. Baughman, 361 Or. 386

Background

Defendant (Baughman) was convicted of multiple counts of child sexual abuse; the State sought to admit evidence of uncharged sexual abuse of another child (A) and of the same victim (B) from a different county.
The trial court admitted the uncharged-act evidence, finding it relevant for nonpropensity purposes (identity, intent, and to bolster the victim), and instructed the jury to consider A’s abuse only as proof of intent for B’s charges.
The jury convicted on eight counts; defendant appealed arguing the trial court erred in admitting other-acts evidence and misapplied the required balancing under OEC 403.
The Court of Appeals reversed, holding that OEC 404(4) requires traditional OEC 403 balancing and that the trial court erred because the A evidence was relevant only to propensity (except possibly intent under Johns) and not to identity or credibility.
The State sought review, arguing OEC 404(4) requires only a narrower due-process exclusion (exclude evidence only if admission would render the trial fundamentally unfair).
The Oregon Supreme Court affirmed the Court of Appeals, holding that OEC 404(4) makes OEC 403 applicable according to its terms (traditional balancing), and that the trial court erred in treating A’s abuse as relevant for the nonpropensity purposes it identified; the case is remanded for proper OEC 404/403 analysis.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Baughman)	Held
Does OEC 404(4) require traditional OEC 403 balancing or only a narrower due-process test?	OEC 404(4)(a) makes OEC 403 applicable only "to the extent" the Constitution requires — i.e., exclude only when admission would render trial fundamentally unfair.	OEC 404(4) requires courts to apply OEC 403 by its terms (traditional balancing) to assess whether probative value is substantially outweighed by unfair prejudice.	OEC 404(4) makes OEC 403 applicable and courts must apply OEC 403 according to its terms; due-process exclusion (fundamental unfairness) is a separate, independent ground for exclusion.
When other-acts evidence is offered for nonpropensity purposes, what analysis must trial courts follow?	(State focused on constitutional sufficiency)	Defense: If evidence is not relevant for a nonpropensity purpose, it must be excluded because it is propensity evidence.	Trial courts must first determine relevance for nonpropensity purposes under OEC 404(3); if relevant, then apply OEC 403 balancing. If not relevant under 404(3), consider OEC 404(4) and then OEC 403.
Was evidence of A’s abuse admissible for nonpropensity purposes (identity, intent, bolster credibility)?	State argued relevance for intent, identity, and to bolster B’s credibility.	Defendant argued the proffered evidence was essentially propensity evidence and not relevant to those nonpropensity purposes.	The Court held A’s abuse was not relevant to identity or to bolster credibility and did not justify the trial court’s nonpropensity reasoning; Johns/doctrine-of-chances intent application was limited and did not rescue the other justifications.
Remedy after erroneous admission of other-acts evidence: remand for limited reanalysis or automatic new trial?	The State asked for a limited remand to allow the trial court to reweigh under proper OEC 403; if the court again admits evidence, no retrial necessarily required.	Defendant argued that an appellate court must not cede harmlessness analysis and that an erroneous other-acts ruling typically requires a new trial.	The Court remanded to the trial court to permit correct OEC 404/403 analysis and to let the trial court decide, based on that analysis, whether to exclude the evidence or order appropriate proceedings (which may include a new trial).

Key Cases Cited

State v. Williams, 357 Or 1 (interpreting interplay of OEC 404(3), OEC 404(4), and OEC 403 and holding OEC 404(4) supersedes OEC 404(3) in criminal cases)
State v. Turnidge, 359 Or 364 (applying two-step analysis: nonpropensity relevance under OEC 404(3) then OEC 403 balancing)
State v. Pitt, 352 Or 566 (restraining misuse of other-acts evidence to prove identity or to bolster credibility)
State v. Johns, 301 Or 535 (doctrine-of-chances/Johns analysis for intent in some other-acts contexts)
State v. Williams, 357 Or 1 (same as above; cited for constitutional application of OEC 403)
Dowling v. United States, 493 U.S. 342 (trial court’s exclusion authority mitigates risk that other-acts evidence will produce unconstitutional prejudice)
Old Chief v. United States, 519 U.S. 172 (definition of "unfair prejudice" in evidentiary balancing)
U.S. v. LeMay, 260 F.3d 1018 (9th Cir.) (holding FRE 413/414 evidence remains subject to FRE 403 balancing and due process)
State v. Davis, 336 Or 19 (harmless-error standard requiring reversal unless error had little likelihood of affecting verdict)
State v. Cartwright, 336 Or 408 (remand for court hearing and possible re-evaluation when procedural evidentiary errors affect trial fairness)