State v. Brumbach
359 P.3d 490
Or. Ct. App.2015Background
- Defendant was tried for three counts of first-degree sexual abuse (2004–2005) involving his granddaughter; he had prior convictions for attempted sexual abuse (2006, same victim) and third-degree sexual abuse (1998, other victims).
- The state moved in limine to admit evidence of the 2006 and 1998 incidents under OEC 404(3)/404(4) and Johns factors to show intent/propensity; the trial court tentatively allowed mention of the 2006 incident and reserved other rulings.
- During trial the court admitted the 2006 conviction details and later evidence of the 1998 incidents over defense objections; the court expressly declined to perform OEC 403 balancing, saying OEC 404(4) did not require it.
- Defendant objected at trial, specifically asking whether the prejudice was "unfair," and lodged a continuing objection; he raised the due-process unfair prejudice point on appeal.
- After the Supreme Court decided State v. Williams, which held that OEC 404(4) evidence used to show propensity in child-sex-abuse prosecutions must be subjected to OEC 403 balancing to satisfy due process, the appellate court evaluated preservation, error, and harmlessness.
- The court held the objection was preserved, the trial court erred by admitting other-acts evidence without OEC 403 balancing (as required by Williams), and that error was not harmless; conviction reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant preserved the claim that admission of other-acts evidence required due-process (OEC 403) balancing | State: defendant failed to identify Due Process as the source; objection too general | Defendant: requested balancing and specifically asked whether prejudice was "unfair," preserving the due-process claim | Preserved — defense objections were specific enough to alert court to the unfair-prejudice/due-process issue |
| Whether OEC 404(4) evidence must be subjected to OEC 403 balancing upon request in child-sex-abuse prosecutions | State: OEC 404(4) admits relevant other-acts evidence and (argued) due-process balancing differs from OEC 403 or is not required | Defendant: under Williams trial court must balance probative value against unfair prejudice (OEC 403) before admitting propensity evidence | Error to admit other-acts evidence without OEC 403 balancing; Williams requires such balancing to satisfy Due Process in child-sex-abuse cases |
| Whether prior precedent (Dunn, Leach, Cavaner, Phillips) barred OEC 403 balancing for 404(4) evidence | State: prior appellate cases supported not balancing under OEC 404(4) | Defendant: Williams supersedes those cases on this point | Williams overruled that aspect of prior Appellate Court precedent; 403 balancing is required by due process |
| Whether the failure to balance was harmless error | State: any error was harmless | Defendant: error was prejudicial because other-acts evidence went to the core issue (propensity and acting on predisposition) | Not harmless under Chapman/Van Arsdall standard; reversal and remand required |
Key Cases Cited
- State v. Williams, 357 Or 1 (Ore. 2015) (OEC 404(4) evidence used to show propensity in child-sex-abuse prosecutions must be subjected to OEC 403 balancing to satisfy due process)
- State v. Pitt, 352 Or 566 (Ore. 2012) (appellate review of evidentiary rulings uses the trial-court record at time of ruling)
- State v. Dunn, 160 Or App 422 (Or. Ct. App. 1999) (held OEC 404(4) admissibility could be exercised without OEC 403 balancing; superseded on that point by Williams)
- State v. Johns, 301 Or 535 (Ore. 1986) (doctrine-of-chances/Johns factors for admitting other-acts evidence to prove intent)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (federal harmless-error standard for constitutional errors)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (factors for assessing whether constitutional error is harmless)
- Dowling v. United States, 493 U.S. 342 (U.S. 1990) (permitting courts to consider prejudice risk to avoid due-process violations)
- United States v. Lovasco, 431 U.S. 783 (U.S. 1977) (due process protects against practices violating "fundamental conceptions of justice")