State v. Febuary, 292 P.3d 604

Defendant was convicted after a jury trial on multiple counts, including two counts of first-degree sexual abuse involving S.M., one count of furnishing alcohol to a minor, one count of attempted sodomy, and one count of harassment.
Before trial, defendant moved to exclude evidence of prior acts by S and A to show a plan under OEC 404(3).
S and A testified at the pretrial and trial proceedings about prior misconduct by defendant toward them, with allegations of grooming and sexual touching.
The trial court admitted S and A’s testimony as evidence of a plan under OEC 404(3) and gave a limiting instruction.
On appeal, defendant argued the prior acts were insufficiently similar to establish a plan and that the court should have performed OEC 403 balancing; the court concluded S’s acts were insufficiently similar while A’s acts were sufficiently similar, reversing on that basis and remanding.
The court held that 404(3)’s plan standard requires a high degree of similarity and that the error regarding S was not harmless, leading to reversal and remand; the remaining issues were not reached.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of S and A under 404(3)	S and A evidence shows defendant's plan to abuse S.M.	Evidence is insufficiently similar for plan and was unduly prejudicial	S excluded; A admitted as plan evidence.
Whether trial court should have engaged in 403 balancing	403 balancing required to weigh probative value against prejudice	No balancing required in criminal cases under 404(4)/403 framework	No OEC 403 balancing required in criminal cases; error not reaching balancing.

State v. Johns, 301 Or 535 (1986) (limits admissibility of prior acts under 404(3) for noncharacter purposes)
State v. Leistiko, 352 Or 172 (2012) (plan requires high similarity between prior acts and charged conduct)
State v. Pitt, 352 Or 566 (2012) (pattern of similar acts may show plan or design; similarity level higher than for intent)
State v. Bunting, 189 Or App 337 (2003) (concurrence of common features links prior acts to charged conduct for plan)
State v. White, 53 Or App 856 (1981) (plan analysis involves common features across acts)
State v. Johnson, 340 Or 319 (2006) (distinguishes plan from mere intent and discusses required similarity)
State v. Phillips, 217 Or App 93 (2007) (OEC 404(4) precludes 403 balancing of probative value against prejudice in criminal cases)
State v. Kaylor, 252 Or App 688 (2012) (similarity necessary for noncharacter evidence remains key)