279 Or. App. 663
Wasco Cty. Cir. Ct., O.R.2016Background
- Defendant was convicted of two counts of third-degree sexual abuse for kissing a 16‑year‑old girl at a sleepover; acquitted on two harassment counts.
- Before trial defendant moved in limine to exclude evidence of prior intimate conduct with the victim (kissing, snuggling, lying on couch, phone contacts, asking for photos), citing OEC 403 and Mayfield.
- At pretrial hearing the state argued the prior conduct showed sexual propensity; the trial court admitted the evidence but did not perform OEC 403 balancing and defendant did not re‑urge the balancing orally at the hearing.
- After briefs and argument, the Oregon Supreme Court decided State v. Williams, holding that in child sexual abuse prosecutions prior‑acts propensity evidence may be admissible under OEC 404(4) but, on request, trial courts must determine whether probative value is outweighed by unfair prejudice (i.e., conduct OEC 403 balancing).
- On appeal the defendant argued the trial court erred by failing to conduct the required OEC 403 balancing before admitting prior‑acts evidence; the state argued the objection was unpreserved or that narrower due‑process balancing would permit admission.
- The court held defendant preserved the OEC 403 request via his written motion, that the trial court erred by not performing OEC 403 balancing, and that the error was not harmless. Convictions reversed and remanded for new trial.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant preserved a request for OEC 403 balancing when he raised it in a written motion but did not orally repeat it at the hearing | Preservation failed because defendant did not reiterate the OEC 403 request at the hearing | Preserved by written motion citing OEC 403 and Mayfield; oral reiteration not required | Preserved: written motion sufficiently apprised court and state; Walker governs preservation analysis |
| Whether trial court was required to perform OEC 403 balancing before admitting prior‑acts evidence in a child sexual abuse prosecution after Williams | Trial court’s omission harmless or due‑process balancing narrower than full OEC 403 | Williams requires, on request, OEC 403 balancing before admitting propensity or other‑purpose prior‑acts evidence | Trial court erred by not conducting OEC 403 balancing; Williams/Turnidge mandate OEC 403 balancing |
| Whether the failure to perform OEC 403 balancing was harmless beyond a reasonable doubt | Evidence admissible; error harmless | Admission of prior intimacy evidence may have affected verdict; not harmless | Not harmless: exclusion could have affected jury’s verdict; reversal and remand for new trial |
| Scope of required balancing when prior bad acts admitted for non‑propensity purposes under OEC 404(3) | Court need not apply OEC 403 in full | If properly requested, OEC 403 balancing is required regardless of OEC 404(3) vs 404(4) theory | OEC 403 balancing required for prior‑acts evidence in child sexual abuse cases, under either theory |
Key Cases Cited
- State v. Williams, 357 Or 1 (Oregon Supreme Court 2015) (held OEC 404(4) governs prior‑acts propensity evidence in child sexual abuse cases and, on request, courts must determine whether probative value is outweighed by unfair prejudice)
- State v. Turnidge, 359 Or 364 (Oregon Supreme Court 2016) (explained Williams and confirmed that on proper motion OEC 403 balancing is required for prior‑acts evidence)
- State v. McKay, 309 Or 305 (Oregon Supreme Court 1990) (prior‑acts evidence admitted to show propensity in sexual‑abuse context under earlier precedent)
- State v. Mayfield, 302 Or 631 (Oregon Supreme Court 1987) (discussed logical relevance and OEC 403 unfair prejudice balancing)
- State v. Walker, 350 Or 540 (Oregon Supreme Court 2011) (preservation rule: written pretrial arguments can preserve issues without oral repetition; assess totality of circumstances)
- State v. Brumbach, 273 Or App 552 (Or. Ct. App. 2015) (held failure to perform OEC 403 balancing in child sexual abuse case is reversible error)
- State v. Altabef, 279 Or App 268 (Or. Ct. App. 2016) (noted OEC 403 balancing required regardless of whether relevance is framed under OEC 404(3) or 404(4))
- Delaware v. Van Arsdall, 475 US 673 (U.S. Supreme Court 1986) (harmless‑beyond‑a‑reasonable‑doubt standard for constitutional errors)