443 P.3d 1195
Or. Ct. App.2019Background
- Defendant Plueard appealed a conviction, and this court reversed and remanded in State v. Plueard, 296 Or. App. 580 (2019), because the trial court admitted "grooming" evidence improperly and the error was not harmless.
- The panel included a footnote (footnote 1) suggesting that, on remand, the trial court might develop the evidentiary record under State v. Henley and could determine whether the state had established the scientific validity of the grooming evidence; if admissible, no new trial would be necessary.
- Defendant filed a petition for reconsideration asking deletion of that footnote, arguing it was overbroad and directive.
- Defendant relied on State v. Baughman to argue this court erred by stating that no new trial would be necessary, because Baughman left the determination whether a new trial is needed to the trial court after it reassesses purposes and conducts a new OEC 403 analysis.
- The state conceded the trial court ultimately must decide whether a new trial is necessary after reconsidering admissibility but argued it was less likely here that a new trial would be needed because the proffered purpose for the grooming evidence would not change.
- The appellate court granted reconsideration, concluded the footnote was unnecessary and unduly limiting given the ordinary meaning of its "Reversed and remanded" disposition, and deleted footnote 1; the remainder of the opinion was adhered to as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the panel should retain footnote asserting that if the trial court finds grooming evidence admissible on remand, no new trial will be necessary | State: less likely a new trial will be needed here because the proffered purpose for the grooming evidence will remain the same | Plueard: the footnote was overdirective; under Baughman the trial court must decide if a new trial is necessary after reevaluating admissibility and purposes | Court: footnote was unnecessary and improperly limiting; deleted the footnote and left remand scope to trial court under "Reversed and remanded" |
| Whether an appellate opinion may preclude the trial court from ordering a new trial on remand after reassessing admissibility | State: argued appellate statement was permissible because purpose wouldn’t change | Plueard: appellate court cannot foreclose trial court’s remedial discretion on remand | Court: appellate tagline "Reversed and remanded" suffices; trial court retains discretion to determine necessary proceedings, including whether a new trial is required |
Key Cases Cited
- State v. Henley, 363 Or. 284, 422 P.3d 217 (Or. 2018) (remand may permit development of evidentiary record concerning admissibility of proffered grooming evidence)
- State v. Baughman, 361 Or. 386, 393 P.3d 1132 (Or. 2017) (on remand the trial court should reassess purposes for other-acts evidence and may determine whether a new trial is necessary)
- Allen v. Premo, 251 Or. App. 682, 284 P.3d 1199 (Or. App. 2012) (an appellate disposition of "Reversed and remanded" ordinarily sends the case back as though the original proceeding did not occur)
- State v. Barajas, 262 Or. App. 364, 325 P.3d 772 (Or. App. 2014) (appellate taglines must be read in the context of the opinion as a whole)