State v. Sewell, 307 P.3d 464

Defendant was convicted of two counts of third-degree sexual abuse, one count of furnishing alcohol to a minor, and one count of contributing to the sexual delinquency of a minor.
The victim, age 17, had sexual encounters with the 35-year-old defendant during a weekend in August 2004; the victim’s eighteenth birthday was August 29, 2004.
During trial, the prosecutor asked the victim about four of the five encounters and whether the defendant refused to wear a condom; the victim answered affirmatively each time.
Defendant objected to the condom-testimony as irrelevant and unfairly prejudicial under OEC 401 and 403; the trial court overruled the objections.
In a prior appeal (Sewell I), this court reversed for failure to apply Mayfield’s four-step analysis and remanded for proper OEC 403 analysis.
On remand, the trial court conducted the Mayfield analysis, determined the evidence’s probative value outweighed by the risk of prejudice, and admitted the evidence as crucial to the victim’s credibility; the court affirmed convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OEC 403 balancing was abused in admitting the condom testimony	Sewell I deemed the evidence marginally relevant and potentially prejudicial.	Admission was unfairly prejudicial and lacks substantial probative value.	No abuse; record supports admissibility.
Whether remand for Mayfield analysis complied with legal standards and supported the court’s ruling	Remand allowed proper OEC 403 weighing to determine admissibility.	Discretion lies within permissible range; balance may differ, but is authorized.	Remand analysis within range of legally permissible outcomes; affirmed admission.

State v. Mayfield, 302 Or 631 (Or. 1987) (four-step OEC 403 analysis for admissibility)
State v. Sewell, 222 Or App 423, 222 Or App 423 (Or. App. 2008) (adh’d to on recon, remand for Mayfield analysis)
State v. Sewell, 225 Or App 296, 225 Or App 296 (Or. App. 2009) (Sewell I reconciliation)
State v. Poitra, 206 Or App 207 (Or. App. 2006) (harmless error framework governing likelihood of effect on verdict)
State v. O’Key, 321 Or 285 (Or. 1995) (unfair prejudice analysis under OEC 403)
State v. Titus, 328 Or 475 (Or. 1999) (abuse of discretion standard for evidentiary rulings)
State v. Williams, 313 Or 19 (Or. 1992) (probative value vs prejudice balancing under OEC 403)
State v. Lawson, 352 Or 724 (Or. 2012) (probative value is strength of relationship to proposition proved)