State v. Zavala, 361 Or. 377

Background

Defendant Edward Zavala was convicted at a bench trial of three counts of first‑degree sexual abuse of two children; he admitted tickling but denied sexual touching with intent to arouse.
The state introduced testimony about an uncharged incident of inappropriate sexual conduct by Zavala toward one victim (a former coworker’s observation).
Defendant objected at trial characterizing the testimony as improper prior‑bad‑act evidence; the trial court admitted it as non‑propensity evidence to show sexual predisposition for the victim (citing McKay) without conducting an explicit OEC 403 balancing.
The Court of Appeals, after this court’s decision in State v. Williams, concluded the trial court’s failure to perform OEC 403 balancing was plain error and vacated the convictions, remanding for the trial court to balance.
The Oregon Supreme Court granted review and, assuming arguendo preservation of a 403 objection, held any failure to balance did not significantly affect the trial court’s decision to admit the evidence and affirmed the convictions.

Issues

Issue	State's Argument	Zavala's Argument	Held
Whether a trial court must conduct OEC 403 balancing before admitting other‑acts evidence offered for a nonpropensity purpose under OEC 404(3) / 404(4)	No duty to balance unless a party specifically requests it; admission was proper without balancing	Trial court erred by failing to apply OEC 403 balancing; post‑Williams that balancing is required and error is plain	Court assumed preservation but held any failure to balance did not materially affect admission; evidence admissible to show sexual predisposition and conviction stands
Whether the Court of Appeals properly exercised ORAP 5.45(1) to correct the alleged plain error	The Court of Appeals was wrong to treat lack of 403 balancing as plain error where pre‑Williams law was unsettled	Agreed with Court of Appeals that remand or reversal was required absent balancing	Court reversed Court of Appeals: even if error, it did not significantly affect outcome, so relief not warranted
Whether the uncharged‑acts evidence was admissible for a nonpropensity purpose (sexual predisposition for same victim)	Evidence was admissible under the nonpropensity clause of OEC 404(3) and subject to OEC 403	Evidence was prejudicial and undermined defendant’s theory (false accusation by mother) requiring exclusion	Evidence was relevant for nonpropensity purpose (McKay); defendant did not show unfair prejudice substantially outweighed probative value, so admissible
Whether a remand for rebalancing (or retrial) was required	Remand was unnecessary if no prejudice; state opposed reversal/remand	Zavala sought reversal/retrial or at least remand to correct the balancing error	Court denied remand/retrial: absent a meritorious showing that balancing would have excluded the evidence, there was little likelihood error affected conviction

Key Cases Cited

State v. Williams, 357 Or 1 (2015) (clarified interplay of OEC 404(4) and 404(3) and addressed balancing for other‑acts evidence)
State v. McKay, 309 Or 305 (1990) (prior acts involving same victim admissible to show defendant’s sexual predisposition for that victim)
State v. Baughman, 361 Or 386 (2017) (explained that OEC 404(4) supersedes only first sentence of 404(3) and reiterated OEC 403 balancing for nonpropensity evidence)
State v. Shaw, 338 Or 586 (2005) (three‑part test for admissibility of other‑acts evidence under OEC 404(3), including OEC 403 analysis)
State v. Turnidge, 359 Or 364 (2016) (assessing admissibility of evidence under OEC 404(3) and OEC 403 in response to a proper motion)
State v. Davis, 336 Or 19 (2003) (harmless‑error principle: reversal required only if error likely affected conviction)