STATE OF OREGON, Plaintiff-Respondent, v. DAVID HENRY HOLT, Defendant-Appellant.
Wasco County Circuit Court 1200081M; A154052
Court of Appeals of Oregon
Submitted on remand August 30, 2017, reversed and remanded July 18, 2018
292 Or App 826 (2018) | 426 P3d 198
Janet L. Stauffer, Judge.
LAGESEN, P. J.; DEVORE, J.; JAMES, J.
Reversed and remanded.
On remand from the Oregon Supreme Court, State v. Holt, 361 Or 800, 400 P3d 920 (2017).
Peter Gartlan, Chief Defender, and Alice S. Newlin, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the supplemental briefs were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
LAGESEN, P. J.
Reversed and remanded.
This case comes to us on remand from the Supreme Court. State v. Holt, 361 Or 800, 400 P3d 920 (2017) (Holt II). In our initial decision, we held that the trial court committed reversible error by admitting evidence of defendant‘s previous conduct toward the victim without first balancing the probative value and prejudicial effect of that evidence under OEC 403, and we remanded for a new trial. State v. Holt, 279 Or App 663, 381 P3d 897 (2016) (Holt I). Subsequently, the Supreme Court issued decisions in State v. Zavala, 361 Or 377, 393 P3d 230 (2017), State v. Mazziotti, 361 Or 370, 393 P3d 235 (2017), and State v. Baughman, 361 Or 386, 393 P3d 1132 (2017), which addressed various issues related to OEC 403 balancing, including the analysis of harmless error in that context and whether the correct remedy for such an error is a new trial or a more limited remand. The Supreme Court then vacated our decision in Holt I and remanded for reconsideration in light of Zavala, Mazziotti, and Baughman. Holt II, 361 Or 800. Upon reconsideration, we again conclude that the trial court committed reversible error in failing to conduct OEC 403 balancing, but we now conclude that the proper remedy for that error is the type of limited remand described in Baughman.
To frame the issues before us on remand, we recite an abbreviated version of the procedural history from our original opinion:
“Defendant was charged with [two counts of third-degree sexual abuse] for kissing [EC], a friend of his daughter, during a sleepover. Defendant moved in limine to exclude evidence that defendant had previously kissed [EC], snuggled with her, lain with her on the couch, talked to her on the phone, and asked her for photographs. Defendant‘s motion included an assertion that he was relying on OEC 403[.] ***
“*****
“At a pretrial hearing, the state argued that the evidence was admissible to show defendant‘s ‘sexual propensity toward [the] victim’ under the reasoning set out in State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990). Defendant argued that the evidence was not relevant and the court
rejected that argument. Defendant did not reiterate his request for OEC 403 balancing, and the court admitted the evidence without conducting balancing. The jury convicted defendant, and this appeal followed. “After this case was argued, the Supreme Court decided [State v. Williams, 357 Or 1, 346 P3d 455 (2015)], in which it held that * ** ‘propensity evidence is relevant in child sexual abuse cases to show that a defendant committed the charged acts.’ State v. Turnidge (S059155), 359 Or 364, 432, 374 P3d 853 (2016) (Turnidge) (discussing Williams). And it decided that, ‘in child sexual abuse prosecutions where the state offered prior bad acts evidence to prove that the defendant had a propensity to sexually abuse children, due process “at least requires that, on request, trial courts determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice.”’ Turnidge, 359 Or at 431 (quoting Williams, 357 Or at 19).”
Holt I, 279 Or App at 665-66 (footnotes omitted).
Relying on Williams, defendant argued that the trial court erred in failing to balance the probative value of evidence of his previous conduct toward EC against the risk of unfair prejudice from that evidence. Holt I, 279 Or App at 666. In response, the state argued that defendant failed to preserve any request for balancing. Id. at 667. Alternatively, the state argued that, under
We agreed with defendant‘s understanding of Williams and rejected the state‘s preservation and “due process balancing” arguments. Holt I, 279 Or App at 671. We then proceeded to consider whether the court‘s error required reversal, using the same approach that we had previously applied in State v. Brumbach, 273 Or App 552, 359 P3d 490 (2015), rev den, 359 Or 525 (2016):
“‘Under Williams, a failure to perform the requisite balancing test is a violation of a defendant‘s due process rights under the United States Constitution.’ Brumbach, 273 Or App at 564 (citing Williams, 357 Or at 18). Thus, we must reverse and remand for a new trial unless we can confidently say, ‘“on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”’ Id. at 564 (quoting Delaware v. Van Arsdall, 475 US 673, 681, 106 S Ct 1431, 89 L Ed 2d 674 (1986)). Here, the trial court could conclude that ‘the evidence is so unfairly prejudicial as to be inadmissible under OEC 403.’ Brumbach, 273 Or App at 565. And, with that evidence excluded, the outcome of the trial could have been different. Accordingly, we cannot say that the error in admitting the evidence at issue—that defendant had been intimate with the victim prior to the charged acts of kissing the victim—without first conducting balancing would not have affected the jury‘s determination of whether defendant kissed the victim as charged. See id. Thus, we reverse and remand for a new trial.”
After we reversed and remanded for a new trial, the state petitioned for review in the Supreme Court. While the petition was pending, the Supreme Court issued a trilogy of cases involving OEC 403 balancing, Baughman, Mazziotti, and Zavala. That trilogy addressed many of the issues posed in this case.
In Baughman, the court held that
Both Mazziotti and Baughman involved preserved claims of error with regard to the trial court‘s failure to conduct OEC 403 balancing. In the third case of the trilogy, Zavala, the question of preservation was in dispute. But rather than work through those preservation issues, which the court described as a “briar patch,” it affirmed the trial court‘s judgment—and reversed our decision—on the ground that any error was harmless. 361 Or at 384. In reaching that outcome, the court explained that the balancing error in Zavala did not involve improperly characterized propensity evidence, as had been the case in Baughman, but had been the failure to consider the probative value of the evidence for a nonpropensity purpose—the defendant‘s sexual predisposition toward the victim—which is generally admissible unless the particular facts demonstrate a risk of prejudice that substantially outweighs its probative value. Zavala, 361 Or at 384. Because the defendant had not advanced “a meritorious argument that could persuade a trial court to exclude the challenged evidence,” the court held that “the trial court‘s failure to conduct balancing under OEC 403 did not significantly affect its decision to admit that evidence” and, consequently, “that there was little likelihood that the trial court‘s error affected its judgment of conviction.” Id. at 385.
After issuing those three decisions, the Supreme Court allowed the state‘s petition for review and remanded the case to us for reconsideration in view of those cases. Holt II, 361 Or 800. The parties have since filed supplemental briefing that focuses on two issues: first, whether the trial court‘s failure to conduct OEC 403 balancing with regard to evidence of his previous conduct toward EC was harmless under the approach described in Zavala; and, second, if the
We begin with the question of harmless error. As set out previously, 292 Or App at 829-30, our original opinion in this case applied the federal “harmless beyond a reasonable doubt” test to determine whether the trial court‘s failure to balance under OEC 403 was prejudicial. Holt I, 279 Or App at 672. The Supreme Court has since held that that is the wrong test; although the application of OEC 403 is constitutionally required, a trial court‘s failure to comply with that balancing requirement is a violation of state evidence rules, so the state harmless error test is applicable. Baughman, 361 Or at 408 n 11. Under that test, the question is whether we can “conclude that there was little likelihood that the trial court‘s error affected its judgment of conviction.” Zavala, 361 Or at 385 (citing State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)).
In the state‘s view, the balancing error in this case had little likelihood of affecting the judgment for the same reasons as in Zavala: The evidence of defendant‘s previous intimate conduct with EC was admitted, like the evidence in Zavala, to prove defendant‘s sexual disposition toward the victim, and “[s]uch nonpropensity evidence is generally admissible, unless, of course, the particular facts demonstrate a risk of prejudice that substantially outweighs its probative value.” 361 Or at 385. And, the state argues, defendant has not advanced a meritorious argument that acknowledges that probative value of the evidence or that provides any basis for concluding that the failure to conduct the balancing actually affected the decision at all. In fact, the state argues, “the trial court would have committed reversible error had it excluded the evidence on balancing grounds.” (Emphasis added.)
Defendant disagrees with each part of the state‘s harmless error analysis. In defendant‘s view, evidence of his
We are not persuaded by either of the parties’ polar positions with respect to the permissible outcomes of balancing in this case. Defendant‘s argument that the trial court would have had no choice but to exclude the evidence follows from his contention that a theory of relevance based on “sexual predisposition” is actually a propensity theory and that the evidence has no other probative value. That argument conflicts with Zavala, which is expressly predicated on the understanding that the McKay theory of relevance to show sexual predisposition is a nonpropensity theory. 361 Or at 385 (“[T]he evidence appeared to be relevant for a nonpropensity purpose—to prove defendant‘s sexual disposition for the victim. Such nonpropensity evidence is generally admissible ***.”); accord State v. Gonzalez-Sanchez, 283 Or App 800, 808 n 3, 391 P3d 811 (2017), rev den, 361 Or 645 (2017) (rejecting the same argument, before Zavala had been decided, on the ground that it was inconsistent with McKay).
We likewise reject the state‘s contention that it would have been error for the trial court to exclude the evidence after conducting OEC 403 balancing. Whether or not
For that reason, this case is distinguishable from Zavala in that defendant has identified a “meritorious argument that could persuade a trial court to exclude the challenged evidence.” 361 Or at 385 (emphasis added). Therefore, because we cannot say that the failure to conduct balancing had no significant effect on the trial court‘s decision to admit that evidence, the only question is whether the admission of the evidence had little likelihood of affecting the jury‘s verdict. See Davis, 336 Or at 32. This case was largely a credibility contest in which defendant denied that the charged conduct had occurred. In light of the potential prejudice that we identified earlier—that is, the risk that the jury would convict based on defendant‘s character rather than on whether he committed the charged acts, we cannot say that the admission of the evidence of defendant‘s prior intimate conduct with the victim had little likelihood of affecting the verdict.2
As previously discussed, 292 Or App at 833, we disagree with defendant‘s premise that exclusion of the evidence is necessarily required by OEC 403 on this record. We therefore agree with the state that the appropriate remedy is the limited remand described in Baughman.
Reversed and remanded.