[DV_listserv] 404(4) case

[Domestic Violence issues]

State v. Jones, __ Or App __, __ P3d __ (November 9, 2011) (Lane) (AAG Tiffany

Keast).

    Defendant was charged with numerous crimes relating to an assault on his wife. When

the state proffered evidence that he previously had assaulted the victim and an ex-girlfriend,

defendant argued that the proffered evidence did not meet the five-factor test for admissibility

under State v. Johns, 301 Or 535 (1986), but the trial court overruled his objection. He was

convicted and sentenced to 670 months in prison. On appeal, defendant argued: that Johns was

irrelevant because he denied assaulting the victim and hence his intent was not at issue; that the

evidence was unfairly prejudicial and should have been excluded under OEC 403; and that

balancing under OEC 403 was not precluded by OEC 404(4), and if it was, that violated his

constitutional rights.

Held: Affirmed. [1] Defendant's argument that Johns did not apply because his intent

was not at issue was not reviewable because he did not raise that argument below. [2] Because

defendant did not cite Art I, § 11, to the trial court in support of his "impartial jury" claim, it was

also was not reviewable as not preserved (distinguishing State v. Walker, 350 Or 540, 550

(2011)). [3] Because OEC 404(4) precludes balancing under OEC 403, it "effectively removed

that factor from the Johns analysis." [4] The preclusion of OEC 403 balancing does

not categorically violate due process. Defendant did not raise any argument that balancing was

constitutionally required in his case.

Note: The court appears to suggest that if defendant had argued to the trial court that the

challenged evidence was irrelevant, he may have sufficiently raised and preserved a claim that

due-process principles required balancing.

http://www.publications.ojd.state.or.us/A142958.pdf

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