[DV_listserv] Balance is important....

[Domestic Violence issues]

...in life AND introducing Other Acts Evidence! :)

(From DOJ's Appellate Division's "Legal Update"):

EVIDENCE-OTHER BAD ACTS: [1] In prosecution for domestic assault, evidence
of a prior incident in which the defendant assaulted the victim in a jealous rage was
admissible as relevant to prove motive. [2] But trial court erred when it failed to
conduct balancing under OEC 403 as requested by defendant.
State v. Edwards, 282 Or App 328, __ P3d __ (2016) (Coos) (AAG Patrick
Ebbett). In two incidents, defendant assaulted and threatened his girlfriend in a jealous
rage, and he was charged with fourth-degree assault, unlawful use of a weapon,
harassment, coercion, and menacing. Before trial, the state filed a motion in limine to
admit evidence of an incident that occurred before the charged incidents. In that incident,
defendant became angry with the victim over a "jealousy issue" and hit her with a chair.
The first charged incident occurred when she returned a week later and defendant again
assaulted her. The state argued that the chair episode was admissible under OEC 404(3)
to prove defendant's jealous motive to harm the victim in the charged incidents.
Defendant objected, arguing that the evidence was inadmissible propensity evidence and,
alternatively, that it should be excluded as more prejudicial than probative under
OEC 403. The trial court (Senior Judge Marshall Amiton) admitted the evidence as
relevant to prove motive, but the court did not engage in OEC 403 balancing. On appeal,
defendant renewed his argument that the evidence was relevant only for a propensity
purpose, and argued that the trial court erred by failing to conduct OEC 403 balancing.
Held: Reversed and remanded (Tookey, J.). [1] The evidence was relevant and
admissible under OEC 404(3) for the nonpropensity purpose of proving defendant's
motive because it "supported an inference that the same 'jealousy issue' that led to
defendant's assault of the [victim]" in the prior uncharged incident led to the assaults on
the charged occasions. [2] When nonpropensity evidence is offered under OEC 404(3),
OEC 403 balancing is required upon request. [3] The trial court erred in failing to
conduct OEC 403 balancing even though defendant had requested that it do so. [4] The
error was not harmless "because we cannot conclude that the trial court's error had little
likelihood of affecting the verdict."
http://www.publications.ojd.state.or.us/docs/A156021.pdf


I've attached the updated "Other Acts" summary that I try to keep current. Let me know if I'm missing a case!

--Erin

*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20161209/4828cc8d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Updated_Other_Acts_List.pdf
Type: application/pdf
Size: 529334 bytes
Desc: Updated_Other_Acts_List.pdf
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20161209/4828cc8d/attachment.pdf>