[DV_listserv] Other Acts Cases

[Domestic Violence issues]

Please find attached the updated PBA/Other Acts list.

Here is a summary of the three recent cases from ODOJ's Appellate Division Legal Update:

APPEALS-REMEDY / EVIDENCE-OTHER ACTS EVIDENCE: Other-acts evidence admitted under OEC 404 is subject to ordinary OEC 403 balancing. But the remedy for the trial court's error in failing to balance under OEC 403 is a limited
remand.

State v. Baughman, 361 Or 386, __ P3d __ (2017) (Clatsop) (AAG Doug Petrina). (Child Sex Abuse case)

The issue in this case is which balancing test is the court required to use when making a determination of admissibility of other acts evidence pursuant to OEC 404 (3) or (4). The court determined that the correct standard is that set forth in OEC 403:
"In this case we explain that, in a criminal action, when the state proffers evidence of uncharged acts, either to prove a defendant's propensity to commit charged crimes under OEC 404(4), or for a non-propensity purpose under OEC 404(3), and a defendant objects to the admission of
that evidence, the trial court must conduct balancing under OEC 403, according to its terms, to determine whether the probative value of the challenged evidence is substantially outweighed by the danger of unfair prejudice."

http://www.publications.ojd.state.or.us/docs/S064086.pdf

APPEALS-REMEDY / EVIDENCE-OTHER ACTS EVIDENCE: Other-acts evidence admitted under OEC 404 is subject to ordinary OEC 403 balancing. But the remedy for the trial court's failure to balance under OEC 403 is a limited remand.
State v. Mazziotti, 361 Or 370, __ P3d __ (2017) (Lane) (AAG Doug Petrina). (Reckless Driving and Reckless Endangering case)
http://www.publications.ojd.state.or.us/docs/S064085.pdf

APPEALS-HARMLESS ERROR / EVIDENCE-OTHER ACTS EVIDENCE: Admission of other-acts evidence without OEC 403 balancing was harmless because defendant failed to offer a meritorious argument that could persuade a trial court to exclude the evidence.
State v. Zavala, 361 Or 377, __ P3d __ (2017) (Lincoln) (SG Benjamin Gutman and AAG Doug Petrina). Defendant was charged with sexually abusing the two daughters of his then-girlfriend. The state sought to introduce evidence of another
uncharged incident against one of the victims. The trial court (Judge Thomas Branford) stated on the record that the evidence appeared to be admissible to prove defendant's sexual predisposition for the victim, but it invited the parties to research the issue further and raise it again later. Defendant did not raise it again and was convicted. The Court of Appeals reversed, holding that the trial court committed plain error in admitting the evidence without explicitly conducting OEC 403 balancing.
Held: Conviction affirmed (Walters, J.). It does not matter whether defendant preserved his OEC 403 objection, because even if he did, any error by the trial court in failing to conduct balancing was harmless. The evidence appeared to be relevant for a nonpropensity purpose-to prove defendant's sexual predisposition for the victim-and such evidence is generally admissible under State v. McKay, 309 Or 305 (1990). Defendant did not offer any reason that, on the particular facts of his case, the risk of unfair prejudice substantially outweighed the probative value of the evidence. In the absence of a meritorious argument that could persuade a trial court to exclude the challenged evidence, the trial court's failure to conduct OEC 403 balancing did not significantly affect the court's decision to admit the evidence.
http://www.publications.ojd.state.or.us/docs/S064072.pdf


Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Cell: 503.932.7482


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