[DV_listserv] Legal Update: Other Acts Case

[Domestic Violence issues]

>From DOJ's Appellate Update:

Balance, balance, balance. And then balance some more.

EVIDENCE-OTHER BAD ACTS: When defendant asked court to exclude evidence
based on OEC 403, trial court erred in admitting the evidence as "relevant" without
making a record indicating that it had engaged in the necessary balancing.
State v. Alvarado, 288 Or App 752, __ P3d __ (2017) (per curiam) (Marion)
(AAG Shannon Reel). Defendant's four-year-old daughter drowned in the bathtub, and
she was charged with first-degree manslaughter. At trial, she objected to the admission of
a video depicting her and her boyfriend, Elliot, interacting with her children, including
the decedent. The video depicts Elliot ordering the children to use racial epithets and
otherwise controlling their behavior and movement. Defendant argued that the video was
not relevant under OEC 401, or alternatively, that it should be excluded under OEC 403,
and she asked the court to conduct OEC 403 balancing. The trial court (Judge Dale
Penn) overruled the objection, ruling that the evidence was relevant but without
specifically addressing OEC 403. Defendant was found guilty.
Held: Reversed and remanded. [1] Although the video was relevant, the trial court
erred when it failed to adequately demonstrate on the record that it had engaged in
OEC 403 balancing under State v. Mayfield, 302 Or 631 (1987)-i.e., the trial court's
explanation when it admitted the video failed to show "an assessment of the quantum of
probative value of the evidence, or an assessment of the prejudice, or a balancing of
competing considerations." See State v. Anderson, 282 Or App 24, rev allowed (2016).
[2] The error was not harmless, given that the state's theory at trial "was that defendant
knew of the control and abuse Elliott perpetrated on the children, and effectively
acquiesced to that abuse."
http://www.publications.ojd.state.or.us/docs/A159997.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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