State v. Horner

A reviewing court may only review an unpreserved assignment of error as one “apparent on the record” if (1) the error is of law; (2) it is not in reasonable dispute; and (3) if the error is contained in the four corners of the record such that the court need not choose between possible inferences to find it.

Defendant appealed his convictions of numerous crimes, including two counts of identity theft. On appeal, Defendant assigned error, under OEC 403(3) and State v. Leistiko, 352 Or. 172, 282 P.3d 857, modified on recons., 352 Or. 622, 292 P.3d 522 (2012), to the trial court’s decision to admit Horner’s nine previous convictions of identity theft as “other acts” evidence under the doctrine of chances to prove Horner intended “to deceive and defraud” without providing a Leistiko jury instruction that the jury must first find Horner had possessed the identities before deciding whether he intended to deceive or defraud. Defendant argued that “other acts” evidence is inadmissible under OEC 404(3) to show intent, as it lacks probative value and is unfairly prejudicial. The Court found Horner failed to preserve his arguments, and as such it could not review the unpreserved assignment of error as one “apparent on the record” unless (1) the error is of law; (2) it is not in reasonable dispute; and (3) if the error is contained in the four corners of the record such that the court need not choose between possible inferences to find it. The Court found that the error was not obvious, and that there was “reasonable dispute” over the rules governing the admissibility of “other acts” evidence unaccompanied by a Leistiko jury instruction. However, the Court held the trial court erred in modifying defendant’s sentence outside his presence. Remanded for resentencing, otherwise affirmed.