State v. Zavala

In sex abuse cases, propensity evidence under OEC 404(4) must be considered in light of prejudicial effect under OEC 403.

The Court previously affirmed Defendant’s conviction of first-degree sexual abuse of his former girlfriend’s daughters. Defendant petitioned for reconsideration in light of new case law, arguing that it was error for the trial court to admit evidence of uncharged sexual conduct without determining whether that evidence was unfairly prejudicial as compared to its probative value. The court held that the failure to conduct the balancing analysis was plain error. Previous case law allowed such evidence to be admitted under the propensity rule; however a recent ruling by the Supreme Court requires a trial court to weigh propensity evidence against prejudicial effect. Defendant’s unpreserved error is procedural in nature and the Court has decided in the past that the appropriate course of action to vacate the convictions and remand the case to the trial court to follow proper procedure. Reconsideration allowed; vacated and remanded.