State v. Anderson

Under OEC 403, a judge errs in ruling on a challenge to evidence if the judge (1) fails to exercise discretion, (2) refuses to exercise discretion or (3) fails to make a record which reflects an exercise of discretion.

Defendant appealed a judgment of conviction for identity theft and second-degree theft. Defendant assigned error to the trial court’s decision to admit into evidence a video showing him being booked at the police station, over Defendant’s objection that the video was unduly prejudicial. Defendant argued that the trial court erred by failing to make a record demonstrating that it balanced the probative value of the evidence against the danger of unfair prejudice, as required by State v. Mayfield, 302 Or 631, 733 P2d 438 (1987). “In ruling on a challenge to evidence based on OEC 403, ‘the judge errs if the judge fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.’” (quoting Mayfield, 302 Or at 645 (1987). In this case, the trial court admitted the evidence in question because “it’s relevant.” The trial court did not make a record which reflected its exercise of discretion because it did not display it engaged in the balancing test the OEC 403 prescribes. The trial court must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Describing evidence as “relevant” does not suggest OEC 403 balancing, because the purpose of OEC 403 is to determine when relevant evidence should be excluded. Reversed and remanded. DeVore, J. dissented.