State v. Roberts

A trial court errs as a matter of law when it “fails to conduct OEC 403 balancing when requested to do so or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing.” State v. Garcia-Rocio, 286 Or App 136 (2017).

Defendant appealed judgment of conviction for assault in the first degree. Defendant assigned error to the trial court's denial of his motion in limine that excluded evidence that he used a racial epithet to describe a black person. On appeal, Defendant argued that the denial of the exclusion of the racial epithet was highly prejudicial and devoid of probative value. In response, the State argued that any error that admitted the evidence was harmless and that even if it was not harmless, a limited remand is appropriate. A trial court errs as a matter of law when it "fails to conduct OEC 403 balancing when requested to do so or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing." State v. Garcia-Rocio, 286 Or App 136 (2017). The Court of Appeals held that the court failed to make a OEC 403 balancing when they didn't allow the motion in limine because the state did not make an argument on the merits that the trial court "could… conclude that the danger of unfair prejudice did not 'substantially outweigh' the probative value of the evidence." Reversed and remanded.