State v. Sim

Evidence admitted over a defendant’s OEC 403 objection is not unfairly prejudicial simply because it is harmful to the defense. State v. Shaw, 338 Or 586, 614, 113 P3d 898 (2005). Rather, unfair prejudice in the context of OEC 403 means “’an undue tendency to suggest decisions on an improper basis, commonly although not always an emotional one.’” State v. White, 71 Or App 299, 303, 692 P2d 167 (1984), rev den, 298 Or 705 (1985). “The critical inquiry in deter¬mining whether evidence is unfairly prejudicial is whether the evidence improperly appeals to the preferences of the trier of fact for reasons that are unrelated to the power of the evidence to establish a material fact.” State v. Sewell, 257 Or App 462, 468-69, 307 P3d 464, rev den, 354 Or 389 (2013).

Defendant appealed a judgment of conviction entered after a jury found him guilty of two counts of unlawful use of a weapon, two counts of menacing, and one count of interfering with a peace officer. Defendant assigned error to the trial court’s ruling under OEC 403, which admitted evidence that the police stopped Defendant because he had been seen masturbating in front of a children’s ballet studio. On appeal, Defendant argued that the highly prejudicial nature of the evidence outweighed any minimal probative value and that the trial court, therefore, abused its discretion in admitting the evidence. In response, the State argued that the evidence was highly probative regarding the context of the police response and that the trial court did not abuse its discretion when it concluded that the probative value was not substantially outweighed by any prejudicial effect. Evidence admitted over a defendant’s OEC 403 objection is not unfairly prejudicial simply because it is harmful to the defense. State v. Shaw, 338 Or 586, 614, 113 P3d 898 (2005). Rather, unfair prejudice in the context of OEC 403 means “’an undue tendency to suggest decisions on an improper basis, commonly although not always an emotional one.’” State v. White, 71 Or App 299, 303, 692 P2d 167 (1984), rev den, 298 Or 705 (1985). “The critical inquiry in deter¬mining whether evidence is unfairly prejudicial is whether the evidence improperly appeals to the preferences of the trier of fact for reasons that are unrelated to the power of the evidence to establish a material fact.” State v. Sewell, 257 Or App 462, 468-69, 307 P3d 464, rev den, 354 Or 389 (2013). The Court of Appeals held that it was certainly not “clearly against the evidence and reason’ for the trial court to conclude that the evidence would not improperly appeal to the references of the jury for reasons unrelated to the power of the evidence to establish the matter it was admitted to prove. Affirmed.