State v. Holt

OEC 404(4) requires trial courts to conduct balancing under OEC 403 rather than a “narrower, ‘due process’ standard for evaluating the admissibility of evidence.” State v. Baughman, 361 Or 386, 393 P3d 1132 (2017).

This case comes before the Court of Appeals on remand from the Supreme Court after several decisions regarding the implementation of OEC 403. Defendant appealed his conviction for two counts of sexual abuse in the third degree. Defendant assigned error to the admittance of prejudicial evidence by the trial court. On remand, Defendant argued that the evidence in question is propensity evidence and the probative value must outweigh the potential prejudice of the propensity evidence, and therefore should not be admitted. In response, the State argued that under OEC 404(4), due process balancing is required and is a narrower requirement that OEC 403, and this narrower requirement would not have required exclusion of evidence. OEC 404(4) requires trial courts to conduct balancing under OEC 403 rather than a “narrower, ‘due process’ standard for evaluating the admissibility of evidence.” State v. Baughman, 361 Or 386, 393 P3d 1132 (2017). The Court of Appeals held that the trial court erred by incorrectly applying the required ORC 403 balancing test and this error was prejudicial. The appropriate remedy for a 403 balancing error being a limited remand to determine if a new trial is needed. Reversed and Remanded.