State v. Cave

Under Baughman, failure to first identify whether the evidence was admissible as propensity or nonpropensity evidence, before concluding the OEC 403 balancing test, requires reversal. State v. Baughman, 361 Or 386, 393 P3d 1132 (2017)

Defendant appealed a judgment of conviction for two counts of first-degree sexual abuse, four counts of first-degree rape, and two counts of first-degree sodomy involving his two minor granddaughters. Defendant assigned error to the trial court's determination to admit the testimony of his adult daughter, who testified Defendant sexually abused her when she was a child. On appeal, Defendant argued the trial court erred when it "failed to analyze the admissibility of that evidence" under the framework of State v. Baughman, 361 Or 386, 393 P3d 1132 (2017), which subsequently impacted the OEC 403 balancing between the probative value of the evidence versus unfair prejudicial effect to Defendant. In response, the State argued that the evidence was admissible to show Defendant’s sexual purpose, which the State characterized as a nonpropensity theory. Under Baughman, failure to first identify whether the evidence was admissible as propensity or nonpropensity evidence, before concluding the OEC 403 balancing test, requires reversal. Id. The Court agreed with Defendant and found the trial court erred when it failed to first assess the probative value of the evidence as nonpropensity evidence, under OEC 404(3) and OEC 403, and then turn to its admissibility as propensity evidence, under OEC 404(3) and OEC 403, but only if it was inadmissible under OEC 404(3).

Reversed and remanded.