State v. Jacob

A motion in limine does not preserve OEC 403 objections to specific testimony at trial. State v. Pergande, 270 Or App 280, 282-83, 348 P3d 245 (2015).

Defendant appealed a judgment of conviction for first-degree theft. On appeal, Defendant argued that the trial court erred by admitting evidence of the defendant’s prior medication use and workers’ compensation claims because the evidence was not relevant under OEC 401 and unfairly prejudicial under OEC 403. The State contended that the evidence was relevant and Defendant did not preserve any OEC 403 argument. Further, the State argued that Defendant did not demonstrate any abuse of discretion under OEC 403, and not as a matter of plain error. A motion in limine does not preserve OEC 403 objections to specific testimony at trial. State v. Pergande, 270 Or App 280, 282-83, 348 P3d 245 (2015). The Court held that, although Defendant objected to the admission of evidence related to his prior medication use on both relevance and prejudice grounds during the motion in limine hearing, he failed to preserve his objection to the admission of specific testimony at trial because the court indicated during the motion hearing that it would permit testimony relating to the prior medication use and reserved ruling on admissibility under 403. Moreover, the Court found that the trial court did not abuse its discretion in finding the evidence was not substantially outweighed by unfair prejudice because it limited the evidence to its probative value accordingly. Affirmed.