State v. Cave

Whether evidence is admitted as propensity evidence under OEC 404(4) or nonpropensity evidence under OEC 404(3) has a “significant effect” on the OEC 403 balancing test, as 404(4) propensity evidence’s prejudicial effect generally substantially outweighs its probative value. State v. Baughman, 361 Or 386, 405 (2017).

Defendant was convicted of sex crimes committed against two of his granddaughters. On appeal, Defendant assigns error to the trial court’s ruling that a third granddaughter’s testimony of similar acts perpetrated against her was nonpropensity evidence under OEC 404(3), and as a direct result incorrectly weighed the probative and prejudicial values of that evidence under OEC 403. Whether evidence is admitted as propensity evidence under OEC 404(4) or nonpropensity evidence under OEC 404(3) has a “significant effect” on the OEC 403 balancing test, as 404(4) propensity evidence’s prejudicial effect generally substantially outweighs its probative value. State v. Baughman, 361 Or 386, 405 (2017). The court below incorrectly admitted the evidence under a OEC 404(3) nonpropensity theory when the State’s argument reduced to a propensity theory, that he would commit the accused crimes because of similar past behavior. Despite the State’s concession of the trial court’s error, they argue it does not matter what “label” is applied to the evidence, propensity or nonpropensity, it still passes OEC 403’s balancing test. Because the trial court expressly declined to view the evidence under a 404(4) propensity lens, it could not have factored into their OEC 403 prejudicial vs. probative analysis. Reversed and Remanded.