State v. Altabef

In a prosecution for child sexual abuse, if a trial court determines that other acts evidence is relevant for a non-propensity purpose under OEC 404(3), the court is required, on a proper motion, to conduct due process balancing to weigh the probative value of the evidence against its potential to unduly prejudice the defendant before admitting it.

Defendant appealed his convictions for first-degree sodomy and first-degree sexual abuse. Defendant was the uncle of the child victim. Victim alleged that Defendant sexually abused her on several occasions. Some of the alleged incidents occurred in Washington, and some occurred in Oregon. Defendant was charged with four counts arising from the alleged acts that occurred in Oregon. Defendant, anticipating the State would offer evidence of the uncharged conduct from the alleged Washington incidents to show propensity, motioned to exclude that evidence on the grounds that it was inadmissible for being unfairly prejudicial under the OEC 403 requirement of “due process balancing.” The trial court denied Defendant’s motion and admitted the “other acts” evidence as relevant for non-propensity purposes. On appeal, Defendant argued the trial court erred in admitting the other acts evidence because it did not conduct due process balancing under OEC 403. Under State v. Williams, 357 Or 1 (2015), in a prosecution for child sexual abuse, if a trial court determines that other acts evidence is relevant for a non-propensity purpose under OEC 404(3), OEC 403 requires the court, on a proper motion, to conduct due process balancing to weigh the probative value of the evidence against its potential to unduly prejudice the defendant before admitting it. Because the record showed no indication that the trial court engaged in due process balancing of the other acts evidence despite Defendant’s request for balancing, the Court found the trial court erred in denying Defendant’s motion to exclude. Reversed and remanded as to Counts 2 and 4; otherwise affirmed.