State v. Zavala

Under OEC 404(3), “[i]f other acts evidence is not proffered to prove a defendant’s character, but instead is offered for a nonpropensity purpose, then analysis under OEC 404(4) is unnecessary; the evidence ‘may be admissible’ under the second sentence of OEC 404(3).” State v. Baughman, 361 Or 386, 403-04 (2017).

Both parties petitioned review of the Court of appeals judgment which vacated Defendants convictions for child sex abuse, ORS 163.305(6), and remanded the case for rebalancing. State assigned error to the Court of Appeals conclusion that the trial court’s failure to balance constitutes “plain error.” On appeal, State argued that argued that when evidence is offered under OEC 404(4), a trial court has no duty to conduct OEC 403 balancing unless a party specifically requests it. Defendant argued that the Court of Appeals should not have remanded the case for rebalancing. Under OEC 404(3), “[i]f other acts evidence is not proffered to prove a defendant’s character, but instead is offered for a nonpropensity purpose, then analysis under OEC 404(4) is unnecessary; the evidence ‘may be admissible’ under the second sentence of OEC 404(3).” State v. Baughman, 361 Or 386, 403-04 (2017). “Other acts’ evidence that is offered for nonpropensity purposes—i.e., to prove motive, intent, identity, or lack of mistake or accident—generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence.” Id. at 405. In this case, the trial court admitted evidence of Defendant’s uncharged sexual acts for the nonpropensity purpose of demonstrating Defendant’s sexual predisposition for the child-victim. The Supreme Court held that the trial court’s error, if any, did not significantly affect its decision to admit the evidence because Defendant failed to make a meritorious argument that could have persuaded the trial court to exclude the evidence. Reversed.