Uncharged Misconduct Evidence - OEC 404(3) and 404(4) Require Traditional OEC 403 Balancing - Remand to the Trial Court is the Proper Remedy
In three cases, the court resolves some of the issues left open after State v. Williams, 357 Or 1 (2015). The court concludes that when the state proffers evidence under OEC 404(4) for a propensity purpose, or OEC 404(3) for a nonpropensity purpose, the trial court is required to conduct OEC 403 balancing by the standard set forth in that rule. The court further concludes that the proper remedy on appeal for the trial court's failure to conduct proper balancing is not a new trial, but rather a remand to the trial court to conduct the analysis and to determine whether a new trial is required.
In Baughman, a sex abuse case, the state introduced uncharged misconduct evidence for two victims. The trial court concluded that the evidence was relevant for several nonpropensity purposes and further concluded that the probative value was not outweighed by the prejudicial effect. While the case was pending in the Court of Appeals, the court decided Williams, and the parties argued over whether OEC 404(4) requires traditional OEC 403 balancing or "due process balancing", requiring the exclusion of other acts evidence only when it rendered the trial fundamentally unfair. The court concludes that OEC 404(4) requires traditional 403 balancing, rejecting the state's argument that only due process balancing is required. The court then explains that, in determining whether uncharged misconduct is admissible, trial courts should follow a two-step analysis. First, the trial court should determine whether the evidence is relevant for a nonpropensity purpose. If so, the court should conduct 403 balancing. If the trial court determines that evidence is relevant for a nonpropensity purpose, it need not determine whether the evidence is also admissible propensity evidence under OEC 404(4) and 403. Evidence that is relevant for nonpropensity purposes will generally be admissible under 403, whereas evidence that is propensity only will generally not be admissible. In this case, the court concludes that the trial court improperly determined that the evidence was relevant for some nonpropensity reasons and remands to the trial court to reweigh the probative value against the prejudicial effect in light of that conclusion. It is then up to the trial court to determine whether the admission of the evidence was erroneous, and if so, if the admission of the evidence so infected the earlier proceedings that a new trial is required.
In Zavala, the court applies the analysis announced in Baughman and concludes that any error in failing to conduct 403 balancing was harmless. That is because the evidence was relevant for a nonpropensity purpose, the failure to conduct balancing did not significantly affect the trial court's decision to admit the evidence.
In Mazziotti, the court remands to the trial court to conduct 403 balancing. In that case, defendant was charged with reckless driving-related crimes and the state sought to introduce evidence of prior convictions for reckless driving and attempt to elude. The court expressly declines to decide defendant's argument that the state cannot introduce mere propensity evidence in a non-child sexual abuse case. Instead, the court notes that it need not reach that question here because the evidence was not solely introduced to prove propensity.
State v. Baughman, 361 Or 386 (2017) (Walters, J.)
State v. Mazziotti, 361 Or 370 (2017) (Walters, J.)
State v. Zavala, 361 Or 377 (2017) (Walters, J.)
Right to Self-Representation - Trial Court Erred as a Matter of Law in Concluding that Defendant Had No Right to Self-Representation Mid-Trial
The court concludes that the trial court erred as a matter of law when it determined defendant had no right to self-representation mid-trial, but that the right to self-representation is not unqualified. Defendant was represented by counsel pretrial and during the first three days of his trial on sex abuse charges. On the fourth day of trial, defendant asked to represent himself but the trial court would not permit him to do that, stating that his right to self-representation "does not start in the middle of the trial." The court explains that the right to self-representation is not unqualified and that when a defendant seeks to self-represent mid-trial, the trial court's decision to allow or deny him that right is reviewed for abuse of discretion. However, here the trial court erred in concluding that when defendant elected to have a court-appointed lawyer, he had relinquished his right to self-represent. Because the trial court did not exercise its discretion and erred as a matter of law, the court reverses defendant's conviction.
State v. Hightower, 361 Or 412 (Landau, J.)