State v. Altabef
Decision Date | 29 August 2018 |
Docket Number | A156547 |
Citation | 429 P.3d 407,293 Or.App. 535 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Aaron Scott ALTABEF, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Jesse Wm. Barton filed the opening, reply, and first supplemental briefs for appellant. On the second supplemental brief was Mark J. Geiger.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the answering brief for respondent. On the supplemental briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
This case comes to us on remand from the Supreme Court. State v. Altabef , 361 Or. 885, 403 P.3d 768 (2017). In our initial decision, we held that the trial court committed reversible error as to the counts on which defendant was convicted by admitting evidence of defendant's previous conduct toward the victim without first balancing the probative value of that evidence against its risk of unfair prejudice under OEC 403, and we remanded for a new trial on those counts. State v. Altabef , 279 Or. App. 268, 379 P.3d 755 (2016). We rejected the remainder of defendant's assignments of error without written discussion. Id. at 269, 379 P.3d 755. After our decision, the Supreme Court decided State v. Baughman , 361 Or. 386, 393 P.3d 1132 (2017), State v. Mazziotti , 361 Or. 370, 393 P.3d 235 (2017), and State v. Zavala , 361 Or. 377, 393 P.3d 230 (2017), which addressed "various issues related to OEC 403 balancing, including the analysis of harmless error in that context and whether the correct remedy for such an error is a new trial or a more limited remand." State v. Holt , 292 Or. App. 826, 828, 426 P.3d 198 (2018). The Supreme Court vacated our decision and remanded for reconsideration in light of Zavala , Mazziotti , and Baughman . Altabef , 361 Or. at 885, 403 P.3d 768.
On remand, we again conclude that the trial court committed reversible error in failing to conduct OEC 403 balancing. Defendant concedes, and we agree, that the appropriate remedy is the type of limited remand described in Baughman . The state, however, contends that a remand for balancing is unnecessary because the trial court's failure to have done so is harmless error. We reject that contention for the reasons that follow.
Defendant was charged with four sexual crimes for conduct against his niece, J. We summarized the relevant facts in our first opinion:
279 Or. App. at 269, 379 P.3d 755.
Before trial, defendant moved to exclude evidence of the first incident and evidence of any conduct during the car ride back from Washington that occurred outside of Oregon. Defendant argued that the evidence was irrelevant or relevant only to show propensity, and defendant requested that the court conduct OEC 403 balancing before admitting the evidence. The state argued that such evidence was relevant for nonpropensity reasons under OEC 404(3)" ‘to explain the victim's disclosure, to place the various incidents in context (including the incident that occurred at the victim's residence), to explain the defendant's opportunity to commit the crime and accessibility [sic ] to the victim, and to explain the defendant's predisposition toward the victim.’ " Id. at 270, 379 P.3d 755. The trial court held that the evidence was relevant because "it is important to explain how this all came about" and admitted it without conducting OEC 403 balancing. Id. at 270 & n 3, 379 P.3d 755.
We held that the trial court erred in failing to balance the probative value of the evidence against its prejudicial effect before admitting the evidence. Id. at 273, 379 P.3d 755. Because we could not conclude that the error was harmless, we reversed and remanded for a new trial.1 Id.
As noted above, the Supreme Court vacated and remanded this case to us for reconsideration in light of its decisions in Baughman , Mazziotti , and Zavala . In Holt , a case similar to this one that was remanded for the same reason, we recently summarized the holdings of those cases:
292 Or. App. at 830-31, 426 P.3d 198 (emphasis in original).
In supplemental briefing on remand, the state contends that, in this case, as in Zavala , the trial court's erroneous failure to conduct OEC 403 balancing was harmless because, in the state's view, the trial court did, or could have, admitted the evidence under one or more of the nonpropensity theories urged at trial.
In Zavala , the trial court admitted the disputed evidence for a single nonpropensity reason: to show the defendant's sexual predisposition for the victim under State v. McKay , 309 Or. 305, 787 P.2d 479 (1990). 361 Or. at 379, 393 P.3d 230. The defendant did not request OEC 403 balancing in the trial court and, consequently, never addressed the risk of unfair prejudice from the evidence. Id. at 379, 385, 393 P.3d 230. Again before this court and the Supreme Court, the only purpose for the evidence that the parties addressed was sexual predisposition under McKay , and again the defendant made no fact-specific argument about how the risk of unfair prejudice from the evidence outweighed its probative value under McKay . Id. at 385, 393 P.3d 230. In the absence of such an argument, the court had no ground on which to conclude that the trial court's failure to conduct OEC 403 balancing significantly affected its decision to admit the disputed evidence. Id.
We understand the court's holding in Zavala to have resulted from two related factors: the simplicity of the trial court's ruling—that the evidence was probative of the defendant's sexual predisposition for the victim under McKay —and the defendant's failure, before the trial court or on appeal, to identify any cogent reason that the trial court might conclude that the risk of unfair prejudice substantially outweighed that probative value. This case is not like Zavala . Here, defendant had several theories of relevance to address and made fact-specific arguments about the relative weight of the...
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State v. Altabef
...trial court to balance the probative value and prejudicial nature of prior acts evidence under OEC 403.1 State v. Altabef , 293 Or. App. 535, 541, 429 P.3d 407 (2018) ( Altabef III ) (remanding for proceedings consistent with State v. Baughman , 361 Or. 386, 410-11, 393 P.3d 1132 (2017) ).D......