State v. Altabef

• Decision Date: 14 July 2021
• Docket Number: A169768
• Citation: 313 Or.App. 240,493 P.3d 1099
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Aaron Scott ALTABEF, Defendant-Appellant.

313 Or.App. 240

493 P.3d 1099

STATE of Oregon, Plaintiff-Respondent,

v.Aaron Scott ALTABEF, Defendant-Appellant.

A169768

Court of Appeals of Oregon.

Argued and submitted September 3, 2020.

July 14, 2021

Mark J. Geiger, Salem, argued the cause and filed the briefs for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

Defendant appeals from a judgment of conviction for first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427, following our decision in an earlier appeal in which we reversed defendant's convictions and remanded for the 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) ).

Defendant argues that the trial court erred on remand when it admitted the prior acts evidence. He contends that the court overstated the evidence's probative value in light of the prosecutor's oral arguments at trial and understated its prejudicial value. In addition, defendant repeats three assignments of error that we rejected on the merits without discussion in his first appeal. State v. Altabef , 279 Or. App. 268, 269, 379 P.3d 755 (2016) ( Altabef I ), vac'd and rem'd on other grounds , State v. Altabef , 361 Or. 885, 403 P.3d 768 (2017) ( Altabef II ). We affirm, because the law of the case precludes review of defendant's second through fourth assignments and because the trial court did not err as a matter of law nor abuse its discretion when balancing the probative value and prejudicial nature of the evidence under OEC 403.

Defendant was charged with four sexual crimes for conduct involving his niece, J. We summarized the relevant facts in Altabef I :

"J alleged that defendant sexually abused her three times between November 2012 and January 2013. The charges concern the latter two incidents. J said that the first incident happened at her grandparents’ house in Snohomish County, Washington, while she and her family visited over Thanksgiving. The second incident happened during the car ride back home from her grandparents’ house, while defendant shared the backseat with J and her younger sister. The third incident happened at her parents’ house in Oregon while defendant baby sat for J and her sister. J's parents—defendant's sister and brother-in-law—reported what J told them to the police."

279 Or. App. at 269, 379 P.3d 755.

Before trial, defendant moved to exclude evidence of the first incident at the grandparents’ house and evidence of any conduct during the car ride back from Washington that occurred outside of Oregon. Altabef III , 293 Or. App. at 538, 429 P.3d 407. That evidence included testimony that defendant had told J not to tell anyone about the abuse. Defendant argued that the evidence was irrelevant or relevant only to show propensity, and defendant requested that the trial court perform OEC 403 balancing before admitting the evidence. Id. The trial court held that the evidence was admissible and admitted it without conducting OEC 403 balancing. Id.

In his first appeal, defendant renewed his arguments under OEC 403 and asserted seven other assignments of error.² Altabef I , 279 Or. App. at 269, 379 P.3d 755. We agreed with defendant that the trial court erred when it failed to balance the probative value and prejudicial effect of the prior acts evidence and reversed and remanded for a new trial on that basis. Id. at 273, 379 P.3d 755. We "reject[ed] the remaining assignments without discussion." Id. at 269, 379 P.3d 755.

The state sought review from the Supreme Court, challenging our determination on OEC 403 and disputing the scope of remand required when a trial court fails to perform the OEC 403 balancing test. Defendant did not cross-petition for review of the seven other assignments of error we had rejected in Altabef I .

Thereafter, the Supreme Court decided a trilogy of cases that addressed the appropriate remedy for cases in which a trial court fails to perform balancing under OEC 403. The court concluded that, rather than a remand necessitating a full new trial, a more limited remand is appropriate, whereby the trial court will "determine, on a case-by-case basis, whether, after conducting a correct analysis under OEC 404 and OEC 403, other acts evidence should again be received and whether a new trial is required or appropriate." Baughman , 361 Or. at 410, 393 P.3d 1132 ; See also State v. Zavala , 361 Or. 377, 393 P.3d 230 (2017) ; State v. Mazziotti , 361 Or. 370, 393 P.3d 235 (2017).

The Supreme Court reversed and remanded our decision in Altabef I to us, directing that

"The decision of the Court of Appeals is vacated, and this case is remanded to the Court of Appeals for reconsideration in light of State v. Zavala * * *; State [v.] Mazziotti * * *; and State v. [Baughman] * * *."

Altabef II , 361 Or. 885, 403 P.3d 768. On remand, we again concluded that the trial court committed reversible error in failing to conduct balancing under OEC 403 and that the error was not harmless. Altabef III , 293 Or. App. at 537, 541, 429 P.3d 407. Consistent with Baughman , we reversed and remanded "for the trial court to exercise its discretion to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." Id. at 541, 429 P.3d 407. In addition, we observed that we had previously "rejected the remainder of defendant's assignments of error without written discussion" in Altabef I . Id. at 537, 429 P.3d 407.

In the ensuing hearing and prehearing memo, defendant argued that the prior acts evidence should not be admitted because the prejudice of the jury potentially using that evidence to conclude that defendant had a predisposition toward sexual abuse outweighed any probative value. Defendant acknowledged the limited scope of the remand, but "incorporated by reference" three of his unsuccessful assignments of error from his first appeal as asserted in his original appellate brief. Defendant argued that, in the event of a further appeal, this court would "have a chance to re-address those issues because [we] didn't address them in the original opinion."

In its prehearing memo, the state argued that the prior acts evidence was admissible under either OEC 404(3) or OEC 404(4) through multiple theories of relevance, including to help explain J's delayed reporting to her parents and the police, to demonstrate defendant's sexual predisposition to J, to rebut claims from J's grandparents that J's account was not credible, and to show defendant's propensity to commit sex abuse against J. The state argued that the probative value of the evidence outweighed any potential prejudice to the defendant.

The trial court admitted the evidence. The trial court determined that the evidence was relevant to explain J's delayed disclosure following multiple instances of abuse and that "the other reasons [of relevancy] as set forth in the [s]tate's memorandum are equally important." When balancing under OEC 403, the trial court concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.

On appeal here, defendant first asserts that, under OEC 403, the trial court erred when it admitted the two instances of prior acts evidence—his sexual abuse of J at her grandparents’ home in Washington and on the car ride back to Oregon. We do not understand defendant to dispute that the evidence could generally be relevant to support the theories explained by the trial court, such as why J did not immediately tell others about the abuse. Rather, defendant contends that the evidence was irrelevant for those purposes only in light of the lack of emphasis placed on those theories in the prosecutor's oral arguments at trial. Because the trial court did not assess the theories of relevance by "examining the prosecutor's case theory, opening[,] and closing statements" at trial, defendant argues that the trial court improperly assessed the evidence's probative value. Defendant then argues that any probative value was outweighed by the prejudice of portraying "defendant as a predator who was ‘after’ [J]."

The state responds that the evidence was admissible under multiple theories of relevance, including to explain J's delayed disclosure, which sufficiently supported the state's need for, and the probative value of, the evidence. The state also argues that the trial court acted within its discretion when it determined that the probative value outweighed the prejudicial nature of the evidence.

We review a trial court's determination that prior acts evidence is relevant for nonpropensity or propensity purposes under OEC 404(3) or OEC 404(4) for legal error. State v. Rockett , 302 Or. App. 655, 667, 463 P.3d 1 (2020). We review a trial court's balancing under OEC 403 for an abuse of discretion and "generally [defer] to the trial court's decision whether the probative value of the evidence is substantially outweighed by the potential for prejudice." State v. Borck , 230 Or. App. 619, 636, 216 P.3d 915 (2009) (internal quotation marks omitted).

When assessing the relevance of prior acts evidence on remand, and, relatedly, the probative value of those relevancy theories, the trial court is not limited to the theories advanced by the parties at the preceding trial. See Baughman , 361 Or. at 410-11, 393 P.3d 1132 (noting that the parties will be "entitled to make new arguments about the purposes * * * for which proffered other acts evidence is relevant" on remand); State v. Davis , 288 Or. App. 451, 452-53, 406 P.3d 218 (2017) (declining to limit the parties on remand to the same OEC 403 arguments...