State v. Anderson

• Decision Date: 02 November 2016
• Docket Number: A155404
• Citation: 282 Or.App. 24,386 P.3d 154
• Parties: State of Oregon, Plaintiff–Respondent, v. Adam Francis Anderson, Defendant–Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 24

386 P.3d 154

State of Oregon, Plaintiff–Respondent,

v.Adam Francis Anderson, Defendant–Appellant.

A155404

Court of Appeals of Oregon.

Submitted August 19, 2015.

November 2, 2016

Peter Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

FLYNN, J.

Defendant appeals from a judgment of conviction for identity theft and second-degree theft. On appeal, he challenges the trial court's decision to admit into evidence a video showing him being booked at the police station, over defendant's objection that the video was unduly prejudicial. Defendant argues that the court erred by failing to make a record demonstrating that it balanced the probative value of the evidence against the danger of unfair prejudice, as required by State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987). We are persuaded that the record does not reflect that the court exercised the discretion that it is afforded under OEC 403 to determine whether the probative value of the evidence is substantially outweighed by other considerations, including the danger of unfair prejudice. We reverse and remand on that basis.¹

I. BACKGROUND

Defendant was convicted based on evidence that he stole an ATM card from a woman in whose home he was staying and that he then used the card to withdraw funds from the woman's bank account. The evidence against defendant at trial included a photograph of a person using the stolen ATM card to withdraw funds from the owner's bank account and a video of defendant being booked into jail while wearing clothing similar to the clothing worn by the person in the ATM photograph. Defendant argued as his theory of defense that another housemate stole and used the ATM card and that the ATM photograph was not sufficiently distinctive to identify the pictured person as defendant. The booking video, taken approximately 20 days after the date of the ATM theft, showed defendant at a police station following an arrest.

Defendant objected that the video should be excluded because its probative value was outweighed by the unfair prejudice that would flow from showing defendant in custody. Defense counsel added that showing this arrest video "becomes more problematic, because I think that" the video depicted defendant being brought into jail on a probation violation, rather than the charged crime. The state argued that the video was not prejudicial because it only showed the standard booking process that follows any arrest.

The court initially indicated that it wanted to view the video to "help [it] decide the balancing issue." However, while the court watched the arrest video with counsel, the prosecutor emphasized that the video bore a date stamp of November 2, 2012, which the court understood to be a date several days earlier than the date of defendant's arrest for the charged crimes. Immediately after that comment, the court advised the parties that it was admitting the video because "it's relevant," but that it planned to give the jury a cautionary instruction.²

II. ANALYSIS

A. The Trial Court's Obligation to Conduct OEC 403 Balancing

In response to defendant's objection that the video should be excluded as more prejudicial than probative, the trial court was required to conduct the balancing prescribed by OEC 403. See Mayfield , 302 Or. at 645, 733 P.2d 438. That provision of the evidence code permits trial courts to exclude evidence that is relevant "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." OEC 403. Although we will review the trial court's ultimate balancing determination for abuse of discretion, we do so only when the record reflects that the court consciously exercised that discretion. See State v. Pinnell , 311 Or. 98, 112–13, 806 P.2d 110 (1991) (court must engage in the " ‘conscious process of balancing the costs of the evidence against its benefits' " as " ‘a prerequisite to the exercise of discretion’ " (quoting Charles Alan Wright & Kenneth W. Graham, Jr., 22 Federal Practice and Procedure: Evidence § 5232, 263 –64 (1978) )); Mayfield , 302 Or. at 647, 733 P.2d 438 ("[T]rial judges are granted broad discretion when findings are made on the record to back up this discretionary call."). In ruling on a challenge to evidence based on OEC 403, "[t]he judge errs if the judge fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion." Mayfield , 302 Or. at 645, 733 P.2d 438 (citing State v. Johns , 301 Or. 535, 725 P.2d 312 (1986) ).

In Mayfield , the court prescribed an " ‘approved method of analysis that should guide trial courts in their decision-making under OEC 403.’ " State v. Mazziotti , 276 Or.App. 773, 778, 369 P.3d 1200 (2016) (quoting State v. Borck , 230 Or.App. 619, 637, 216 P.3d 915, adh'd to as modified on recons. , 232 Or.App. 266, 221 P.3d 749 (2009), rev. den. , 348 Or. 291, 231 P.3d 795 (2010) ). That prescribed method includes four basic steps: (1) "analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence"; (2) "determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime"; (3) balance those two factors; and (4) make a ruling to admit some, all, or none of the proponent's evidence. Mayfield , 302 Or. at 645, 733 P.2d 438. A trial court need not "expressly follow the Mayfield analysis," but, rather, "meets the requirements of Mayfield if ‘the record establishes that, in deciding to admit [the evidence], the trial court considered the matters prescribed in Mayfield .’ " State v. Corbin , 275 Or.App. 609, 616, 365 P.3d 647 (2015) (quoting Borck, 230 Or.App. at 637, 216 P.3d 915 (citation and internal quotation marks omitted)). Appellate courts "examine whether the trial court properly applied the balancing test that OEC 403 prescribes for errors of law[.]" State v. Shaw , 338 Or. 586, 614–15, 113 P.3d 898 (2005).

B. The Ruling in this Case

Based on our review of the record in this case, we are persuaded that the record does not show that the court engaged in "the balancing test that OEC 403 prescribes."³ See Shaw , 338 Or. at 615, 113 P.3d 898. Rather, the court told the parties that it would admit the video because "it's relevant." Determining whether challenged evidence is "relevant" is a threshold inquiry, but it does not resolve any of the considerations that make up the balancing test that OEC 403 prescribes. The significance of a determination that evidence is "relevant" is addressed by OEC 402, which specifies that "[e]vidence which is not relevant is not admissible" but that "relevant" evidence is generally admissible. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401. However, "[e]vidence law demands not only logical relevance but also that the probative value of the evidence not be substantially outweighed by the danger of unfair prejudice as set forth in OEC 403." Mayfield , 302 Or. at 644, 733 P.2d 438. Thus, describing evidence as "relevant" does not suggest OEC 403 balancing, because the purpose of OEC 403 is to determine when relevant evidence should be excluded.

Defendant's objection was to the unfair prejudice from a video that showed defendant in custody. Regardless of whether the trial court initially planned to "decide the balancing issue," the court did not address any of the considerations that defendant's objection required the court to consider. Defendant argued that, "[j]ust as in trial" it is prejudicial for the jury to know that the defendant is in custody, and it would be unduly prejudicial for the jury to see defendant "with the walk of shame, handcuffs on, being taken to the jail." See, e.g., State v. Washington , 355 Or. 612, 627, 330 P.3d 596 (2014), cert. den. , ––– U.S. ––––, 135 S.Ct. 685, ––– L.Ed.2d –––– (2014) (explaining that Oregon has long recognized that criminal defendants have a right " ‘to appear free of physical restraints during a jury trial,’ " in part to protect the defendant's right to an impartial jury, because "the use of physical restraints can impinge on the presumption of innocence to which a defendant is entitled" (quoting State v. Bowen , 340 Or. 487, 489, 135 P.3d 272 (2006), cert. den. , 549 U.S. 1214, 127 S.Ct. 1258, 167 L.Ed.2d 89 (2007) )). The prosecutor responded that the video showed defendant wearing "very similar clothing" to the person in the ATM photo and would be highly probative. With respect to prejudice, the prosecutor acknowledged that letting the jury know that a defendant is in custody at the time of trial can be prejudicial but argued that the video would not be as prejudicial because "everybody has to get booked on charges."

Yet the court's ruling reflects no assessment of the "quantum of probative value" to showing defendant's clothing at the time of the arrest. Nor does it reflect a determination of the extent to which the jury would observe that the video depicted defendant in custody or the extent to which that observation might improperly bias the jury. And it reflects no balancing of those competing factors. In other words, there is no record that the court "analyze[d] the quantum of probative value of the evidence" or determined the extent to which the video might "distract the jury from the central question whether the defendant committed the charged crime" and no...