State v. Mazziotti

• Citation: 393 P.3d 235,361 Or. 370
• Decision Date: 27 April 2017
• Docket Number: CA A153713,SC S064085,CC 201218698
• Parties: STATE of Oregon, Petitioner on Review, v. Brett Nicholas MAZZIOTTI, Respondent on Review.
• Court: Supreme Court of Oregon

361 Or. 370

393 P.3d 235

STATE of Oregon, Petitioner on Review,

v.Brett Nicholas MAZZIOTTI, Respondent on Review.

CC 201218698

CA A153713

SC S064085

Supreme Court of Oregon.

Argued and submitted November 14, 2016.

April 27, 2017

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice, Justice pro tempore.^**

WALTERS, J.

In this case, a prosecution for failure to perform the duties of a driver, reckless endangerment, and reckless driving, the trial court admitted other acts evidence over defendant's objection and, the state concedes, without conducting OEC 403 balancing. We agree with the Court of Appeals that that was reversible error. State v. Mazziotti , 276 Or.App. 773, 369 P.3d 1200 (2016). We affirm the decision of the Court of Appeals, reverse the trial court's judgment of conviction, and remand the case to the trial court for further proceedings.

Defendant was charged with crimes arising from a 2012 traffic accident that occurred after defendant, who was driving a motorcycle, had been speeding. When a car turned in front of defendant, he was unable to avoid a collision, and his passenger was thrown from the motorcycle and sustained injuries. After the accident, defendant moved his passenger to the side of the road, moved the motorcycle from the roadway, and then accepted a ride from the scene from a passerby. Ultimately, defendant was charged with failure to perform the duties of a driver, reckless endangerment, and reckless driving.

Before trial, the state moved to admit evidence of two prior police encounters that defendant had had with police officers and the criminal convictions that resulted from those encounters. The first encounter had resulted in convictions for reckless driving and attempting to elude. A police officer testified that, when defendant failed to stop at a stop sign, the officer had initiated a traffic stop and defendant had driven away with the police in pursuit. Defendant had increased his speed to roughly 55 miles per hour, led the police into a residential neighborhood, and made two immediate turns at a high rate of speed. During the second encounter, defendant had driven through a stop sign at a high rate of speed and lost control of his vehicle, nearly hitting a police vehicle. Defendant again was convicted of reckless driving.

Before the trial court, the state argued that that other acts evidence was relevant for nonpropensity purposes, viz ., to prove "motive and knowledge" and to show defendant's "criminal intent and in this case the awareness and disregard, and the recklessness." Defendant argued that the evidence should be excluded because it was not relevant for any nonpropensity purpose and that, even if it were relevant, its probative value was substantially outweighed by the danger of unfair prejudice, under OEC 403. The state countered that balancing was not required "unless [there was] some sort of constitutional issue at stake." Without stating whether it had engaged in any sort of balancing, the trial court admitted the evidence. Defendant was convicted of all charges.

On appeal to the Court of Appeals, defendant assigned error to the trial court's admission of the other acts evidence. Id . at 777, 369 P.3d 1200. Defendant initially challenged the admission of that evidence as improper character evidence under OEC 404(3). Id . After this court's decision in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), defendant filed a supplemental brief arguing that, under Williams , the trial court was required to conduct OEC 403 balancing to determine whether the other acts evidence was admissible. Mazziotti , 276 Or.App. at 777, 369 P.3d 1200. The state responded that, although the trial court had not explicitly stated whether it had conducted OEC 403 balancing, the court implicitly had done so. Id . The state also argued, in the alternative, that, even if the court had not conducted OEC 403 balancing, the balancing required under Williams is purely a "legal, due process question," and that the Court of Appeals there-fore could conduct the balancing itself, without remand. Id . The Court of Appeals rejected the state's arguments and held that, "where a defendant requests that the trial court exclude other acts evidence under OEC 403 because the probative value of the evidence is outweighed by the danger of unfair prejudice, it is error for the court to admit the other acts evidence without first conducting OEC 403 balancing." Id . at 780, 369 P.3d 1200. Because the Court of Appeals could not conclude that the trial court's error was harmless, it reversed defendant's convictions and remanded the case for a new trial. Id . at 780-81, 369 P.3d 1200.

The state sought, and we granted, review. The state argues that we should reverse the decision of the Court of Appeals and affirm the judgment of the trial court because the trial court was not required to conduct "traditional" OEC 403 balancing and admission of the challenged evidence did not violate due process. If this court disagrees, the state con-tends, we should order a remand, but only for rebalancing, and not for a new trial.

Our decision today in State v. Baughman , 361 Or. 386, –––P.3d –––– (2017), answers the state's first argument. In Baughman , we held that, in a criminal case, when a defendant objects to other acts evidence that is relevant only to prove the defendant's character under OEC 404(4), the trial court must conduct balancing under OEC 403, according to the terms of that rule, to determine whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice. Id. at 402, –––P.3d ––––. The same is required when a defendant objects to other acts evidence that is relevant for a nonpropensity purpose under OEC 404(3). Id . at 404, ––– P.3d ––––. The difference is not in the nature of the balancing, but in the likely result. As we explained in Baughman , nonpropensity evidence generally will be admissible under OEC 403, but evidence of defendant's character generally will not. Id. at 405, ––– P.3d ––––. The latter category of evidence poses a more substantial risk of unfair prejudice and raises greater due process concerns. Id. Thus, the first step in conducting an analysis of the admissibility of other acts evidence is to determine whether the evidence is relevant for a nonpropensity purpose. Id. at 404, –––P.3d ––––.

In this case, the state proffered evidence of defendant's previous police encounters and driving-related convictions for a nonpropensity purpose, that is, to establish an element of two of the charged crimes—reckless endangerment and reckless driving. The state argued that the challenged evidence tended to prove that defendant had a subjective awareness of the risks of driving at excessive speeds and in an unsafe manner but chose to disregard those risks, establishing that defendant drove with a reckless state of mind. Defendant countered that he had done everything that he could to avoid the accident and that he had left the scene only to get immediate medical help. Defendant objected to the proffered evidence as not relevant for any nonpropensity purpose under OEC 404(3) and as inadmissible under OEC 403.

The trial court did not expressly determine the...