State v. Zavala

• Decision Date: 02 March 2016
• Docket Number: 122947, 130820,A154491 (Control), A154492.
• Citation: 368 P.3d 831,276 Or.App. 612
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Edward Jones ZAVALA, Defendant–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 612

368 P.3d 831

STATE of Oregon, Plaintiff–Respondent,

v.Edward Jones ZAVALA, Defendant–Appellant.

122947, 130820

A154491 (Control), A154492.

Court of Appeals of Oregon.

Submitted May 13, 2015.

Decided March 2, 2016.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, for petition.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, for response.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

ORTEGA, P.J.

We previously affirmed without opinion defendant's judgment of conviction for three counts of first-degree sexual abuse concerning K and T, the eight-and ten-year old daughters of his former girlfriend.¹ State v. Zavala, 270 Or.App. 351, 350 P.3d 234 (2015). Defendant now petitions for reconsideration of our decision based on a subsequent change in the relevant case law. In light of State v. Williams, 357 Or. 1, 346 P.3d 455 (2015), defendant contends that it was error for the trial court to admit evidence of uncharged sexual conduct toward one of the alleged victims without determining whether that evidence was unfairly prejudicial as compared to its probative value—that is, without OEC 403 balancing. We conclude that the failure to conduct that balancing was plain error, and we exercise our discretion to correct it. Accordingly, we allow reconsideration, withdraw our former disposition, and vacate and remand defendant's convictions.

The state charged defendant with three acts of sexual abuse: two instances involving K and one involving T. In a bench trial, the trial court admitted testimony from the alleged victims' mother's former coworker, who recounted that she had observed defendant touch K in a sexual manner on a different occasion than the charged instances, conduct that was uncharged. In the court's view, the evidence was admissible under State v. McKay, 309 Or. 305, 308, 787 P.2d 479 (1990), in which the Supreme Court held that uncharged conduct of sexual disposition toward the same victim is admissible as evidence for "other purposes" under OEC 404(3) and not as propensity evidence.² The court found defendant guilty on all counts. Defendant appealed, contending that the trial court erred by admitting testimony of the uncharged conduct because, based on evidentiary rules for evidence admitted under OEC 404(3) that were described in State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012), and State v. Leistiko, 352 Or. 172, 184–85, 282 P.3d 857, adh'd to as modified on recons., 352 Or. 622, 292 P.3d 522 (2012), the evidence was not admissible. As noted, we affirmed without opinion.

Defendant now petitions for reconsideration because the uncharged, "other acts" evidence against him is subject to the "significant change in the law" announced in Williams. In that decision, the Supreme Court held that

"OEC 404(4) supersedes OEC 404(3) in a criminal case except to the extent required by the state or federal constitution. In a prosecution of child sexual abuse, the federal constitution requires that a trial court determine whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403."³

357 Or. at 24, 346 P.3d 455. The consequence of that holding is that the prohibition against propensity evidence in OEC 404(3) yields, in a criminal case, to the admissibility of relevant evidence of a defendant's "other crimes, wrongs or acts, * * * except as otherwise provided by [various evidentiary rules] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403 ]." OEC 404(4). Put differently, "other acts" evidence of child sexual abuse—previously prohibited by OEC 404(3) if sought to be admitted for a propensity purpose—is allowed under OEC 404(4) so long as it is relevant and subject to OEC 403 unfair-prejudice balancing. Thus, on reconsideration, defendant contends that, under Williams, the evidence of uncharged conduct offered by the alleged victims' mother's coworker is allowed under OEC 404(4), but only if subject to OEC 403 balancing, which was not conducted in this case.⁴

The state counters that defendant did not preserve, at trial, his argument that admitting the evidence of uncharged sexual conduct requires OEC 403 balancing. A party preserves an issue for review by "provid[ing] the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000). The state argues that, in Williams, the court clearly indicated that OEC 403 determinations must be sought by the defendant:

"We therefore hold that balancing is required by the Due Process Clause. Even if due process does not categorically prohibit the admission of ‘other acts' evidence to prove propensity in prosecutions for child sexual abuse, it at least requires that, on request, trial courts determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice."

357 Or. at 18–19, 346 P.3d 455 (emphasis added). And, the court stated:

"Consequently, the admission of evidence under OEC 404(4) remains subject to balancing under OEC 403. When a party objects, under OEC 403, to ‘other acts' evidence offered under OEC 404(4), a trial court must engage in the balancing anticipated by OEC 403."

Id. at 19, 346 P.3d 455 (emphasis added). Moreover, the state relies on State v. McMullin, 269 Or.App. 859, 860 n. 2, 346 P.3d 611 (2015), to assert that we have recently and clearly indicated that, in order to preserve an OEC 403 challenge, a defendant must seek a ruling or object to the evidence on those grounds at trial.

Although defendant did not request OEC 403 balancing in the context of his challenge below to admission of the evidence under OEC 404(4), as required by Williams, his request for reconsideration in light of Williams constitutes a request that we review for error apparent on the face of the record. ORAP 5.45(1). We reviewed for plain error in a similar posture in State v. Marroquin, 215 Or.App. 330, 334–35, 168 P.3d 1246 (2007). In that case, the defendant petitioned for reconsideration of our decision affirming without opinion his drug and evidence tampering convictions in light of State v. Birchfield, 342 Or. 624, 157 P.3d 216 (2007), which "significantly changed the Supreme Court's prior case law." Marroquin, 215 Or.App. at 333, 168 P.3d 1246. Likewise, Williams announced a new rule by holding that, in child sexual abuse cases, OEC 404(4) supersedes OEC 404(3) and the admission of "other acts" evidence under OEC 404(4) requires OEC 403 balancing. 357 Or. at 20, 346 P.3d 455.

Our review of unpreserved legal errors that are "apparent on the face of the record" is discretionary. ORAP 5.45(1). To qualify as plain error, the error must (1) be a legal error, (2) be apparent, meaning the legal point is obvious and not reasonably in dispute, and (3) appear on the face of the record such that we "need not go outside the record or choose between competing inferences to find it." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). We examine whether an error is plain in light of the law as it exists at the time of the appeal and not as of the time the trial court rendered the challenged ruling. State v. Jury, 185 Or.App. 132, 139, 57 P.3d 970 (2002), rev. den., 335 Or. 504, 72 P.3d 636 (2003).

In this case, unlike our recent decisions in State v. Brown, 272 Or.App. 424, 355 P.3d 216 (2015) (concluding that it was not plain error to admit challenged evidence without a Leistiko instruction), and State v. Horner, 272 Or.App. 355, 356 P.3d 111 (2015) (same), we can discern that the legal error is obvious: Williams establishes that federal constitutional concerns require the trial court to engage in OEC 403 balancing for the admission of uncharged sexual conduct.⁵ The trial court admitted uncharged evidence that defendant sexually abused K without OEC 403 balancing to determine if the probative value of the evidence was outweighed by the danger of unfair prejudice. The error is plain.

Yet, we must also decide whether to exercise our discretion to consider the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). We consider several factors when we make that decision, including "the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way." Id. at 382 n. 6, 823 P.2d 956. And, "[a] court's decision to recognize unpreserved or unraised error in this manner should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error." Id. at 382, 823 P.2d 956.

For the reasons that follow, we exercise our discretion to correct the error in this case. First, the error was grave and the ends of justice incline toward correcting it. Williams concluded that the Due Process Clause (gleaning from United States Supreme Court case law) requires OEC 403 balancing in child sexual abuse prosecutions. 357 Or. at 18–19, 346 P.3d 455 ("In our view, the only way that a court can ensure that the admission of ‘other acts' evidence is not unfairly prejudicial and a violation of ‘fundamental concepts of justice’ is to conduct OEC 403 balancing."). Additionally, exercising our discretion in this case to correct the error would not undermine the policies behind the general rule requiring preservation. Although Williams makes clear that OEC 403 balancing must be requested by a defendant in child sexual abuse cases, 357 Or. at 18–19, 346 P.3d 455, before that decision,...