Argued and submitted on February 28, 2012.
Sherman County Circuit Court 050036CM, Bernard L. Smith, Judge.
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael Salvas, Certified Law Student, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Edmonds, Senior Judge.
ORTEGA, P. J.
Defendant seeks reversal of a judgment convicting him of two counts of third-degree sexual abuse, ORS 163.415; one count of furnishing alcohol to a minor, ORS 471.410(2); and one count of contributing to the sexual delinquency of a minor, ORS 163.431. He argues that the trial court should have excluded, under OEC 403, the victim's testimony that defendant refused to use a condom during four of their sexual encounters. In a previous appeal, we reversed defendant's convictions and remanded to the trial court after accepting the state's concession that the trial court had failed to analyze the admissibility of that evidence under the four-step analysis required by State v. Mayfield, 302 Or 631, 645, 733 P.2d 438 (1987). State v. Sewell, 222 Or.App. 423, adh'd to on recons, 225 Or.App. 296 (2009) (Sewell I). On remand, the trial court analyzed the disputed testimony under Mayfield and concluded that the evidence was properly admitted because its probative value was not substantially outweighed by unfair prejudice. The court again entered a judgment of conviction; defendant appeals, assigning error to the trial court's admission of the disputed testimony. We affirm, concluding that the court did not abuse its discretion in determining that the probative value of the disputed evidence to bolster the victim's credibility was not substantially outweighed by the danger of unfair prejudice.
This case turns on the trial court's admission of disputed evidence under OEC 403. That rule states that,
"[a]lthough relevant, evidence may be excluded 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."
When a trial court is presented with a request to exclude evidence as unfairly prejudicial under OEC 403, the court must:
"[(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 the prosecution's need for the evidence against the countervailing prejudicial danger of unfair prejudice[;] * * * [and (4)] admit all the proponent's evidence or * * * admit only part of the evidence."
Mayfield, 302 Or at 645. The court commits legal error if it "fails to exercise discretion, refused to exercise discretion or fails to make a record which reflects an exercise of discretion." Id.
We take the facts and some of the procedural history of this case from Sewell I:
"According to the state's evidence, the conduct giving rise to defendant's convictions occurred during the weekend of August 20 through August 22, 2004. At that time, defendant was 35 years old, and the victim was 17. The victim's eighteenth birthday was August 29, 2004. On August 20, defendant, the victim, and two other people had dinner together. After dinner, defendant bought alcoholic beverages, and defendant, the victim, and the victim's friend, G, spent the evening in the victim's residence drinking them. The victim testified that she and ...