and Submitted November 14, 2016
review from the Court of Appeals (CC 122847, 130820; CA
A154491 (Control), A154492 . [*]
Herb, Deputy Public Defender, argued the cause and fled the
briefs for petitioner on review Edward Zavala and respondent
on review Edward Zavala. Also on the briefs was Ernest G.
Lannet, Chief Defender, Offce of Public Defense Services.
M. Petrina, Assistant Attorney General, argued the cause and
fled the brief for respondent on review State of Oregon and
petitioner on review State of Oregon. Also on the brief were
Ellen F. Rosenblum, Attorney General, and Benjamin Gutman,
Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer,
and Nakamoto, Justices, and Baldwin, Senior Justice, Justice
pro tempore. [**]
Summary: Today, the Oregon Supreme Court held that, in this
prosecution for child sexual abuse, even assuming that
defendant preserved his argument that the trial court erred
in failing to conduct balancing under OEC 403, the trial
court's error, if any, did not significantly affect the
court's decision to admit the evidence. The Court
explained that, in this case, the trial court admitted the
challenged other acts evidence for the non propensity purpose
of proving defendant's sexual predisposition for the
victim. The trial court gave defendant an opportunity to
argue that his case was different, but defendant did not do
so or argue that the particular facts of his case
demonstrated a risk of unfair prejudice that substantially
outweighed the probative value of the evidence. Accordingly,
the Court concluded, the trial court's failure to conduct
balancing under OEC 404 did not significantly affect its
decision to admit that evidence.
Court reversed the decision of the Court of Appeals and
affirmed the judgment of the circuit court.
case, a prosecution for child sex abuse, the trial court
admitted other acts evidence over defendant's objection
and without conducting OEC 403 balancing. The Court of
Appeals concluded that that failure to balance was error
apparent on the record under ORAP 5.45(1), in light of this
court's decision in State v. Williams, 357 Or 1,
346 P.3d 455 (2015), and exercised its discretion to correct
the error. State v. Zavala, 276 Or.App. 612, 614,
368 P.3d 831 (2016). The Court of Appeals vacated
defendant's convictions and remanded to the trial court
to permit that court to conduct OEC 403 balancing and
determine whether defendant was prejudiced by the admission
of the challenged evidence. Id. at 622. For the
reasons that follow, we reverse the decision of the Court of
Appeals and affirm the trial court's judgment of
was charged with three counts of first-degree sexual abuse of
K and T, the daughters of defendant's ex-girlfriend.
Defendant admitted to tickling the victims, but he denied
that he had intentionally touched a sexual or intimate part
of the victims with a sexual purpose. To sustain a conviction
under ORS 163.305(6), the state was required to prove that
the contact was "for the purpose of arousing or
gratifying the sexual desire of" defendant. During
defendant's bench trial, the state sought to introduce
evidence of an uncharged incident of inappropriate sexual
conduct by the defendant against one of the victims, in the
form of the testimony of a former coworker of the
victims' mother. Defendant objected to the testimony,
arguing that it was "an inadmissible prior bad
act." The court stated that the evidence appeared to be
admissible for the nonpropen-sity purpose of proving
defendant's sexual predisposition for the victim, under
State v. McKay, 309 Or 305, 308, 787 P.2d 479
(1990), but the court invited the parties to conduct
additional research and raise the issue later. Defendant did
not raise the issue again, and the trial court found
defendant guilty on all three counts.
appealed to the Court of Appeals, assigning error to the
trial court's admission of the uncharged misconduct
evidence. The Court of Appeals affirmed without opinion.
State v. Zavala, 270 Or.App. 351, 350 P.3d 234
(2015). Thereafter, this court decided Williams, and
defendant petitioned for reconsideration in light of that
case, arguing that the trial court had erred in failing to
subject the other acts evidence to OEC 403 balancing.
Court of Appeals granted defendant's petition and
considered defendant's argument to be unpreserved.
Zavala, 276 Or.App. at 616-17. Nevertheless, the
court evaluated whether there was error "apparent on the
face of the record, " under ORAP 5.45(1). Id.
at 617. To make that decision, the court looked to whether
the trial court's failure to conduct balancing under OEC
403 was error when measured against the law at the time of
the petition for reconsideration, not the law as it existed
at the time of the trial court's decision. Id.
(citing State v. Jury, 185 Or.App. 132, 139, 57 P.3d
970 (2002), rev den, 335 Or 504, 72 P.3d 636
(2003)). Under that rubric, the court concluded that, because
Williams requires OEC 403 balancing and because it
was apparent from the record that the trial court had not
engaged in that balancing, the error was
"plain." Id. at 617-18.
next step in the Court of Appeals' analysis was to decide
whether to exercise its discretion to correct that error.
Id. at 618. First, the court said, "the error
was grave and the ends of justice incline toward correcting
it." Id. Second, the court determined,
"exercising our discretion in this case to correct the
error would not undermine the policies behind the general
rule requiring preservation." Id. The court
understood Williams to require that a defendant
request balancing, but considered as countervailing factors
both that, Pre-Williams, "the essential role of
OEC 403 balancing was not manifest" and that failure to
conduct that balancing could be corrected by a limited remand
for that purpose. Id. The court explained that
"defendant may not have been at all prejudiced by the
trial court's failure to conduct OEC 403 balancing";
if the court had balanced, it may have admitted the evidence.
Id. at 621. As a result, the court deemed it unclear
"that an outright reversal is permitted or
appropriate." Id. In that circumstance, the
"a conditional remand is appropriate because, in
essence, we have an inadequate record on which to conduct
plain error review; a conditional remand offers a means to
balance the defendant's interest in having his trial
conducted in a manner that complies with due process, with
the constitutional and prudential constraints on reversing
judgments when the ...