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State v. Zavala

Supreme Court of Oregon

April 27, 2017

STATE OF OREGON, Petitioner on Review,
v.
EDWARD JONES ZAVALA, Respondent on Review. STATE OF OREGON, Respondent on Review,
v.
EDWARD JONES ZAVALA, Petitioner on Review.

          Argued and Submitted November 14, 2016

         On review from the Court of Appeals (CC 122847, 130820; CA A154491 (Control), A154492 . [*]

          Erica 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.

          Doug 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, Solicitor General.

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

         Case 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.

         The Court reversed the decision of the Court of Appeals and affirmed the judgment of the circuit court.

          WALTERS, J.

         In this 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 conviction.

         Defendant 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.

         Defendant 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.

         The 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."[1] Id. at 617-18.

         The 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 court said,

"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 ...

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