and Submitted November 14, 2016
appeal from the Court of Appeals (CC 201218698; CA
M. Petrina, Assistant Attorney General, Salem, argued the
cause and fled 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 fled the brief for respondent on review. Also on
the brief was Ernest G. Lannet, Chief Defender, Offce of
Public Defense Services.
Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer,
and Nakamoto, Justices, and Baldwin, Senior Justice, Justice
pro tempore. [**]
decision of the Court of Appeals is affirmed. The judgment of
the trial court is reversed, and the case is remanded to the
trial court for further proceedings, consistently with this
Summary: Today, the Oregon Supreme Court, following State
v. Baughman, 361 Or, P.3d (2017), explained that the
legislature intended that trial courts, in determining
whether to admit evidence under OEC 404(4), conduct the
balancing required by OEC 403 according to its terms. Trial
courts may exclude evidence, in the exercise of their
discretion, when they determine that its probative value is
substantially outweighed by the danger of unfair prejudice.
In this prosecution for failure to perform the duties of a
driver, reckless endangerment, and reckless driving, the
trial court improperly admitted other acts evidence without
conducting OEC 403 balancing.
Court affirmed the decision of the Court of Appeals, reversed
the judgment of the circuit court, and remanded the case to
the trial court for a determination of the relevant purposes
of other acts evidence that the state proffers under OEC
404(3) or OEC 404(4), balancing under OEC 403, and a
determination of whether a new trial is necessary or
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, 360 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
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.
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.
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.
appeal to the Court of Appeals, defendant assigned error to
the trial court's admission of the other acts evidence.
Id. at 777. 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. 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
therefore 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 ...