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State v. Brown

Court of Appeals of Oregon

July 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
FRANK BROWN, JR., aka Frank Brown, aka Frank Dewayne Brown, Jr., Defendant-Appellant.

         Multnomah County Circuit Court 14CR05579 Edward J. Jones, Judge.

         On respondent's petition for reconsideration filed May 10, 2017; and appellant's response filed on May 16, 2017; and respondent's reply fled May 23, 2017. Opinion fled April 5, 2017. 284 Or.App. 671, 393 P.3d 274.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, for petition and reply.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Offce of Public Defense Services, for response.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

         Case Summary:

         The state petitions for reconsideration in State v. Brown, 284 Or.App. 671, 393 P.3d 274 (2017), in which the Court of Appeals held that the trial court erred by admitting other acts evidence without first weighing the risk of unfair prejudice against the probative value of that evidence, pursuant to OEC 403. The Court of Appeals reversed and remanded, explaining that defendant was entitled to a new trial, consistent with the remedy dictated by recent case law. After the issuance of Brown, the Supreme Court issued its decision in State [286 Or.App. 715] v. Baughman, 361 Or. 386, 410-11, 393 P.3d 1132 (2017), holding that when a trial court fails to follow the analysis required for determining the admissibility of evidence under OEC 403, the proper remedy is a limited remand for the trial court to correct its error. On remand, the trial court then determines whether a new trial is necessary in light of its corrected ruling. Id. Relying on Baughman, the state requests a modification of the Court of Appeals' decision to order a limited remand.

         Held:

         Under Baughman, the appropriate remedy for the trial court's failure to balance under OEC 403 is a limited remand, rather than a new trial.

         Petition for reconsideration allowed; former opinion modified and adhered to as modified; former disposition withdrawn; reversed and remanded for further proceedings consistent with this opinion.

         [286 Or.App. 716] LINDER, S. J.

         The state petitions for reconsideration in State v. Brown. 284 Or.App. 671, 393 P.3d 274 (2017). In Brown, we held that the trial court erred by admitting other acts evidence without first weighing the risk of unfair prejudice against the probative value of that evidence, pursuant to OEC 403. Id. at 672. We reversed and remanded, explaining in our opinion that defendant was entitled to a new trial, consistent with the remedy dictated by our recent case law. Id. In doing so, we noted that the Oregon Supreme Court then had under advisement the question whether the appropriate remedy for an error of this kind is a reversal for a new trial or a limited remand to conduct the required balancing. Id. at 672 n 3. We also noted that the state, although conceding that a reversal and remand for a new trial was required by our case law, had preserved its position that the proper remedy was a limited remand. Id.

         After we issued our decision in Brown, the Supreme Court issued its decision in State v. Baughman. 361 Or. 386, 393 P.3d 1132 (2017). In Baughman, the Supreme Court held that, when a trial court fails to follow the analysis required for determining the admissibility of evidence under OEC 403, the proper remedy is a limited remand for the trial court to correct its error. Id. at 411. On remand, the trial court then determines whether a new trial is necessary in light of its corrected ruling. Id. Relying on Baughman, the state asks us to modify our decision to order a limited remand.

         In response, defendant first argues that we should adhere to our original disposition-reversal and remand for a new trial-because the prejudice of the challenged other acts evidence outweighs its probative value as a matter of law. Consequently, according to defendant, a limited remand for the trial court to engage in OEC 403 balancing is unnecessary. We agree with the state, however, that defendant has not preserved that argument. In his appellate brief, his sole argument was that "the trial court must be given the initial opportunity to exercise discretion under OEC 403" to determine whether the other acts evidence was or was not admissible. Defendant is now asking us, however, [286 Or.App. 717] ...


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