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State v. Holt

Court of Appeals of Oregon

July 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID HENRY HOLT, Defendant-Appellant.

          Submitted on remand August 30, 2017.

          Wasco County Circuit Court 1200081M; On remand from the Oregon Supreme Court, State v. Holt, 361 Or. 800, 400 P.3d 920 (2017). Janet L. Stauffer, Judge.

          Peter Gartlan, Chief Defender, and Alice S. Newlin, Deputy Public Defender, Offce of Public Defense Services, fled the opening brief for appellant. On the supplemental briefs were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public D efender.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the answering and frst supplemental briefs for respondent. On the second supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         This case is on remand from the Supreme Court for reconsideration in light of its decisions in State v. Zavala, 361 Or. 377, 393 P.3d 230 (2017), State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017), and State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), which addressed various issues related to OEC 403 balancing. In our original decision, State v. Holt, 279 Or.App. 663, 381 P.3d 897');">381 P.3d 897 [292 Or. 827] (2016), we reversed and remanded for a new trial after holding that the trial court committed reversible error by admitting evidence of defendant's previous conduct toward the victim without frst balancing the probative value and prejudicial effect of that evidence under OEC 403. On remand, the parties focus on two issues: whether the trial court's failure to conduct OEC 403 balancing with regard to evidence of defendant's previous conduct was harmless under the approach described in Zavala; and, if the error was not harmless, whether the appropriate disposition is a limited remand as in Baughman and Mazziotti. Held: Because the trial court permissibly could have exercised its discretion to admit or exclude some or all of the evidence of defendant's previous conduct had it conducted OEC 403 balancing, which in turn could have affected the verdict, the trial court's failure to conduct that balancing was not harmless. The appropriate remedy for that error was the type of limited remand described in Baughman and Mazziotti.

         Reversed and remanded.

          [292 Or. 828] LAGESEN, P. J.

         This case comes to us on remand from the Supreme Court. State v. Holt, 361 Or. 800, 400 P.3d 920 (2017) (Holt II). In our initial decision, we held that the trial court committed reversible error by admitting evidence of defendant's previous conduct toward the victim without first balancing the probative value and prejudicial effect of that evidence under OEC 403, and we remanded for a new trial. State v. Holt, 279 Or.App. 663, 381 P.3d 897');">381 P.3d 897 (2016) (Holt I). Subsequently, the Supreme Court issued decisions in State v. Zavala, 361 Or. 377, 393 P.3d 230 (2017), State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017), and State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), which addressed various issues related to OEC 403 balancing, including the analysis of harmless error in that context and whether the correct remedy for such an error is a new trial or a more limited remand. The Supreme Court then vacated our decision in Holt I and remanded for reconsideration in light of Zavala, Mazziotti, and Baughman. Holt II, 361 Or at 800. Upon reconsideration, we again conclude that the trial court committed reversible error in failing to conduct OEC 403 balancing, but we now conclude that the proper remedy for that error is the type of limited remand described in Baughman.

         To frame the issues before us on remand, we recite an abbreviated version of the procedural history from our original opinion:

"Defendant was charged with [two counts of third-degree sexual abuse] for kissing [EC], a friend of his daughter, during a sleepover. Defendant moved in limine to exclude evidence that defendant had previously kissed [EC], snuggled with her, lain with her on the couch, talked to her on the phone, and asked her for photographs. Defendant's motion included an assertion that he was relying on OEC 403[.] ***
''* * * *
"At a pretrial hearing, the state argued that the evidence was admissible to show defendant's 'sexual propensity toward [the] victim' under the reasoning set out in State v. McKay,309 Or. 305, 308, 787 P.2d 479 (1990). Defendant argued that the evidence was not relevant and the court [292 Or. 829] rejected that argument. Defendant did not reiterate his request for OEC 403 balancing, and the court admitted the ...

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