and submitted September 22, 2017.
review from the Court of Appeals (CC 123592) (CA
C. Moan, Assistant Attorney General, Salem, argued the cause
and fled the brief on behalf of petitioner on review. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
P. Seltzer, Deputy Public Defender, Offce of Public Defense
Services, Salem, argued the cause and fled the brief on
behalf of respondent on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
Walters, Chief Justice, and Balmer, Kistler, Nakamoto, and
Nelson, Justices. [**]
Or. 393] Case Summary:
state sought to admit a booking video to show that the
clothing defendant was wearing in the video was similar to
the clothing of a person shown attempting to withdraw money
from the victim's ATM. Defendant objected to the
admission of the video under OEC 403. After hearing the
parties' arguments on the degree of relevance, and the
prejudicial effect of seeing defendant in handcuffs while
being booked, the trial court watched the video to help it
“decide the balancing issue.” After watching the
video to determine the similarity of the clothing, the court
stated that the video was relevant and admitted it. The Court
of Appeals reversed, not because the trial court had abused
its discretion but because it had failed to sufficiently
explain the basis of its OEC 403 ruling.
court will make a sufficient record of its consideration of
the probative value of evidence, its prejudicial effect, and
the balance it struck if the court's OEC 403 ruling,
considered in light of the parties' arguments,
demonstrates, as the record did here, that the court balanced
the appropriate considerations.
decision of the Court of Appeals is reversed, and the
judgment of the circuit court is affirmed.
Or. 394] KISTLER, J.
court may exclude relevant evidence if the "probative
value [of the evidence] is substantially outweighed by the
danger of unfair prejudice." OEC 403. In this case, the
trial court admitted a booking video of defendant over an OEC
403 objection because the video bore on the central issue in
the case-the identity of the person who had taken money from
the victim's bank account. A divided Court of Appeals
reversed the trial court's ruling, not because the trial
court had abused its discretion in admitting the video but
because it had failed to sufficiently explain the basis for
its ruling. State v. Anderson, 282 Or.App. 24, 386
P.3d 154 (2016). We allowed the state's petition for
review to consider that recurring issue. We now reverse the
Court of Appeals decision and affirm the trial court's
people-Debra, Michelle, and Charles- shared a house in
Lincoln City. Defendant needed a place to stay, and Debra and
Michelle agreed that defendant could "crash" at
their house for a couple of days. The weekend after defendant
began staying at their house, Debra tried to withdraw money
from her Wells Fargo bank account at an ATM but was unable to
Monday morning, Debra checked with Wells Fargo and learned
that someone had withdrawn $300 from her account at a Wells
Fargo ATM and that the personal identification number (PIN)
for her account had been changed. She also learned that, six
or seven minutes after $300 had been withdrawn from the Wells
Fargo ATM, someone had attempted to withdraw additional funds
from her account at a nearby Bank of America ATM.
learning that information, Debra went home and found that her
emergency ATM card, with her PIN attached, had been taken
from the dresser drawer in her bedroom. She also realized
that defendant had moved out of her house on Sunday rather
than later, as he initially had planned.
Or. 395] Debra notified the police, who obtained a
surveillance video from the Bank of America
The police showed Debra and Michelle stills taken from the
video, which depicted a person attempting to use Debra's
ATM card at the Bank of America ATM and also walking away
from the ATM. The stills either do not show the person's
face or do not do so clearly. Despite that fact, both Debra
and Michelle identified the person in the stills as
defendant, based on the clothing that the person was wearing
and the person's general physical resemblance (height and
build) to defendant.
asked at trial what stood out to her about the person
depicted in the stills, Debra testified:
"The red gloves, the shoes he's wearing, the pants
that he's wearing, uh, the coat. I mean, the stuff is
what I had seen [defendant] in all the days that he had been
staying at our house. A hoodie. A gray hoodie, which is
Debra and Michelle described the red gloves pictured in the
stills as distinctive; there is a print of a skeleton's
fingers on the gloves, which were similar to gloves that
Debra and Michelle had seen defendant wear.
cross-examination, defense counsel brought out that the
person's face in the stills could not be seen clearly,
that the clothes were relatively common, and that it was not
completely clear from the stills how tall the person was.
Defense counsel also elicited testimony from Debra and
Michelle that they had had "prior theft issues at the
house," that their roommate Charles had a gambling
problem, and that Charles had twice stolen the rent money.
Both Debra and Michelle testified, however, that the person
in the stills did not resemble Charles, who had a moustache.
support its claim that defendant was the person depicted in
the stills, the state offered a booking video of defendant
taken approximately two weeks after the withdrawal from
Debra's bank account. The state wanted to introduce the
video to show that defendant was wearing the same or similar
clothing in the booking video as the person [363 Or. 396]
depicted in the Bank of America stills. Defendant objected to
the video's admission, and the parties engaged in the
following colloquy with the court outside the jury's
"[DEFENSE COUNSEL]: [What] I'm expecting [the state]
to show here is there's some, um, some video of
[defendant] walking into the jail after he was arrested. So
he's kind of, uh, in handcuffs, walking into the jail.
There's no audio.
“* * * * *
"I guess what my concern becomes is it's showing
[defendant] in custody. Just as in trial here, um, you know,
the jury's not to know custodial status, seeing him, you
know, with the walk of shame, handcuffs on, being taken to
the jail I think creates a, creates a problem for us. Even
understanding the State's trying to show it for what
he's wearing, nonetheless, it's, it's certainly
showing him in, in police custody, and that's where my,
um, my concern lies.
"THE COURT: Is that an objection?
"[DEFENSE COUNSEL]: Yes. That's my-my objection is
to the, uh, admissibility of this, of this video on those
"THE COURT: And, and the-and what's the objection? I
mean, what's-what rule do you cite to say it's [not
"[DEFENSE COUNSEL]: [I] guess it always comes down to,
in a, in a relevance type of situation, the, uh, comparing
the relevance, which I'll, I'll concede there is some
relevance there because there's, uh-we're talking
about the clothing, but versus the, the prejudicial value
"Now the jury can certainly never know while I'm in
trial, you know, we don't bring [defendant] in with the
orange jumpsuit because, uh, the, the jury can never know.
It's prejudicial for them to know that he's in
custody on this.
"I think we have the similar problem, um, with the, with
the parade into the jail. I think this becomes more
problematic, because I think that he was, he was brought in
on a probation violation, um, as he was brought into the
jail. So it's not just like a DUI situation where [you]
see the video of the person being arrested right then. This
is [363 Or. 397] a, a later video of when he's brought
in. And, um, I, I guess my concern is the prejudicial effect.
That this creates, um, weight against the, the relevance
value of it. It's, um, it's too prejudicial showing,
frankly, my client's custody status.
"THE COURT: And, uh, just from the file, I'm going
to guess you're going to tell me that the arrest was at