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State v. Altabef

Court of Appeals of Oregon

August 29, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
AARON SCOTT ALTABEF, Defendant-Appellant.

          Submitted on remand October 11, 2017

          Marion County Circuit Court 13C41985, Thomas M. Hart, Judge.

         On remand from the Oregon Supreme Court, State v. Altabef, 361 Or. 885, 403 P.3d 768 (2017).

          Jesse Wm. Barton fled the opening, reply, and first supplemental briefs for appellant. On the second supplemental brief was Mark J. Geiger.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, fled the answering brief for respondent. On the supplemental briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

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

         Case Summary:

         This case is before the Court of Appeals after the Supreme Court vacated the court's previous decision and remanded for reconsideration in light of State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017), and State v. Zavala, 361 Or. 377, 393 P.3d 230 (2017). Held: The trial court erred in failing to conduct OEC 403 balancing before admitting evidence of defendant's previous sexual abuse of the victim, and the error was not harmless. Defendant conceded, and the court agreed, that the appropriate remedy is the type of limited remand described in Baughman.

         [293 Or.App. 536] Reversed and remanded as to Counts 2 and 4; otherwise affirmed.

         [293 Or.App. 537] DeVORE, J.

         This case comes to us on remand from the Supreme Court. State v. Altabef, 361 Or. 885, 403 P.3d 768 (2017). In our initial decision, we held that the trial court committed reversible error as to the counts on which defendant was convicted by admitting evidence of defendant's previous conduct toward the victim without first balancing the probative value of that evidence against its risk of unfair prejudice under OEC 403, and we remanded for a new trial on those counts. State v. Altabef, 279 Or.App. 268, 379 P.3d 755 (2016). We rejected the remainder of defendant's assignments of error without written discussion. Id. at 269. After our decision, the Supreme Court decided State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017), and State v. Zavala, 361 Or. 377, 393 P.3d 230 (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." State v. Holt, 292 Or.App. 826, 828, __P.3d__(2018). The Supreme Court vacated our decision and remanded for reconsideration in light of Zavala, Mazziotti, and Baughman. Altabef, 361 Or. at 885.

         On remand, we again conclude that the trial court committed reversible error in failing to conduct OEC 403 balancing. Defendant concedes, and we agree, that the appropriate remedy is the type of limited remand described in Baughman. The state, however, contends that a remand for balancing is unnecessary because the trial court's failure to have done so is harmless error. We reject that contention for the reasons that follow.

         Defendant was charged with four sexual crimes for conduct against his niece, J. We summarized the relevant facts in our first opinion:

"J alleged that defendant sexually abused her three times between November 2012 and January 2013. The charges concern the latter two incidents. J said that the first incident happened at her grandparents' house in Snohomish County, Washington, while she and her family visited over Thanksgiving. The second incident happened during the [293 Or.App. 538] car ride back home from her grandparents' house, while defendant shared the backseat with J and her younger sister. The ...

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