Submitted on remand October 11, 2017
County Circuit Court 13C41985, Thomas M. Hart, Judge.
remand from the Oregon Supreme Court, State v.
Altabef, 361 Or. 885, 403 P.3d 768 (2017).
Wm. Barton fled the opening, reply, and first supplemental
briefs for appellant. On the second supplemental brief was
Mark J. Geiger.
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
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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
Or.App. 536] Reversed and remanded as to Counts 2 and 4;
Or.App. 537] DeVORE, J.
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.
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.
was charged with four sexual crimes for conduct against his
niece, J. We summarized the relevant facts in our first
"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 ...