State v. Salsman
State v. Salsman
Opinion of the Court
*347Defendant appeals a judgment of conviction for three counts of first-degree sodomy (Counts 1 to 3), ORS 163.405, and three counts of first-degree sexual abuse (Counts 4 to 6), ORS 163.427. A jury found that defendant committed those crimes by abusing his niece over a number of months around the time she turned 10. On appeal, he contends that (1) the trial court plainly erred when it did not acquit him on Counts 1, 4, 5, and 6; (2) the trial court erred when it admitted certain evidence over defendant's OEC 403 objection without creating the record required by State v. Mayfield ,
Defendant's assignments of error put at issue the adequacy of the trial court's OEC 403 balancing with respect to five items of evidence: (1) a photo of defendant's office showing it decorated with female action figures;
The trial court overruled defendant's objections. Regarding the images included in the binder and the Cinderella image, the court ruled that it was admitting the evidence "on the same basis" that it admitted *92evidence of the victim's statements about the images, to which defendant also had objected.
On appeal, defendant argues that the trial court erred in overruling his OEC 403 objections without creating the record required under Mayfield , that is, that the court "fail[ed] to make a record which reflects an exercise of discretion." Mayfield ,
The state's preservation argument fails as a matter of law. As we recently explained, under State v. Anderson ,
Turning to the merits, the adequacy of a trial court's analysis under OEC 403, as implemented by Mayfield , is a question of law and we review the sufficiency of that analysis for errors of law. State v. Shaw ,
A trial court makes the record required by Mayfield if the record reflects that the court employed the four-part method of analysis adopted by the Supreme Court in Mayfield : (1) "analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence"; (2) "determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime"; (3) balance steps one and two; and (4) make a ruling on admission.
Under that standard, we conclude that the trial court's rulings do not comport with Mayfield . As to whether the court "consciously" conducted the required balancing, nothing in the record indicates that it did. The court either admitted the evidence without comment or admitted it because it had previously admitted other similar evidence. If anything, the court's statement that it was admitting certain evidence because it had previously admitted similar evidence in a different form affirmatively indicates that the court did not consciously conduct the required balancing with respect to the particular evidence at issue but, instead, merely relied on its prior rulings without considering the distinct nature of the evidence at issue.
*350In addition, the record of the court's analysis does not allow for meaningful review. This is not a case in which the outcome of a considered OEC 403 balancing process is by any means obvious. Although the evidence appears to be relevant, it also appears to be cumulative of other evidence, and, at least with respect to the images, the potential for unfair prejudice is readily apparent from their graphic nature.
*93The trial court therefore erred when it failed to create a more developed record of its analysis of the Mayfield considerations with respect to the identified items of evidence. The remaining question is whether those errors were harmless, that is, if there is "little likelihood that the particular error[s] affected the verdict?" State v. Davis ,
We reach a different conclusion regarding the sexually explicit images and the officer's testimony about the Cinderella image. Given the graphic nature of the images and the testimony about the Cinderella image, there is some likelihood that the admission of that evidence affected the jury's verdict.
Given that conclusion, with respect to those three items of evidence, we must reverse and remand for the trial court to conduct OEC 403 balancing in a manner that comports with Mayfield , and for such other proceedings that may be required as a result of the outcome of that balancing. See State v. Baughman ,
Reversed and remanded.
Defendant argued that the action figures were more prejudicial than probative because, taken together with the other evidence, they "tended to show that defendant had a predilection for sexual deviance."
Defendant's first trial ended in a mistrial. The trial judge who handled the first trial rejected defendant's OEC 403 challenge to the evidence and the trial judge who tried the case for the second time declined to revisit that ruling.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.