State v. Garcia
State v. Garcia
Opinion of the Court
*428*329Defendant challenges his convictions for multiple sexual offenses, asserting that the trial court erred in admitting evidence of uncharged sexual misconduct and evidence that defendant threatened to kill one of the victims and her mother after the victim's mother reported the sexual abuse to the police. On appeal, defendant argues that (1) the uncharged sexual misconduct was inadmissible propensity evidence and it was substantially more prejudicial than probative, and (2) the threat evidence had little relevance because the threats were made after the abuse was reported and it was therefore unduly prejudicial because it suggested that defendant was a dangerous person. Defendant also asserts that the trial court failed to balance the probative value of the evidence in both instances against the danger of unfair prejudice to defendant. We write only to address whether the trial court conducted the required OEC 403 balancing
"In reviewing a trial court's application of OEC 403, we begin by summarizing all of the evidence and procedure related to the trial court's ruling." State v. Kelley ,
In response to defendant's motion, as to the uncharged sexual misconduct, the state primarily relied on State v. Stephens ,
Defendant responded as follows:
"A more concerning issue, Your Honor, is the State's desire to introduce uncharged prior bad acts in this case.
*331And it's particularly concerning because these are prior bad acts which a jury could mistakenly infer is action in conformity, and that is the most dangerous type of evidence that can be introduced to a jury because I think it allows some jurors to no longer have to hold the State to their burden of proof; that is, hold the State to prove the elements of the charges in the indictment but rather to rely on other evidence to support that claim. And I think it's easy for a jury to make that leap if they are hearing about other uncharged evidence.
"For the record, Your Honor, I'm claiming that any evidence of any prior uncharged sexual conduct is not only not probative to the elements of the charges in this case but is extremely prejudicial ."
The court, after reading out loud portions of Stephens , concluded that the
" Stephens case is right on point with the facts in this case. You had two victims, both with long-term incidents involving-or the defendant had long-term incidents with the same two victims. And then the reporting doesn't really come until the mother reports that in 2009. And these incidents had been going on for many years, in the case of [C] and then I guess about a year and a half involving [A].
"So I think those incidents, as set out by the two, [C] and [A], would be admissible for noncharacter purposes set out in Stephens , and so I think they would be admissible."
As for the threat evidence, M, who is the brother of A and C, testified at the in limine hearing that, "after [defendant] had left the residence leading up to [the] trial," defendant threatened "everyone from my family," and had threatened that he would "even kill [his] niece if he had to." C also testified that, after defendant "fled the scene" in 2009, he "threatened to kill" her. To admit evidence of the threats, the state relied on Zybach , in which the Supreme Court held that evidence of the defendant's continuing attempts to persuade the child victim to have sexual intercourse with him after raping her was admissible under OEC 404(3) to explain the nine-month delay between the rape and the victim's report of the rape in order to stop the defendant's unwanted "advances."
*332occurred many years before they reported those offenses, under Zybach , the threats were relevant to show why it took a long time to report the charged abuse.
Defendant's counsel responded as follows:
"I think I kind of want to separate a couple of issues. First of all, there is evidence that the alleged victims in this case are afraid of my client. And I think that that's-I wouldn't call that character evidence because I think that's really-it's not a reflection of my client but, really, a reflection of their feelings towards my client. So I don't think that's really character evidence in and of itself. So I don't have a problem with that.
"But when we take a further step and say we're afraid of my client because of threats, that's where we start getting into character evidence of my client. And that's where my concerns start to be raised here, because it is clearly showing evidence with very little probative value to the elements of the charges in this case, but is very prejudicial to my client getting a fair trial because it does appear to portray him in a bad light ."
The trial court ruled that the threats were not character evidence. That is, M and C were
*430"not saying [defendant] is a violent person and he has a reputation to that. They're saying he threatened [them] if [they] told that he would harm [them] or harm [their] mother. So I don't think that's character evidence.
"I think it would be party opponent admissions and certainly could be perceived as evidence that [defendant] had engaged in that conduct. So I certainly think it would be relevant evidence.
"So I think the statements of the threatened harm if they told, and then [A] also said there was one occasion [defendant] threatened physical harm to get [A] to engage in anal sex, that would be relevant as well. I don't think that's character evidence, and so those two would be admissible.
"* * * * *
"Certainly, I think the two victims can talk about why they didn't report. I think all of that is admissible under *333the Zybach case; however, [M] is not a victim, so I'm not seeing the same analysis under Zybach .
"* * * * *
"I'm not seeing how that would independently be relevant under Zybach . And so I think certainly the threat is admissible, the threat to kill. I think that goes to evidence of guilt."
At trial, both A and C testified that defendant sexually abused them for periods of time that were not charged by the state. Specifically, C testified that the sexual contact did not end until she was 22 years old, and her testimony included a description of an incident during that period that was particularly graphic. A testified that he was sexually abused four or five times per month for a period of time leading up to the charged sexual crime that occurred in 2009. M testified that, "because of what happened" during the month that Rivera reported the abuse to police, defendant stated that he wanted to kill C and her daughter and that Rivera would "rue the day."
We reject without discussion defendant's challenges to the relevance and admissibility under OEC 404(3) of the uncharged sexual contact. As we explain below, because the trial court failed to expressly or implicitly weigh the probative value of the evidence against the risk of unfair prejudice to defendant before admitting it, we must reverse and remand for the trial court to reevaluate the probative value of the evidence and balance it against the risk of unfair prejudice. See State v. Mazziotti ,
We begin with defendant's OEC 403 argument. The state contends that defendant did not preserve that argument: "Although defendant made a clear relevance objection to that evidence, he did not articulate a separate OEC 403 * * * objection to it-an objection that assumes the relevance of evidence but asks for its exclusion on the ground that 'its probative value is substantially outweighed by the danger of unfair prejudice.' " (Quoting OEC 403.) The state adds that *334defendant's assertion that the evidence was "extremely prejudicial" was part of his relevance objection, i.e. , he was arguing that the disputed evidence was potentially dangerous and prejudicial character evidence. We disagree with that reading of the record.
We recently addressed, and rejected, a similar preservation argument in Kelley ,
"[a]lthough defendant did not expressly refer to OEC 403 or request balancing, such an explicit reference is not required if the circumstances otherwise suffice to place the court and opposing parties on notice of defendant's contention that any probative value was outweighed by the risk of unfair prejudice. See State v. Walker ,350 Or. 540 , 552,258 P.3d 1228 (2011) ('The appropriate focus * * * is [on] whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.'); Peeples v. Lampert ,345 Or. 209 , 220,191 P.3d 637 (2008) (explaining that the touchstone of the preservation requirement is *431procedural fairness to the parties and the trial court). Here, in addition to challenging the relevance of the evidence, defendant also asserted that it would be 'highly prejudicial.' Under the circumstances, we conclude that that assertion was sufficient to raise a challenge under OEC 403. See, e.g. , State v. Roberts ,291 Or. App. 124 , 129 n. 3,418 P.3d 41 (2018) (holding that the defendant had adequately preserved OEC 403 objection even though his argument to trial court primarily focused on relevance and spoke little of prejudice, where he asserted that the evidence would be 'extremely prejudicial')."
Id. at 97,
Turning to defendant's argument that the trial court did not conduct OEC 403 balancing, we first point out that the Supreme Court very recently addressed, in State v. Anderson ,
The Supreme Court noted that Mayfield "provides valuable guidance for trial and appellate courts on the meaning and application of OED 403" but that it "did not set out a checklist that trial courts must mechanically tick off on the record or risk reversal." Anderson ,
*336"Rather, it identifies the factors a trial court should consider in exercising its discretion under OEC 403, and it recognizes that the record should reflect that the trial court exercised its discretion in resolving the objection. [ Mayfield ,302 Or. at 645 ,733 P.2d 438 .] Beyond that, however, Mayfield provides little guidance as to how or to what extent the record should reflect the trial court's exercise of discretion."
*432arguments, demonstrates that the court balanced the appropriate considerations." Id. at 406,
By contrast, in this case, we conclude that the record is insufficient to determine that the trial court conducted the requisite OEC 403 balancing. Although defendant raised the unfairly prejudicial effect of the evidence of uncharged sexual contact and threats-namely, the risk that the jury would use that evidence to convict defendant on the ground that he was a bad person, rather than on proof that he committed the charged conduct-the state focused exclusively on that evidence's probative value, primarily relying on Stephens and Zybach (neither of which addressed OEC 403 balancing), and never addressed the risk of unfair prejudice from that evidence. Likewise, the record shows that the trial court's ruling reflected the state's argument, which concerned only the evidence's probative value. Unlike Anderson , where the trial court specifically indicated an *337intention to view the disputed evidence in order to conduct OEC 403 balancing, the trial court here evinced no such intention; the record does not suggest that its ruling went beyond relevance. The record here lacks any indication that the court weighed the probative value of the contested evidence against its prejudicial effect.
We further conclude that the admission of the evidence was not harmless. See State v. Sewell ,
Therefore, consistently with Baughman , we remand to the trial court to conduct balancing under OEC 403.
Reversed and remanded.
OEC 403 provides, as relevant, that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]"
OEC 404(3) provides:
"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
We also recognized that the Supreme Court "has not yet addressed the question 'whether, in addition to objecting to the admission of [prior acts] evidence, a party also must explicitly seek balancing under OEC 403 ' to raise an OEC 403 issue on appeal." Kelley ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.