State v. Williams

No. 9 March 19, 2015 1

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

SHAWN GARY WILLIAMS,

Respondent on Review.

(CC 08CR0707; CA A145644; SC S061769)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 23, 2014.

David B. Thompson, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

With him on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem,

argued the cause and filed the brief for respondent on review.

With her on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

WALTERS, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to the Court of Appeals for consideration

of defendant’s remaining assignments of error.

________________

* Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 258 Or

App 106, 308 P3d 330 (2013).

2 State v. Williams

Defendant was charged with two counts of first-degree sexual abuse. At trial,

defendant moved to suppress evidence that he possessed two pairs of children’s

underwear at the time of the crime. The trial court denied defendant’s motion

and admitted the evidence under OEC 404(3), and a jury convicted defendant on

both counts. The Court of Appeals reversed, holding that the underwear evidence

was irrelevant under OEC 401 and therefore inadmissible. Held: (1) In criminal

cases, OEC 404(4) supersedes OEC 404(3) and permits the admission of relevant

evidence of the defendant’s other crimes, wrongs, or acts except to the extent

required by the state or federal constitution or other express statutory excep-

tions; (2) In prosecutions for child sexual abuse, due process requires that the

trial court determine whether the risk of unfair prejudice outweighs the proba-

tive value of the evidence under OEC 403; (3) Here, the underwear evidence was

logically relevant, the trial court properly engaged in balancing under OEC 403,

and defendant does not challenge the trial court’s application of OEC 403. The

trial court therefore did not err in admitting the underwear evidence.

The decision of the Court of Appeals is reversed, and the case is remanded

to the Court of Appeals for consideration of defendant’s remaining assignments

of error.

Cite as 357 Or 1 (2015) 3

WALTERS, J.

Defendant was charged with two counts of first-

degree sexual abuse for conduct involving a five-year-old

child. The state offered evidence that defendant possessed

two pairs of children’s underwear at the time that he com-

mitted the charged acts. Defendant opposed the admission

of the evidence as irrelevant under Oregon Evidence Code

(OEC) 4011 and unfairly prejudicial under OEC 403.2 The

trial court admitted the evidence under OEC 404(3) 3 to show

that defendant had touched the victim with a sexual pur-

pose rather than accidentally. A jury convicted defendant

on both counts. The Court of Appeals reversed, holding that

the underwear evidence was not logically relevant to any

disputed issue and thus was inadmissible under OEC 401.

State v. Williams, 258 Or App 106, 308 P3d 330 (2013). The

state petitioned for review, which we allowed to determine

whether the evidence was admissible under OEC 401, OEC

403, or OEC 404. We conclude that the trial court did not err

in admitting the underwear evidence, and we reverse the

decision of the Court of Appeals.

The state charged defendant with two acts of sexual

abuse: putting his hand down the underwear of the five-year-

old victim and touching her vaginal area, and causing the

victim to touch defendant’s clothed penis. Defendant denied

committing either act. During a police interview, defendant

admitted that it was possible that he inadvertently could

have touched the victim’s genital area on three occasions:

1

OEC 401 provides:

“ ‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

2

OEC 403 provides:

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay or needless

presentation of cumulative evidence.”

3

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.”

4 State v. Williams

once while he was carrying the victim on his shoulders, once

when he and the victim were wrestling, and once when he

fell asleep while the victim was lying on top of him. At trial,

defendant continued to maintain that he had never put his

hand under the victim’s underwear or placed the victim’s

hand onto his clothed penis.

The state sought to introduce two pairs of chil-

dren’s underwear that defendant’s landlord had found in

defendant’s residence after defendant vacated the property.

Defendant’s landlord testified that one pair of underwear

was between the mattress and box spring on defendant’s bed

and another pair was in a duffel bag. Defendant testified

that he did not know where the underwear had come from,

but that a female friend and her two young children had

spent the weekend at his residence and they possibly had

left the underwear behind on that occasion.

Defendant objected to the admission of the under-

wear evidence, arguing that the evidence did not estab-

lish that the underwear was in his possession. He further

argued that the underwear was irrelevant to any material

issue and that, even if relevant, the evidence was offered

only to suggest that defendant had “a problem with little

girls”—i.e., that he was a pedophile—and that he acted

in conformity with that character in touching the victim

in this case. Therefore, defendant asserted, the evidence

was unfairly prejudicial and inadmissible under OEC

403.

The state responded that the evidence was not

unfairly prejudicial and was admissible under OEC 404(3)

to show that defendant had touched the victim with a

sexual purpose rather than accidentally. The trial court

agreed and admitted the evidence under OEC 404(3). The

jury convicted defendant of two counts of first-degree sex-

ual abuse.

Defendant appealed, and the Court of Appeals

reversed, holding that OEC 403 and OEC 404(3) apply to

only evidence that is logically relevant under OEC 401, and

that the underwear evidence was not relevant to a “con-

tested issue in the case.” Williams, 258 Or App at 112-13.

Cite as 357 Or 1 (2015) 5

The court explained that the issue of defendant’s intent was

not truly contested because defendant had not argued that,

if he had touched the victim as alleged, he did so without

criminal intent. Id. at 113-14. The court further reasoned

that, if defendant had performed the charged acts, then

those acts “strongly indicate a sexual purpose.” Id. at 114.

The court reversed and remanded for a new trial. Id. at 117.

This court allowed the state’s petition for review.

Before this court, the state contends that we need

not decide whether the underwear evidence was admissi-

ble under OEC 404(3) to demonstrate defendant’s sexual

purpose. The state argues that, in criminal cases, OEC

404(4) supersedes OEC 404(3) and makes relevant “other

acts” evidence admissible for all purposes. OEC 404(4)

provides:

“In criminal actions, evidence of other crimes, wrongs

or acts by the defendant is admissible if relevant except as

otherwise provided by:

“(a)  [OEC 406 through 412] and, to the extent

required by the United States Constitution or the Oregon

Constitution, [OEC 403];

“(b)  The rules of evidence relating to privilege and

hearsay;

“(c)  The Oregon Constitution; and

“(d)  The United States Constitution.”

The legislature enacted OEC 404(4) in 1997. Or

Laws 1997, ch 313, § 29. Before that date, a court’s analy-

sis of the admissibility of relevant “other acts” evidence in a

criminal case began with OEC 404(3), which provides:

“Evidence of other crimes, wrongs or acts is not admissi-

ble 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.”

See State v. Johns, 301 Or 535, 549-50, 725 P2d 312 (1986)

(considering OEC 404(3) as first step in analysis). If the

evidence was admissible for a nonpropensity purpose

6 State v. Williams

under OEC 404(3), a court then considered whether the

evidence nevertheless should be excluded under OEC 403.

See State v. Pinnell, 311 Or 98, 112-13, 806 P2d 110 (1991)

(determination that evidence was admissible under OEC

404(3) must be followed by determination that it was not

unduly prejudicial under OEC 403); see also State v. Shaw,

338 Or 586, 614-15, 113 P3d 898 (2005) (discussing fac-

tors in making determination under OEC 403). OEC 403

provides:

“Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay or needless pre-

sentation of cumulative evidence.”

OEC 404(3) represents “a specific application of

OEC 403.” Pinnell, 311 Or at 106. The purpose of both rules

is to exclude evidence that may be unfairly prejudicial to the

accused:

“Bad character evidence (such as other crimes by the

accused) is excluded under the propensity rule [of OEC

404(3)], not because it is irrelevant, but because of the risk

of unfair prejudice to the accused. The propensity rule’s

general prohibition of bad character evidence, codified in

OEC 404(2) and OEC 404(3), is a specific application of

OEC 403. The theory is that the risk that the jury will con-

vict for crimes other than those charged, or because the

accused deserves punishment for his past misdeeds, out-

weighs the probative value of the inference that ‘he’s done

it before, he’s done or will do it again.’ * * * Another reason

for the propensity rule in criminal cases is that it is viewed

as unfair to require an accused to be prepared not only to

defend against the immediate charge, but also to defend or

explain away unrelated acts from the past. Additionally,

courts are concerned with confusion of issues and undue

consumption of time through what may be, in effect, a trial

within a trial to ascertain the relationship between the

purported other crime and the defendant.”

Id. at 105-07 (internal citations and footnotes omitted).

In this case, however, the state argues for a differ-

ent analytical paradigm. The state contends that, in crim-

inal cases, OEC 404(4) now supersedes OEC 404(3), and

Cite as 357 Or 1 (2015) 7

that relevant “other acts” evidence is now admissible for all

purposes unless, after conducting “due process balancing”

under OEC 403, the court determines that the federal Due

Process Clause requires the exclusion of that evidence. In

the state’s view, the Due Process Clause of the Fourteenth

Amendment to the United States Constitution requires

exclusion of “other acts” evidence only when the admission

of the evidence would render the trial fundamentally unfair.

The state cites Leavitt v. Arave, 383 F3d 809, 829 (9th Cir

2004), cert den, 545 US 1105 (2005), for the proposition that

the admission of “other acts” evidence renders the trial fun-

damentally unfair when that evidence “goes only to char-

acter and there are no permissible inferences the jury may

draw from it.” (Internal quotation marks omitted; emphasis

in original). The state argues that, because that circum-

stance is not present here, and because the underwear evi-

dence is logically relevant under OEC 401, it is admissible

under OEC 404(4).

Defendant responds that the state is arguing that, in

criminal cases, OEC 404(4) permits the admission of “other

acts” evidence for all purposes, including for the sole pur-

pose of establishing a defendant’s character and propensity

to act accordingly. He contends that, under the state’s con-

struction, OEC 404(4) would abrogate both OEC 404(3) and

“traditional” balancing under OEC 403. Defendant argues

that the legislature did not intend that result and that the

federal constitution precludes it. In defendant’s view, the

underwear evidence proffered by the state is relevant only to

establish his character as a pedophile, and it therefore must

be excluded under OEC 401, OEC 404(3), OEC 403, and the

principles of due process.

We begin our analysis of the parties’ arguments

with a discussion of the common-law origins of the eviden-

tiary rules precluding or limiting the admission of “other

acts” evidence to establish propensity and the extent to

which those rules are required by due process. See Stevens v.

Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (for purposes

of statutory interpretation, context includes preexisting

law). We then return to the text of OEC 404(4) to consider

whether it supersedes OEC 404(3) or abrogates or modifies

the balancing required by OEC 403.

8 State v. Williams

Courts have excluded “other acts” evidence when

offered to show propensity since the late seventeenth century.

David P. Leonard, The New Wigmore, A Treatise on Evidence:

Evidence of Other Misconduct and Similar Events § 1.2, 2

(2009) (“One of the oldest principles of Anglo-American law

is that a person ‘should not be judged strenuously by refer-

ence to the awesome spectre of his past life.’ ”) (quoting M.C.

Slough & J. William Knightly, Other Vices, Other Crimes, 41

Iowa L Rev 325, 325 (1956)); see also 1 John H. Wigmore,

Evidence in Trials at Common Law § 57, 127 (1st ed 1904)

(“Our rule, then, firmly and universally established in pol-

icy and tradition, is that the prosecution may not initially

attack the defendant’s character.”). Historians of evidence

law frequently cite two seventeenth-century English cases

for the origins of that rule: Hampden’s Trial, 9 How St Tr

1053 (KB 1684), and Harrison’s Trial, 12 How St Tr 833 (Old

Bailey 1692). See 1 Wigmore, Evidence § 216 at 265 (discuss-

ing cases); Leonard, New Wigmore § 1.2 at 8 (same). Samuel

March Phillipps, the author of one of the earliest English

treatises on evidence and one of the first works on the law of

evidence published in the United States, also cited an 1810

case, Rex v. Cole, for the proposition that

“[i]t would not be allowable to shew, on the trial of an indict-

ment, that the prisoner has a general disposition to com-

mit the same kind of offence as that charged against him.

Thus, in a prosecution for an infamous crime, an admission

by the prisoner that he had committed such an offence at

another time and with another person, and that he had a

tendency to such practice, ought not to be admitted.”

Samuel March Phillipps, A Treatise on the Law of Evidence

(1814) (cited in Leonard, New Wigmore § 2.2 at 21).

In 1892, the United States Supreme Court relied on

the common law to decide that evidence of the defendants’

prior robberies was inadmissible in a trial for murder com-

mitted during a robbery, stating:

“Proof of [the robberies] only tended to prejudice the

defendants with the jurors, to draw their minds away from

the real issue, and to produce the impression that they

were wretches whose lives were of no value to the com-

munity, and who were not entitled to the full benefit of

the rules prescribed by law for the trial of human beings

Cite as 357 Or 1 (2015) 9

charged with crime involving the punishment of death. * * *

However depraved in character, and however full of crime

their past lives may have been, the defendants were enti-

tled to be tried upon competent evidence, and only for the

offence charged.”

Boyd v. United States, 142 US 450, 458, 12 S Ct 292, 35 L Ed

1077 (1892). One year later, the Oregon Supreme Court also

condemned the admission of evidence of a defendant’s prior

crimes to prove that the defendant had acted accordingly in

the charged circumstances. State v. Baker, 23 Or 441, 442-

43, 32 P 161 (1893). In Baker, the court explained that “no

enlightened system of justice” would permit the admission

of such evidence:

“The general rule is unquestioned that evidence of a dis-

tinct crime unconnected with that laid in the indictment

cannot be given in evidence against the prisoner. Such evi-

dence tends to mislead the jury, creates a prejudice against

the prisoner, and requires him to answer a charge for the

defense of which he is not supposed to have made prepara-

tion. And while, as Lord Campbell says, ‘it would be evi-

dence to prove that the prisoner is a very bad man, and

likely to commit such an offense’ (Reg. v. Oddy, 5 Cox C. C.

210), under no enlightened system of jurisp[r]udence can a

person be convicted of one crime on proof that he has com-

mitted another.”

Id.; accord State v. Saunders, 14 Or 300, 309, 12 P 441

(1886); State v. Martin, 47 Or 282, 285, 83 P 849 (1906). By

1948, that view was widespread. Michelson v. United States,

335 US 469, 475-76, 69 S Ct 213, 93 L Ed 168 (1948). As

the United States Supreme Court explained, “[c]ourts that

follow the common-law tradition almost unanimously have

come to disallow resort by the prosecution to any kind of

evidence of a defendant’s evil character to establish a proba-

bility of guilt.” Id. at 475.

When state and federal jurisdictions adopted rules

of evidence, those rules often reflected that common-law tra-

dition and precluded the admission of “other acts” to prove

propensity. In Oregon, OEC 404(3) and its predecessor stat-

utes have long provided that “other acts” evidence “is not

admissible to prove the character of a person in order to

show that the person acted in conformity therewith,” but is

10 State v. Williams

admissible for other purposes.4 Similarly, the Federal Rules

of Evidence (FRE) provide that:

“(1)  * * * Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accor-

dance with the character.

“(2)  * * * This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.”

FRE 404(b).5

After the adoption of the Federal Rules of Evidence,

federal courts generally looked to the text of those rules

rather than to the common law or to the federal constitu-

tion to determine the admissibility of “other acts” evidence.6

That changed, however, as to cases in which a defendant

is charged with sexual assault or child molestation, when

Congress adopted FRE 413 and 414 in 1994. Pub L No 103-

322, § 320935, 108 Stat 2135 (1994).7 Because those rules

permit the admission of relevant “other acts” evidence in

such cases, federal courts were asked to interpret those

rules and determine whether they supersede FRE 404(b),

4

OEC 404(3) was enacted as part of the OEC in 1981. Or Laws 1981, ch 892,

§ 24. Prior to the enactment of the Oregon Evidence Code, evidence in Oregon

was governed by Field’s Model Code of Evidence, which dated to 1862. Laird C.

Kirkpatrick, Reforming Evidence Law in Oregon, 59 Or L Rev 43, 43 (1980).

5

Congress enacted the Federal Rules of Evidence in 1975. See Pub L No

93-595, 88 Stat 1929 (1975).

6

In 1991, the United States Supreme Court expressly reserved the question

whether an evidentiary rule would violate the Due Process Clause if it permitted

the use of prior crimes evidence to show a defendant’s propensity to commit a

charged crime. Estelle v. McGuire, 502 US 62, 75 n 5, 112 S Ct 475, 116 L Ed 2d

385 (1991).

7

FRE 413 provides, in part:

“In a criminal case in which a defendant is accused of a sexual assault,

the court may admit evidence that the defendant committed any other sex-

ual assault. The evidence may be considered on any matter to which it is

relevant.”

FRE 414 provides, in part:

“In a criminal case in which a defendant is accused of child molestation,

the court may admit evidence that the defendant committed any other child

molestation. The evidence may be considered on any matter to which it is

relevant.”

Cite as 357 Or 1 (2015) 11

whether they are subject to FRE 403,8 and whether they

comport with due process.

Federal circuit courts that have considered the mat-

ter have held that Congress intended that FRE 413 and 414

supersede FRE 404(b).9 2 J.B. Weinstein & M.A. Berger,

Weinstein’s Federal Evidence § 413.04, at 413-10 to -11 (J.M.

McLaughlin ed., 2d ed 2010). In addition, federal circuit

courts that have considered the matter have decided that

evidence admitted under FRE 413 and 414 remains subject

to balancing under FRE 403 and that those rules do not

violate the Due Process Clause.10 Christopher B. Mueller

80

That rule, the text of which is nearly identical to that of OEC 403, provides:

“The court may exclude relevant evidence if its probative value is sub-

stantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.”

90

See United States v. Jones, 748 F3d 64, 70-71 (1st Cir 2014) (“Rule 414

removes Rule 404(b)’s blanket ban on propensity inferences in child-molestation

cases.”); United States v. Larson, 112 F3d 600, 604 (2d Cir 1997) (FRE 414 per-

mits the admission of evidence that would have been excluded under FRE 404(b));

United States v. Guidry, 456 F3d 493, 501 (5th Cir 2006) (“Rule 413 relaxes the

longstanding bar to propensity evidence restricted by Rule 404(b) and allows

the admission of such evidence in trials that involve charges of sexual miscon-

duct.”); United States v. Seymour, 468 F3d 378, 385 (6th Cir 2006) (FRE 413 and

414 “create an exception to the general ban on propensity evidence contained in

Rule 404(b)”); United States v. Julian, 427 F3d 471, 486 (7th Cir 2005) (“Rule

413 * * * alters the legal landscape with respect to a defendant’s prior crimes in

cases like this one.”); United States v. Crawford, 413 F3d 873, 875 (8th Cir 2005)

(“Assuming the prior offenses are relevant, Rule 413 supersedes Rule 404’s pro-

hibition against character evidence.”); United States v. Sioux, 362 F3d 1241, 1244

(9th Cir 2004) (FRE 413 through 415 supersede Rule 404(b)’s restriction on the

admission of propensity evidence); United States v. McHorse, 179 F3d 889, 896

(10th Cir 1999) (intent of Congress in enacting new rules was to supersede FRE

404(b)).

10

See Johnson v. Elk Lake Sch. Dist., 283 F3d 138, 155 (3d Cir 2002) (find-

ing that Congress intended FRE 403 balancing be applied and noting that other

courts have held that, in absence of FRE 403 balancing, FRE 413 and 414 might

violate due process); United States v. Stamper, 106 Fed Appx 833, 835 (4th Cir

2004) (FRE 403 must be applied to “other acts” evidence; FRE 413 and 414 are

not unconstitutional); Guidry, 456 F3d at 503 (affirming application of FRE

403 to “other acts” evidence admissible under FRE 413); Seymour, 468 F3d at

385 (agreeing with other federal courts that FRE 403 applies); United States

v. Rogers, 587 F3d 816, 822-23 (7th Cir 2009) (FRE 403 applies to “other acts”

evidence under FRE 413 and 414, but analysis may be conducted differently);

United States v. Mound, 149 F3d 799, 800-01 (8th Cir 1998) (“Rule 413, subject

to the constraints of Rule 403, is constitutional.”); United States v. LeMay, 260

F3d 1018, 1026 (9th Cir 2001) (subject to Rule 403 balancing, FRE 414 does not

violate due process); United States v. Enjady, 134 F3d 1427, 1433 (10th Cir 1998)

(applying FRE 403 balancing before admitting evidence proffered under FRE 413

or 414 makes admission of such evidence constitutional).

12 State v. Williams

& Laird C. Kirkpatrick, 2 Federal Evidence § 4:84 (4th ed

2013) (stating that “several courts have commented that

being subject to Rule 403 is crucial to the constitutionality

of Rule 413”). The court’s reasoning is concisely stated in

one of those cases, United States v. LeMay, 260 F3d 1018,

1026 (9th Cir 2001): “As long as the protections of Rule 403

remain in place to ensure that potentially devastating evi-

dence of little probative value will not reach the jury, the

right to a fair trial remains adequately safeguarded.”

The United States Supreme Court used similar rea-

soning in a 1990 case. In Dowling v. United States, 493 US

342, 352-53, 110 S Ct 668, 107 L Ed 2d 708 (1990), the defen-

dant argued that the admission of “other acts” evidence to

prove identity under FRE 404(b) violated his right to due

process because it created a constitutionally unacceptable

risk that the jury would convict him on an improper basis.

The Court disagreed, concluding that “the trial court’s

authority to exclude potentially prejudicial evidence ade-

quately addresses this possibility.” Id. at 353.

That historical background is helpful, but it does

not resolve the question before us: Whether OEC 404(4) is

subject to OEC 404(3) or OEC 403. For that question, we

return to the text of OEC 404(4), and the state’s first argu-

ment, which is that that rule supersedes OEC 404(3). Again,

OEC 404(4) provides:

“In criminal actions, evidence of other crimes, wrongs

or acts by the defendant is admissible if relevant except as

otherwise provided by:

“(a)  [OEC 406 through 41211] and, to the extent

required by the United States Constitution or the Oregon

Constitution, [OEC 403];

“(b)  The rules of evidence relating to privilege and

hearsay;

“(c)  The Oregon Constitution; and

“(d)  The United States Constitution.”

11

OEC 406 through 412 set out rules for the admissibility of evidence regard-

ing habit, subsequent remedial measures, settlement offers, offers to pay medical

expenses, withdrawn statements or pleas, and, in cases involving sex crimes, the

prior sexual history of the victim.

Cite as 357 Or 1 (2015) 13

(Emphasis added.) Thus, by its terms, OEC 404(4)(a) makes

relevant evidence of a defendant’s other acts admissible in

criminal cases, except as otherwise provided by specified

rules of evidence. By contrast, OEC 404(3) provides that

“other acts” evidence “is not admissible to prove the char-

acter of a person in order to show that the person acted in

conformity therewith.” (Emphasis added.)

The state contends that OEC 404(3) is not an

exception to the admissibility of evidence under OEC

404(4) and, in addition, because the two rules conflict,

OEC 404(3) must give way. See Carlson v. Myers, 327 Or

213, 235, 959 P2d 31 (1998) (“Ordinarily, if the legisla-

ture enacts a statutory requirement that conflicts with

another earlier-enacted statutory requirement, and the

conflict is irreconcilable, the earlier statute must yield to

the later statute.”); see also ORS 174.020(2) (“When a gen-

eral and particular provision are inconsistent * * * a par-

ticular intent controls a general intent that is inconsistent

with the particular intent.”); Smith v. Multnomah County

Board of Commissioners, 318 Or 302, 309, 865 P2d 356

(1994) (discussing that statute).

Defendant responds that OEC 404(4) and OEC

404(3) can be read together and do not conflict. Defendant

contends “other acts” evidence is not relevant under

OEC 404(4) unless it is relevant for a permissible pur-

pose and that OEC 404(3) sets out those permissible

purposes.

Considering the text and context of those two

rules, the state has the better argument. First, the legis-

lature explicitly made OEC 404(4) subject to certain spec-

ified rules of evidence; by contrast, the legislature did not

explicitly make OEC 404(4) subject to OEC 404(3). Second,

contrary to defendant’s argument, OEC 404(4) and 404(3)

are in conflict. OEC 404(3) does not provide that “other

acts” evidence is irrelevant; instead, it provides that “other

acts” evidence is inadmissible to prove propensity. Those

concepts are distinct. OEC 401 defines “relevant” evidence

as “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of

the action more probable or less probable than it would be

14 State v. Williams

without the evidence.” Evidence that meets that standard

of relevance nevertheless may be inadmissible for any num-

ber of reasons under other provisions of the evidence code.

Under OEC 404(3), “other acts” evidence that is offered for

the purpose of proving a defendant’s character is inadmissi-

ble because it is unfairly prejudicial, not because it is irrel-

evant. Pinnell, 311 Or at 105-06. We think it doubtful that

the legislature used the word “relevant” in OEC 404(4) to

make “other acts” evidence inadmissible to prove propen-

sity. Instead, it is more likely that the legislature used the

word “relevant” to incorporate the requirements of logical

relevance found in OEC 401.

The legislative history of the enactment of OEC

404(4) supports that understanding. The legislature enacted

OEC 404(4) in 1997 in response to this court’s anticipated

invalidation of Ballot Measure 40 (1996), which, among

other provisions, provided crime victims with “the right

to have all relevant evidence admitted against criminal

defendants.” See Armatta v. Kitzhaber, 327 Or 250, 254, 959

P2d 49 (1998) (citing Measure 40, § 1(f)).12 The legislature

introduced Senate Bill (SB) 936 as a “legislative paraphrase

of selected provisions” of Measure 40 that did not require

amendment of the Oregon Constitution. State v. Fugate,

332 Or 195, 199, 26 P3d 802 (2001). Two sections of SB 936

related to the concern addressed in section 1(f) of Measure

40, which would have permitted “all relevant evidence [to be]

admitted against criminal defendants.” Section 1 of SB 936

prohibited trial courts from suppressing evidence obtained

through statutory (rather than constitutional) violations,13

12

In Armatta, this court held that Measure 40 violated the requirement of

Article XVII, section 1, of the Oregon Constitution that each amendment shall be

voted on separately, and that Measure 40 was therefore invalid. Id. at 252.

13

Section 1 of SB 936 provided:

“A court may not exclude relevant and otherwise admissible evidence in a

criminal action on the grounds that it was obtained in violation of any statu-

tory provision unless exclusion of the evidence is required by:

(1)  The United States Constitution or the Oregon Constitution;

(2)  The rules of evidence governing privileges and the admission of

hearsay; or

(3)  The rights of the press.”

SB 936 (1997). That provision is now codified as ORS 136.432.

Cite as 357 Or 1 (2015) 15

and section 29 of SB 936 amended OEC 404 to add subsec-

tion (4). Opponents of SB 936 understood the bill to have

the effect of eliminating the restrictions imposed by OEC

404(3) in criminal cases, and expressed concerns that that

result could be unconstitutional. See Tape Recording, Senate

Committee on Crime and Corrections, SB 936, March 21,

1997, Tape 43, Side A (statement of Jim Arnesen, OCDLA)

(SB 936 would “allow the introduction of evidence against

the defendant that is not currently allowed * * *[, and] the

only limitation on keeping that evidence out when the state

wants to offer it will be the Federal Constitution and Rule

403 with respect to prejudice.”). From the text, context, and

legislative history of OEC 404(4), we conclude that the leg-

islature intended OEC 404(4) to supersede OEC 404(3) in

criminal cases, except, of course, as otherwise provided by

the state or federal constitutions.14

We reach a different conclusion with respect to the

relationship between OEC 404(4) and OEC 403, however. As

noted, the Oregon Legislative Assembly adopted OEC 404(4)

in 1997, just three years after Congress had adopted FRE

413 and 414. At that time, questions about whether evidence

proffered under FRE 413 and 414 was subject to balancing

under FRE 403 and whether those rules violated the Due

Process Clause were pending in the lower federal courts.

The Oregon Legislative Assembly recognized the unsettled

state of the law by expressly making OEC 404(4) subject

to OEC 403 “to the extent required by the United States

14

In reaching that conclusion, we reject defendant’s argument that this court

previously has decided that OEC 404(4) does not supersede OEC 404(3). In State

v. Lotches, 331 Or 455, 494 n 20, 17 P3d 1045 (2000), cert den, 534 US 833 (2001),

the court stated in a footnote that “OEC 404(4) expands the admissibility of cer-

tain other-crimes evidence in criminal cases” but that, under the circumstances

of the case, the court “need not address the potential applicability of OEC 404(4).”

In Shaw, 338 Or at 613-14, the court declined to apply OEC 404(4) because the

defendant in that case had committed the alleged crimes prior to the enactment

of OEC 404(4). In State v. Moore/Coen, 349 Or 371, 389, 245 P3d 101 (2010),

the court upheld OEC 404(4) against a defendant’s constitutional challenge. The

court held that “under OEC 404(4), traditional standards of relevancy are pre-

served, and in all events, no evidence may be admitted that would violate state

and federal constitutional standards.” Id. The court in that case did not address

the continued applicability of OEC 404(3). In State v. Leistiko, 352 Or 172, 180

n 6, 282 P3d 857 (2012), the court noted that the state had “not argue[d] that pro-

pensity evidence is relevant and thus admissible under OEC 404(4),” and there-

fore expressed no opinion as to that rule’s application.

16 State v. Williams

Constitution.”15 In so providing, the legislature deferred to

the courts to determine whether the federal constitution

requires the application of OEC 403. Because the United

States Supreme Court is the final arbiter of federal consti-

tutional requirements, we must endeavor to determine how

that Court would decide the question that the parties pres-

ent: Whether the Due Process Clause requires the applica-

tion of OEC 403.

To date, the United States Supreme Court has not

addressed that issue. The Court has explicitly reserved the

question whether an evidentiary rule would violate due

15

OEC 404(4) also makes the admission of “other acts” evidence subject to

the Oregon Constitution. In this case, defendant does not argue that the Oregon

Constitution precludes the admission of the underwear evidence. However, we

note that two state supreme courts have held that the admission of propensity

evidence would violate their states’ constitutions. In State v. Cox, 781 NW2d 757

(Iowa 2010), the Iowa Supreme Court held that Article I, section 9, of the Iowa

Constitution, which provides that “no person shall be deprived of life, liberty, or

property without due process of law,” requires that “other acts” evidence offered

for propensity purposes be excluded:

“Based on Iowa’s history and the legal reasoning for prohibiting admis-

sion of propensity evidence out of fundamental conceptions of fairness, * * *

the Iowa Constitution prohibits admission of prior bad acts evidence based

solely on general propensity. Such evidence may, however, be admitted as

proof for any legitimate issues for which prior bad acts are relevant and

necessary.”

Id. at 767-68. The court explained that Iowa courts

“ground the rejection of propensity evidence on ‘fundamental’ concerns of

fairness and the presumption of innocence. The policy against admissibility

of general propensity evidence stems from a fundamental sense that no one

should be convicted of a crime based on his or her previous misdeeds. A con-

comitant of the presumption of innocence is that a defendant must be tried

for what he did, not for who he is. This concept is fundamental to American

jurisprudence.”

Id. (internal quotations and citations omitted).

The Supreme Court of Missouri relied on Article I, sections 17 and 18(a), of

the Missouri Constitution, which provide that “no person shall be prosecuted

criminally for felony or misdemeanor otherwise than by indictment or informa-

tion” and that “in criminal prosecutions the accused shall have the right * * *

to demand the nature and cause of the accusation.” State v. Ellison, 239 SW3d

603, 606 (Mo 2007). The court explained that, based on those provisions, it “has

long maintained a general prohibition against the admission of evidence of prior

crimes” and held that “[e]vidence of prior criminal acts is never admissible for the

purpose of demonstrating the defendant’s propensity to commit the crime with

which he is presently charged,” but may be admissible for other purposes, includ-

ing that of establishing motive, intent, the absence of mistake or accident, a com-

mon scheme or plan, or the identity of the perpetrator. Id. at 606-07 (emphasis in

original).

Cite as 357 Or 1 (2015) 17

process if it permitted the use of “prior crimes” evidence to

prove a defendant’s propensity to commit a charged crime.

Estelle v. McGuire, 502 US 62, 75 n 5, 112 S Ct 475, 116 L Ed

2d 385 (1991). The Court’s decision in Dowling, 493 US at

353, tells us that an evidentiary rule—such as OEC 403—

that requires a trial court to determine whether the poten-

tial prejudice of “other acts” evidence outweighs its proba-

tive value is sufficient to safeguard a litigant’s due process

rights. However, that decision does not tell us whether the

Due Process Clause requires the application of such a rule.

Said another way, just because due process is served by a

particular evidentiary rule does not mean, at least neces-

sarily, that due process is violated if that rule is not applica-

ble. Thus, we must do our best to determine how the United

States Supreme Court would decide that question.

We know that “historical practice” is the primary

guide for determining whether an evidentiary rule is so

fundamental as to be embodied in the federal constitution.

See Montana v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013,

135 L Ed 2d 361 (1996) (“Our primary guide in determin-

ing whether the principle in question is fundamental is, of

course, historical practice.”). In LeMay, the Ninth Circuit

considered the “historical practice” prohibiting the use of

“other acts” to prove the charged crime and concluded that

“the general ban on propensity evidence has the requisite

historical pedigree to qualify for constitutional status.” 260

F3d at 1025. If this were a case in which defendant had

been charged with crimes other than child sexual abuse, we

might be persuaded that due process incorporates that his-

torical practice and therefore not only requires the applica-

tion of OEC 403, but also precludes the admission of “other

acts” evidence to prove propensity. However, in this case,

defendant is charged child sexual abuse, and the histori-

cal practice with respect to such charges is not as clear.16

16

In LeMay, the court observed that, “[i]n many American jurisdictions, evi-

dence of a defendant’s prior acts of sexual misconduct is commonly admitted in

prosecutions for offenses such as rape, incest, adultery, and child molestation”

by “stretching traditional 404(b) exceptions to the ban on character evidence or

by resorting to the so-called ‘lustful disposition’ exception.” Id. Accordingly, the

court also concluded that “ ‘the history of evidentiary rules regarding a criminal

defendant’s sexual propensities is ambiguous at best, particularly with regard to

sexual abuse of children.’ ” Id. at 1026 (quoting United States v. Castillo, 140 F3d

874, 881 (10th Cir 1998)).

18 State v. Williams

We therefore think it prudent, as did the Ninth Circuit in

LeMay, to turn our attention to the principles that animate

the Due Process Clause.

In that regard, the Supreme Court has explained

that the admission of evidence that is so extremely unfair

that it violates “fundamental conceptions of justice” violates

the Due Process Clause. United States v. Lovasco, 431 US

783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977). The Supreme

Court also has explained that “[t]he term ‘unfair prejudice,’

as to a criminal defendant, speaks to the capacity of some

concededly relevant evidence to lure the factfinder into

declaring guilt on a ground different from proof specific to

the offense charged.” Old Chief v. United States, 519 US 172,

180, 117 S Ct 644, 136 L Ed 2d 574 (1997). In Old Chief, the

Court recognized that such improper grounds include “gen-

eralizing a defendant’s earlier bad act into bad character

and taking that as raising the odds that he did the later bad

act now charged.” Id. Although the Court was not deciding

a constitutional issue in Old Chief, its discussion demon-

strates how the Court characterizes the prejudice posed by

“other acts” evidence. As the Court recognized in Dowling,

493 US at 352, the violation of due process that may result

from such unfair prejudice is obviated by the application of

a rule of evidence that permits a court to consider the risk of

prejudice and exclude the evidence when appropriate.

In the absence of controlling Supreme Court prec-

edent, we must determine, as best we can, how that Court

would rule if presented with the question before us. We con-

clude that, in a prosecution for child sexual abuse, the Court

would hold that subjecting proffered “other acts” evidence

to OEC 403 balancing is a due process requirement. In

such prosecutions, the historical record may not definitively

establish that it is always improper to admit “other acts”

evidence to prove propensity, but it at least demonstrates

a historical concern for the prejudice that such evidence

poses and the importance that balancing plays in protecting

against the harm that may result from its admission. In our

view, the only way that a court can ensure that the admis-

sion of “other acts” evidence is not unfairly prejudicial and

a violation of “fundamental concepts of justice” is to conduct

OEC 403 balancing. We therefore hold that that balancing

Cite as 357 Or 1 (2015) 19

is required by the Due Process Clause. Even if due process

does not categorically prohibit the admission of “other acts”

evidence to prove propensity in prosecutions for child sex-

ual abuse, it at least requires that, on request, trial courts

determine whether the probative value of the evidence is

outweighed by the risk of unfair prejudice.17

Consequently, the admission of evidence under

OEC 404(4) remains subject to balancing under OEC 403.18

When a party objects, under OEC 403, to “other acts” evi-

dence offered under OEC 404(4), a trial court must engage

in the balancing anticipated by OEC 403. At one end of the

spectrum, “other acts” evidence that is offered for nonpro-

pensity purposes—i.e., to prove motive, intent, identity, or

lack of mistake or accident—generally will be admissible as

long as the particular facts of the case do not demonstrate a

risk of unfair prejudice that outweighs the probative value

of the evidence. Shaw, 338 Or at 614-15. At the other end

17

Given the result that we reach in this case—that the trial court correctly

admitted the underwear evidence under “traditional” or “subconstitutional”

balancing—we need not further explore the parties’ arguments about whether

“due process” balancing differs from “traditional” or “subconstitutional” balanc-

ing. Evidence that is admissible under “traditional” or “subconstitutional” bal-

ancing also would be admissible under any distinct “due process” balancing test.

We also note that Moore/Coen, 349 Or at 371, does not make a distinction

between “due process” and other balancing. In Moore/Coen, the court recog-

nized that, in Shaw, 338 Or at 613-14, this court had held that OEC 404(4) was

a “change in the law that favors only the prosecution by making the conviction of

a defendant more likely.” Id. at 389. In Moore/Coen, the court addressed the con-

stitutionality of OEC 404(4), both facially and as applied, and held that, “under

OEC 404(4), traditional standards of relevancy are preserved.” Id. The court did

not make a distinction between “due-process,” and “traditional,” or “subconstitu-

tional,” balancing, and we leave the significance of those distinctions, if any, to

another day.

18

Our understanding of due process requirements is consistent with expec-

tations that legislators may have had when they enacted SB 936, the bill that con-

tained the proposition that became OEC 404(4). As noted, opponents of the bill

expressed concerns that it could be unconstitutional. Assistant Attorney General

Gardner, who testified on behalf of one of the sponsors of the bill, responded that

constitutional law

“require[s] that a trial judge balance the probative evidence versus the prej-

udicial impact before the judge constitutionally can admit the evidence in a

case. * * * What SB 936 does, it puts into statute the fact that we are still going

to have a balancing test, because that’s what [OEC 403] presently requires.”

Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law,

SB 936, April 17, 1997, Tape 89, Side A (statement of Mark Gardner, Assistant

Attorney General).

20 State v. Williams

of the spectrum, as the state recognizes, when “other acts”

evidence “goes only to character and there are no permissi-

ble inferences the jury may draw from it,” it is more likely

that the evidence will be excluded. Such evidence generally

will have little or no cognizable probative value, and the risk

that the jury may conclude improperly that the defendant

had acted in accordance with past acts on the occasion of the

charged crime will be substantial

OEC 404(4) nevertheless effects a significant change

in the law. Before the legislature enacted OEC 404(4), “other

acts” evidence offered to prove a defendant’s character and

propensity to act accordingly was categorically inadmissible

under OEC 404(3). That is no longer the rule. Now, in a

prosecution for child sexual abuse, the admission of “other

acts” evidence to prove character and propensity under OEC

404(4) depends on whether the risk of unfair prejudice out-

weighs the probative value of the evidence under OEC 403.19

That determination must be made on a case-by-case basis.

See, e.g., LeMay, 260 F3d at 1028 (setting out list of non-

exclusive factors that trial courts may consider in weigh-

ing the risk of prejudice presented by “other acts” evidence

offered under FRE 413 and 414).

In this case, the trial court considered the admis-

sibility of the underwear evidence under both OEC 401 and

403. That mode of analysis was correct under OEC 404(4).

As explained, OEC 404(4) makes “other acts” evidence

admissible if it is relevant under OEC 401 and admissible

under OEC 403.

At trial, the state argued that the disputed evi-

dence was both relevant and admissible to show that defen-

dant had touched the victim with a sexual purpose, and the

trial court admitted the evidence. Defendant appealed, and

the Court of Appeals decided that the trial court had erred

because the underwear evidence was not logically relevant

under OEC 401. 258 Or App at 112-13. The court opined that

OEC 401 requires courts to determine whether evidence is

“logically relevant to a contested issue” (emphasis added) and

that defendant’s intent was not truly at issue in the case. Id.

19

We need not, and do not, decide whether OEC 404(4) may be constitution-

ally applied in other types of prosecutions.

Cite as 357 Or 1 (2015) 21

at 112. That was so, the court reasoned, because defendant

had not argued at trial that, if he had touched the victim

as alleged, he did so without criminal intent. Id. at 113-14.

Further, the court explained, if defendant had touched the

victim as alleged, the nature of his acts strongly indicated

that he had done so with a sexual purpose. Id. at 114.

On review in this court, the state contends that

the Court of Appeals stated the relevance requirement of

OEC 401 too strictly, and we agree. OEC 401 makes prof-

fered evidence admissible only if it has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” In this case, to prove

that defendant committed first-degree sexual abuse, ORS

163.427, the state was required to prove that defendant had

subjected the victim, a person under 14 years of age, to “sex-

ual contact.”20 “Sexual contact” is “any touching of the sexual

or other intimate parts of a person or causing such person to

touch the sexual or other intimate parts of the actor for the

purpose of arousing or gratifying the sexual desire of either

party.” ORS 163.305(6). Accordingly, to prove that element

of the charged crimes, the state was required to prove that

defendant had touched the victim’s genital area or caused

her to touch his genital area with a sexual purpose. Thus,

any evidence having a tendency to make it more probable

that defendant had a sexual purpose when he committed

the charged acts is logically relevant under OEC 401.

In State v. Sparks, 336 Or 298, 308, 83 P3d 304

(2004), the court held that the defendant’s proposed stipu-

lation to an element of the crime “did not have the effect

of making otherwise relevant evidence irrelevant,” but pro-

vided “an alternate form of proof.” The court cited Laird C.

20

ORS 163.427 provides, in part:

“(1)  A person commits the crime of sexual abuse in the first degree when

that person:

“(a)  Subjects another person to sexual contact and:

“(A)  The victim is less than 14 years of age; [or]

“* * * * *

“(b)  Intentionally causes a person under 18 years of age to touch or con-

tact the mouth, anus or sex organs of an animal for the purpose of arousing

or gratifying the sexual desire of a person.”

22 State v. Williams

Kirkpatrick Oregon Evidence § 401.02, Art IV-4 (4th ed 2002)

(quoting 1981 Conference Committee to OEC 401) for the

proposition that “[t]he fact to which the evidence is directed

need not be in dispute.” Sparks, 336 Or at 308. Thus, under

Sparks, even though defendant in this case failed to argue

explicitly that he lacked a sexual purpose, and even if the

acts that defendant was charged with committing suggest

that he acted with such a purpose, the underwear evidence

is logically relevant as long as it had a tendency to increase

the probability that defendant committed the alleged touch-

ing to arouse or gratify a sexual desire.21

We turn to that question. The state argues that

the underwear evidence meets that test of logical relevance

because a jury reasonably could infer that defendant’s pos-

session of the underwear indicates that defendant has “a

sexual interest in little girls” and that defendant had acted

from that interest when he touched the victim.

At trial, defendant argued that the underwear that

was found in his residence likely had been left behind by a

friend with two small children when she and the children

spent the night. Defendant also disputed the state’s argu-

ment that the underwear had an inherently “sexual mean-

ing” and argued that the state’s submission of the under-

wear “suggest[ed] an inference based on very misleading

information.” On review, however, defendant does not explic-

itly press those arguments or contend that a jury could not

infer from the presence of the children’s underwear that

defendant had a sexual interest in children. Instead, defen-

dant argues that there is no difference between asserting

that defendant had a “sexual interest in little girls” and

21

As explained, the fact that such evidence is logically relevant under OEC

401 does not make it admissible under OEC 403. In conducting the balancing

inquiry under OEC 403, a trial court may consider whether other evidence that

does not carry the same risk of unfair prejudice is available to prove an element

of the charged crime. For instance, in Old Chief, 519 US at 174, the United States

Supreme Court held that a trial court had abused its discretion in rejecting the

defendant’s stipulation to an element of the charged crime (in that case, a prior

conviction), when the stipulation met all the government’s requirements for prov-

ing that element and the evidence proffered by the government “raise[d] the risk

of a verdict tainted by improper considerations.” The Court directed trial courts

to weigh “whether the danger of undue prejudice outweighs the probative value

of the evidence in view of the availability of other means of proof and other facts

appropriate for making decisions of this kind.” Id. at 184.

Cite as 357 Or 1 (2015) 23

asserting that he is a pedophile. No matter how the argu-

ment is phrased, defendant insists, the state’s purpose was

to suggest that his character is such that he has an interest

in sexually abusing children and that he acted accordingly

on the charged occasions.

In this case, there is a slim but distinct difference

between using the underwear evidence to establish defen-

dant’s character and propensity to act accordingly, and offer-

ing that evidence to establish defendant’s sexual purpose.

First, in this case, defendant’s sexual purpose is an element

of the charged crimes. The state did not offer the evidence

to establish that defendant committed the charged acts;

it offered the evidence to prove an element of the charged

crimes—defendant’s sexual purpose. Second, the state was

required to prove that defendant had acted with a sexual

desire that was aroused or gratified by contact with children.

Because most adults do not have such a desire, the state was

entitled to prove that defendant is an adult who does. The

fact that defendant has a sexual interest in children would

not, alone, establish that defendant acted on that interest in

the charged circumstances, but it is a fact that is logically

relevant to that issue.

If the jury inferred from the underwear evidence

that defendant had a sexual interest in children generally,

then the jury could take defendant’s interest into consid-

eration in deciding whether defendant had acted on that

interest and with that purpose on the charged occasion.

Defendant is correct that, if the jury found that defendant

had committed the charged acts, those acts themselves are

additional, and perhaps more persuasive, evidence of defen-

dant’s sexual purpose. However, as noted, that stronger

evidence does not make the underwear evidence logically

irrelevant; the evidence meets the minimal requirements of

OEC 401.

At trial, after determining that the underwear evi-

dence was relevant under OEC 401, the trial court conducted

the balancing required by OEC 403 and concluded that the

evidence was admissible. Defendant does not contend that

the trial court erred in its OEC 403 analysis, and we there-

fore do not consider that issue on review.

24 State v. Williams

In summary, we conclude that OEC 404(4) super-

sedes OEC 404(3) in a criminal case except to the extent

required by the state or federal constitution. In a prosecu-

tion of child sexual abuse, the federal constitution requires

that a trial court determine whether the risk of unfair prej-

udice posed by the evidence outweighs its probative value

under OEC 403. In this case, the trial court did not err in

admitting the underwear evidence.

As noted, because it concluded that the trial court

had erred in admitting the underwear evidence, the Court of

Appeals reversed the judgment of conviction and remanded

for a new trial. Williams, 258 Or App at 117. The Court of

Appeals therefore did not address three additional assign-

ments of error that defendant had raised on appeal. See id.

We reverse the decision of the Court of Appeals and remand

the case to that court for consideration of those remaining

assignments of error.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for consid-

eration of defendant’s remaining assignments of error.