State v. Baughman

386 April 27, 2017 No. 24

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

RUSSELL ALLEN BAUGHMAN,

Respondent on Review.

(CC 111306; CA A152531; SC S064086)

On review from the Court of Appeals.*

Argued and submitted November 14, 2016.

Doug M. Petrina, Assistant Attorney General, Salem,

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

Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem,

argued the cause for respondent on review. Eric Johansen,

Deputy Public Defender, filed the brief. Also on the brief was

Ernest G. Lannet, Chief Defender, Office of Public Defense

Services.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, and Nakamoto, Justices, and Baldwin,

Senior Justice, Justice pro tempore.**

WALTERS, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings, con-

sistently with this opinion.

______________

**  On appeal from a judgment of the Clatsop County Circuit Court, Cindee

S. Matyas, Judge. 276 Or App 754, 369 P3d 423 (2016).

**  Flynn, J., did not participate in the consideration or decision of this case.

Cite as 361 Or 386 (2017) 387

Case Summary: Defendant was convicted of child sexual abuse. Defendant

appealed to the Court of Appeals and argued that the trial court had erred in

admitting evidence of uncharged acts of abuse by defendant of the same victim

and an additional victim. Defendant contended that OEC 404(4) requires “tra-

ditional” OEC 403 balancing, not a narrower, “due process” balancing, and that

the trial court had not correctly conducted that balancing with respect to the

challenged other acts evidence. The Court of Appeals agreed with defendant and

reversed defendant’s convictions and remanded the case for a new trial. The state

petitioned for review, arguing that OEC 404(4) requires only due process bal-

ancing to determine whether the challenged evidence rendered the trial funda-

mentally unfair. In a unanimous opinion written by Justice Martha L. Walters,

the Supreme Court affirmed the decision of the Court of Appeals. The Court

held that, in a criminal action, when the state proffers evidence of uncharged

acts, either to prove a defendant’s propensity to commit charged crimes under

OEC 404(4), or for a nonpropensity purpose under OEC 404(3), and a defendant

objects to the admission of that evidence, the trial court must conduct balancing

under OEC 403, according to its terms, to determine whether the probative value

of the challenged evidence is substantially outweighed by the danger of unfair

prejudice. The Court concluded that, in this case, the trial court erred in finding

that defendant’s abuse of the other victim was relevant for three nonpropensity

purposes. The evidence was not relevant for any of the three purposes that the

trial court identified, and the trial court therefore erred in assigning the evi-

dence weight for those purposes in its OEC 403 balancing analysis. The Court

remanded the case to the trial court to give that court the opportunity to consider

new arguments from the parties about the purposes for which the other acts

evidence is relevant and to correctly conduct the required balancing. The Court

instructed the trial court to determine the nature of the proceedings that are

necessary or appropriate on remand.

The decision of the Court of Appeals is affirmed. The judgment of the circuit

court is reversed, and the case is remanded to the circuit court for further pro-

ceedings, consistently with this opinion.

388 State v. Baughman

WALTERS, J.

In this case we explain that, in a criminal action,

when the state proffers evidence of uncharged acts, either

to prove a defendant’s propensity to commit charged crimes

under OEC 404(4),1 or for a nonpropensity purpose under

OEC 404(3),2 and a defendant objects to the admission of

that evidence, the trial court must conduct balancing under

OEC 403,3 according to its terms, to determine whether the

probative value of the challenged evidence is substantially

outweighed by the danger of unfair prejudice. We affirm the

decision of the Court of Appeals, State v. Baughman, 276 Or

App 754, 369 P3d 423 (2016), reverse the trial court’s judg-

ment of conviction, and remand this case to the trial court

for further proceedings.

I. BACKGROUND

Defendant was charged with 12 counts of child sex-

ual abuse. The state alleged that defendant had abused the

victim, B, in Clatsop County.

Before trial, the state filed a motion to permit it to

introduce evidence that defendant also had sexually abused

another child, A. The state argued that that evidence was

relevant for a number of nonpropensity purposes under

1

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.”

2

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.”

3

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.”

Cite as 361 Or 386 (2017) 389

OEC 404(3)—to establish defendant’s intent, motive, com-

mon plan or scheme, and the absence of mistake or accident.

Defendant countered that, because his defense was not mis-

taken identity or lack of intent, but, instead, that the charged

acts of abuse had not occurred, the proffered evidence was

not relevant for a nonpropensity purpose. Further, defen-

dant argued, even if the evidence was minimally relevant,

its probative value was substantially outweighed by the

danger of unfair prejudice and it was therefore inadmissible

under OEC 403.

Both A and B testified at the hearing on the state’s

motion. B testified that, when she was about five years old,

defendant had entered into a relationship with her mother

and moved into their family home in Umatilla County.

Defendant began to sexually abuse B when she was seven

years old and still living in Umatilla County. The abuse

began with sexual touching, and, by the time B was 12 and

living in Clatsop County, defendant had begun to abuse her

“over and over again[,] repeatedly.” B testified that defen-

dant had touched her sexually, forced her to touch him sex-

ually, and, in Clatsop County, repeatedly had forced her to

have intercourse with him.

A, the second child, testified that defendant’s abuse

of her also had occurred while defendant was in a relation-

ship with her mother and living with them in their fam-

ily home. A was in fifth grade when the abuse began. The

abuse, including the sexual touching of both defendant’s and

A’s sexual or intimate parts, had continued until she was 13

or 14 years old.

After the hearing, the trial court issued a letter

opinion. The court agreed with the state that defendant’s

abuse of A was relevant to prove defendant’s “identity,

intent and to bolster the credibility of the victim,” and was

admissible under OEC 404(3). With respect to the issue of

intent, the court explained that it had conducted an analy-

sis under State v. Johns, 301 Or 535, 555-56, 725 P2d 312

(1986), and determined, among other things, that defen-

dant’s acts against A were similar to his acts against B, and

that the evidence about A was being offered for a nonpropen-

sity purpose, was not “overly inflammatory,” and could be

390 State v. Baughman

presented without undue confusion, distraction, or unrea-

sonable delay.

Later, but also before trial, the state filed a writ-

ten motion to permit it to introduce evidence of defendant’s

uncharged acts of sexual abuse against B in Umatilla

County. The state asserted that that evidence would “allow

the jury to see a clear, cohesive picture of how defendant

perpetuated the abuse for which he ha[d] been indicted

in Clatsop County.” That evidence, the state represented,

included the acts of abuse to which B had testified at the

prior hearing and also the fact that defendant had told B

that, if she ever told anyone about the abuse, he would hurt

her, and that he had been physically abusive to her.

Defendant opposed the state’s motion and asserted

that it was untimely and required a hearing. The trial court

responded that it had assumed, from the prior hearing, that

the evidence of the uncharged abuse of B would be admitted

to explain to the jury “the path leading up to” the charged

crimes, but that the evidence also was admissible for the

same reasons that the court had articulated in permitting

the evidence of defendant’s abuse of A.

At trial, both A and B testified consistently with

their pretrial testimony. At the close of evidence, the court

instructed the jury that it could consider the uncharged

abuse of A only as evidence of defendant’s intent in abus-

ing B. The court did not give the jury a limiting instruc-

tion regarding the purposes for which it could consider the

uncharged abuse of B.

The jury convicted defendant of eight of the 12

charges. Defendant appealed to the Court of Appeals and

argued that the trial court had erred in admitting the evi-

dence of the uncharged abuse of both A and B as nonpropen-

sity evidence under OEC 404(3). While the case was pend-

ing before that court, this court decided State v. Williams,

357 Or 1, 346 P3d 455 (2015).

In Williams, this court considered the interplay

between three evidentiary rules: OEC 404(3), OEC 404(4),

and OEC 403. OEC 404(3) makes other acts evidence

Cite as 361 Or 386 (2017) 391

inadmissible to prove a defendant’s character or propensity

to commit the charged crime. It 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.”

OEC 404(3).

OEC 404(4) was enacted after OEC 404(3). It makes

relevant other acts evidence admissible in criminal actions,

subject to specified exceptions. It 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.”

OEC 404(4).

In Williams, the court recognized the conflict

between those two rules and held that the “legislature

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

cases,” and to permit the admission of other acts evidence to

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

sexual abuse. 357 Or at 15. The court also concluded, how-

ever, that OEC 404(4)(a) made the admission of such evi-

dence subject to specified evidentiary rules, including OEC

403. Id. at 19. OEC 403 permits a court to exclude relevant

evidence if its probative value is substantially outweighed

by the danger of unfair prejudice. It 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

392 State v. Baughman

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

sentation of cumulative evidence.”

OEC 403. In Williams, the court reasoned that OEC 404(4)(a)

made OEC 403 applicable “to the extent required by the

United States Constitution,” and concluded that, “in a pros-

ecution for child sexual abuse, the [United States Supreme]

Court would hold that subjecting proffered ‘other acts’ evi-

dence to OEC 403 balancing is a due process requirement.”

Id. at 15-18. That balancing, the court explained, was bal-

ancing to “determine whether the probative value of the

evidence is outweighed by the risk of unfair prejudice.” Id.

at 19. The court expressly reserved, however, the question

whether the required balancing was “traditional,” or “sub-

constitutional,” OEC 403 balancing, or some other, more

limited, “due process” balancing. Id. at 19 n 17.4

In light of this court’s decision in Williams, the par-

ties in this case filed supplemental briefs in the Court of

Appeals. Considering OEC 404(4) to be the operative evi-

dentiary rule, the parties squared off about whether the

balancing that OEC 404(4) requires is “traditional” balanc-

ing under OEC 403, or “due process” balancing, requiring

the exclusion of other acts evidence only when its admission

would render the trial fundamentally unfair and thereby

violate due process.

The Court of Appeals agreed with defendant that

OEC 404(4) requires “traditional” OEC 403 balancing and

then took up the legal issue that defendant had raised in

his initial opening brief about whether the trial court had

correctly conducted that balancing. Baughman, 276 Or

App at 764-65. As noted, the trial court had considered the

uncharged abuse of A to be relevant for three nonpropen-

sity purposes and had carried out the required balancing

with those purposes in mind. The Court of Appeals deter-

mined that the challenged evidence was relevant for only

one of those purposes—to prove defendant’s intent under

the Johns analysis—but not for the other two purposes—to

4

The court did not have to decide that question in Williams, because it deter-

mined that the trial court had correctly admitted the evidence. 357 Or at 23.

Applying a more circumscribed, “due process,” balancing would not have made a

difference in the result.

Cite as 361 Or 386 (2017) 393

prove identity and to bolster the victim’s credibility.5 Id.

at 771. The court reasoned that evidence of defendant’s

uncharged acts was not sufficiently novel or unique to be

relevant to identity, id. at 768, and that “the purpose of bol-

stering the victim’s credibility is merely propensity by a dif-

ferent name,” id. at 772. Therefore, the court explained, the

trial court had not correctly considered the “quantum of pro-

bative value of the evidence” when it conducted the required

balancing under OEC 403 and had erred in admitting the

other acts evidence. Id. (internal quotation marks omitted).

The Court of Appeals reversed defendant’s convictions and

remanded the case for a new trial. Id.

The state petitioned for review in this court, renew-

ing its argument that the Court of Appeals was required

to review the trial court’s admission of the challenged evi-

dence, not to determine whether the trial court had correctly

engaged in “traditional” balancing under OEC 403, but,

instead, to determine whether the admission of that evi-

dence rendered the trial fundamentally unfair and thereby

violated due process. The state also asserted that, even if

traditional balancing was what was required, we should

remand for such balancing, not necessarily for a new trial.

We allowed the state’s petition.

II. ANALYSIS

In this court, the state raises an issue that we

expressly reserved in Williams—the nature of the balanc-

ing that must be conducted under OEC 403. To understand

the state’s argument, a more complete review of this court’s

opinion in Williams is necessary.

In Williams, the court began, as noted, by consider-

ing the relationship between OEC 404(3) and OEC 404(4).

357 Or at 12. The court recognized the conflict in the two

subsections and concluded that, in criminal actions, OEC

404(4) supersedes OEC 404(3). Id. at 15. The court then

considered the relationship between OEC 404(4) and OEC

403 and concluded that OEC 404(4) makes the admission of

5

The Court of Appeals did not discuss the other nonpropensity purpose on

which the trial court had relied for admission of the uncharged abuse of B—to

provide context for the evidence of the charged abuse of B.

394 State v. Baughman

other acts evidence subject to OEC 403 because the United

State Constitution requires the application of that rule. Id.

at 18-19. The court engaged in the reasoning that follows.

The common law precluded or limited the admis-

sion of other acts evidence to establish a defendant’s char-

acter and propensity to act accordingly. The general rule,

as this court stated in State v. Baker, 23 Or 441, 442-43, 32

P 161 (1893), was that “no enlightened system of jurispru-

dence” 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.”

When state and federal jurisdictions adopted rules

to govern the admission of such evidence, those rules “often

reflected that common-law tradition and precluded the

admission of ‘other acts’ to prove propensity.” Williams, 357

Or at 9. However, when Congress adopted FRE 413 and FRE

414 in 1994, that changed “as to cases in which a defendant

is charged with sexual assault or child molestation.” Id. at

10. The federal rules of evidence now permit the admission

of relevant other acts evidence in such cases, and federal

courts were asked to interpret those rules and to decide,

among other things, whether they are subject to FRE 403,

a corollary to OEC 403, and whether they comport with due

process. Id. at 10-11.

While those questions were pending in the lower

federal courts, the Oregon Legislative Assembly adopted

OEC 404(4), which, like FRE 413 and FRE 414, permits

the admission of other acts evidence. Id. at 15. The Oregon

Legislative Assembly recognized the unsettled state of fed-

eral law by expressly making OEC 404(4) subject to OEC 403

“to the extent required by the United States Constitution.”

Cite as 361 Or 386 (2017) 395

OEC 404(4)(a); Williams, 357 Or at 15-16. The legislature

“deferred to the courts to determine whether the federal

constitution requires the application of OEC 403,” and that

was the question that was before the court in Williams:

“Because the United States Supreme Court is the final

arbiter of federal constitutional requirements, we must

endeavor to determine how that Court would decide the

question that the parties present: Whether the Due Process

Clause requires the application of OEC 403.”

Id. at 16.

To answer that question, the court looked first to

federal court decisions that had addressed the constitution-

ality of FRE 413 and FRE 414. The courts that had con-

sidered the matter had held that evidence admitted under

those rules remained subject to balancing under FRE 403

and that, as a result, those rules did not violate the Due

Process Clause. Id. at 11. In U.S. v. LeMay, 260 F3d 1018,

1026 (9th Cir 2001), the court explained that,

“[a]s long as the protections of Rule 403 remain in place to

ensure that potentially devastating evidence of little pro-

bative value will not reach the jury, the right to a fair trial

remains adequately safeguarded.”

That reasoning is consistent with the reasoning of

the United States Supreme Court in Dowling v. United States,

493 US 342, 352-54, 110 S Ct 668, 107 L Ed 2d 708 (1990).

In Dowling, the defendant had 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 consti-

tutionally unacceptable risk that the jury would convict him

on an improper basis. Id. at 352-53. The Court disagreed,

concluding that “the trial court’s authority to exclude poten-

tially prejudicial evidence adequately addresses this possi-

bility.” Id. at 353.

The federal court decisions did not, however, answer

the question before the court in Williams. They told the court

only that an evidentiary rule that the federal courts deemed

applicable and that required trial courts to balance the pro-

bative value and prejudicial effect of other acts evidence was

sufficient to satisfy the Due Process Clause; they did not tell

the court that such a rule was necessary.

396 State v. Baughman

Consequently, the court turned next to “historical

practice” to determine whether OEC 403 is an evidentiary

rule that is so fundamental that it is required by due pro-

cess.6 The court observed that, in “LeMay, [260 F3d at 1025,]

the Ninth Circuit considered the ‘historical practice’ prohib-

iting 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.’ ” Williams, 357 Or at 17. The court also thought it

prudent, however, as the Ninth Circuit had in LeMay, to con-

sider the principles that animate the Due Process Clause.

Outlining those principles, the court said that

“the Supreme Court has explained that the admission of

evidence that is so extremely unfair that it violates ‘fun-

damental 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 conced-

edly 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 rec-

ognized that such improper grounds include ‘generalizing

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 consti-

tutional issue in Old Chief, its discussion demonstrates 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 preju-

dice and exclude the evidence when appropriate.”

Id. at 18. Accordingly, the court concluded that, “in a pros-

ecution for child sexual abuse, the [Supreme] Court would

hold that subjecting proffered ‘other acts’ evidence to OEC

403 balancing is a due process requirement” and, therefore,

that the federal constitution required that, on request, trial

6

See Montana v. Egelhoff, 518 US 37, 43, 116 S Ct 2013, 135 L Ed 2d 361

(1996) (“Our primary guide in determining whether the principle in question is

fundamental is, of course, historical practice.”).

Cite as 361 Or 386 (2017) 397

courts conduct OEC 403 balancing. Id. at 18-19. The court

summarized its reasoning as follows:

“In such prosecutions, the historical record may not defin-

itively establish that it is always improper to admit ‘other

acts’ evidence to prove propensity, but it at least demon-

strates a historical concern for the prejudice that such evi-

dence poses and the importance that balancing plays in

protecting against the harm that may result from its admis-

sion. In our view, the only way that a court can ensure that

the admission of ‘other acts’ evidence is not unfairly preju-

dicial and a violation of ‘fundamental concepts of justice’ is

to conduct OEC 403 balancing. We therefore hold that that

balancing 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 sexual 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.”

Id.

In reaching that conclusion, the court set aside for

another day the question that the state raises here; viz.,

whether the balancing under OEC 403 is “traditional” or

“subconstitutional” balancing, or, as the state posits, “due

process” balancing that precludes the admission of propen-

sity evidence under OEC 404(4) only if its admission would

render the trial fundamentally unfair as a matter of law. Id.

at 19 n 7. Today is that day.

The state begins its argument with the text of OEC

404(4), which, as noted, 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.”

398 State v. Baughman

Thus, OEC 404(4) provides that relevant other acts evi-

dence is admissible except as otherwise provided by certain

evidentiary rules, including, “to the extent required by the

United States Constitution,” OEC 403.

The state contends that, in that quoted phrase, the

word “extent” is synonymous with “degree.” Thus, the state

argues, OEC 404(4)(a) makes OEC 403 applicable only to

the degree that the federal constitution requires it; that is,

when the evidence is so unfairly prejudicial that its admis-

sion would render a trial fundamentally unfair.

This court went a long way toward answering that

argument when it decided, in Williams, 357 Or at 19, that

OEC 404(4)(a) makes OEC 403 applicable, and OEC 403

provides a different standard for determining the admissi-

bility of evidence than the one for which the state argues. As

noted, 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(4)(a) provides that relevant evidence is admis-

sible except as provided by specified rules of evidence and

provides that one rule—OEC 403—is included in that list

of rules only to the extent that it—the rule—is required

by the constitution. By referencing that rule, the legisla-

ture referenced the legal standard of admissibility that the

rule sets forth, not another legal standard. The legislature

did not make evidence admissible “to the extent required by

the United States Constitution”; rather, it made evidence

admissible except as otherwise provided by specified rules

of evidence, including, if constitutionally required, OEC 403.

Because this court decided, in Williams, that the application

of OEC 403 is constitutionally required, the legal standard

that that rule provides is the applicable standard.

Other context supports that interpretation.

First, OEC 404(4)(a) makes the admission of other acts

evidence subject to rules of evidence in addition to OEC

403—OEC 406 through 412—and OEC 404(4)(b) makes

the admission of other acts evidence subject to the rules

Cite as 361 Or 386 (2017) 399

of evidence relating to privilege and hearsay. The legisla-

ture apparently intended that those rules apply by their

terms, and it is likely that the legislature also intended

that, if OEC 403 is applicable, it apply according to its

terms.

Second, a different part of the statute, OEC 404(4)(d),

provides that relevant other acts evidence is admissible

except as provided by “[t]he United States Constitution.” The

state is correct that the Due Process Clause of the United

States Constitution requires the exclusion of evidence that,

if admitted, would render a trial fundamentally unfair. See

U.S. v. Morena, 547 F3d 191, 194-97 (3d Cir 2008) (in defen-

dant’s trial for felon in possession of a firearm, admission of

evidence of defendant’s uncharged drug use was so preju-

dicial as to violate due process); McKinney v. Rees, 993 F2d

1378, 1385-86 (9th Cir 1993), cert den, 510 US 1020 (1993)

(where murder victim’s throat slit, evidence of defendant’s

interest in knives so inflammatory and of so little relevance

as to render trial fundamentally unfair in violation of due

process). Consequently, other acts evidence that would ren-

der a trial fundamentally unfair must be excluded under

OEC 404(4)(d), as a matter of law. But that does not mean

that OEC 404(4)(a) incorporates that standard. In fact, the

state’s interpretation of OEC 404(4)(a) to require exclusion of

evidence only when exclusion would be required under OEC

404(4)(d) would render OEC 404(4)(d) redundant, “a con-

sequence that this court must avoid if possible.” Blachana,

LLC v. Bureau of Labor and Industries, 354 Or 676, 692, 318

P3d 735 (2014).

The state acknowledges as much, but contends

that the legislature included paragraph (a) in OEC 404(4)

to provide the court with a “procedural mechanism” to con-

sider whether other acts evidence should be excluded as vio-

lative of due process. The problem with that argument is

that OEC 403 is not a “procedural mechanism”; rather, it

is, as noted, a legal standard by which the admissibility of

evidence is determined. By referring to OEC 403, the legis-

lature referred to the legal standard that it sets forth. Had

the legislature intended to impose some other, narrower,

“due process” standard for evaluating the admissibility of

evidence, it would have set out that standard, or referred to

400 State v. Baughman

the constitution as it did in OEC 404(4)(d); it would not have

referred to OEC 403.

The state also cites, as context, this court’s decision

in State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010), and

contends that it forecloses any argument that OEC 404(4)(a)

must be interpreted to permit ordinary balancing. We dis-

agree. The state is correct that the defendant in Moore/Coen

assumed that OEC 404(4) precluded balancing under OEC

403 and challenged its constitutionality on that basis. The

defendant argued that OEC 404(4) was unconstitutional on

its face or as applied because it favored only the prosecution

and made the conviction of a defendant more likely. Id. at

387-88. The court rejected the defendant’s facial challenge

because OEC 404(4) preserves “traditional standards of

relevancy” and precludes admission of evidence that would

“violate state and federal constitutional standards.” Id. at

389. The court also rejected the defendant’s as-applied chal-

lenge because, in that case, the admission of other acts evi-

dence for a noncharacter purpose—to establish an element

of a crime—did not offend the constitution. Id. at 391-92.

In reaching those conclusions, the court did not quarrel

with defendant’s assumption about the applicability of OEC

403, but neither did it adopt it. Nor did the court distin-

guish between OEC 403 balancing and some narrower form

of “due process” balancing. See Williams, 357 Or at 19 n 17

(explaining that Moore/Coen did not distinguish between

“traditional” and “due process” balancing). Moore/Coen

does not preclude an interpretation of OEC 404(4)(a) that

requires a trial court to engage in balancing under OEC 403

according to its terms.

The legislative history of OEC 404(4) also provides

little, if any, support for the state’s interpretation of that

rule. OEC 404(4) was part of Senate Bill (SB) 936 (1997). Id.

at 14. The bill’s opponents understood SB 936 as eliminating

the restrictions imposed by OEC 404(3) on the admission of

prior acts evidence in criminal cases, and they expressed

concern that the bill could be unconstitutional. Id. at 15

(citing Tape Recording, Senate Committee on Crime and

Corrections, SB 936, Mar 21, 1997, Tape 43, Side A (state-

ment of Jim Arnesen, Oregon Criminal Defense Lawyers

Association (OCDLA))). Mike Phillips, a member of the

Cite as 361 Or 386 (2017) 401

Board of Governors of the Oregon State Bar, also testified

that the bar had concerns about the provision of SB 936 that

would become OEC 404(4). House Committee on Judiciary,

Subcommittee on Criminal Law, SB 936, Apr 17, 1997, Tape

88, Side A. Phillips stated that he believed that OEC 404(4)

would have the effect that

“evidence of someone’s prior acts may be used to prove what

their character is for the purpose of showing that they

acted in conformance with that character now. That is,

essentially, if you are a bad person[,] it is more likely you

committed this crime. That repeals a part of the evidence

law of the Anglo-American system that’s been in existence

since 1695.”

Id. Special Counsel to the Attorney General Mark Gardner,

who was involved in drafting SB 936, responded,

“There is a balancing test that is required under the U.S.

Constitution. Mr. Phillips should review his constitutional

law because that is required[,] that a trial judge balance

the probative evidence versus the prejudicial effect before

the judge constitutionally can admit 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.”

Id. at Tape 89, Side A (emphasis added). Like Gardner, Jim

Arnesen, a representative of the OCDLA, understood that

evidence introduced under OEC 404(4) would be subject to

traditional OEC 403 balancing: “[T]he 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.” Tape Recording, Senate Committee on Crime

and Corrections, SB 936, Mar 21, 1997, Tape 43, Side A

(statement of Jim Arnesen, OCDLA).

That history indicates that those involved in the

drafting of SB 936 believed that OEC 403 would apply to

ensure that OEC 404(4) would not violate the United States

Constitution. It also evidences an assumption that OEC 403

would be applied by trial courts to assess whether the proba-

tive value of other acts evidence is substantially outweighed

by the danger of unfair prejudice, not to determine whether,

as a matter of law, admission of such evidence would render

the trial fundamentally unfair.

402 State v. Baughman

Considering the text, context, and legislative his-

tory of OEC 404(4), we are persuaded that, in enacting that

rule of evidence, the legislature intended trial courts to con-

duct the balancing required by OEC 403 according to its

terms. Under OEC 404(4)(a) and OEC 403, trial courts may

exclude evidence, in the exercise of their discretion, when

they determine that its probative value is substantially

outweighed by the danger of unfair prejudice. See State v.

Knight, 343 Or 469, 483, 173 P3d 1210 (2007) (explaining

that court’s exclusion of evidence under OEC 403 requires

exercise of discretion). Under OEC 404(4)(d), trial courts

also must exclude evidence, as a matter of law, that would

render a trial fundamentally unfair and violate the Due

Process Clause. See State v. Rogers, 330 Or 282, 312, 4 P3d

1261 (2000) (explaining that, when only one legally correct

outcome exists, decision is legal in nature and not exercise of

discretion). OEC 404(4)(a) and OEC 404(4)(d) thus provide

two independent bases for excluding other acts evidence.7

That does not mean, however, that the balancing

that a trial court conducts under OEC 403 will be devoid

of due process considerations. As this court explained in

Williams, it is the Due Process Clause that requires the

application of OEC 403. 357 Or at 18. The common-law

underpinnings of that rule, the Supreme Court’s explana-

tion of the meaning of the term “unfair prejudice” in Old

Chief, and its description of the role that balancing plays

in Dowling all remind us that OEC 403 balancing must be

conducted to preclude the admission of “concededly relevant

evidence” that has the capacity “to lure the factfinder into

declaring guilt on a ground different from proof specific to

7

It is not entirely clear to us that “traditional” balancing and “due process”

balancing are as different as the parties assume that they are. We recognize that

“traditional” OEC balancing requires an exercise of discretion, Knight, 343 Or at

483, and that the rule for which the state advocates would require exclusion of

other acts evidence as a matter of law. However, both standards are intended to

ensure a trial that is fundamentally fair. If a trial court were to determine, in the

exercise of its discretion, that the probative value of other acts evidence was sub-

stantially outweighed by the danger of unfair prejudice, but, nevertheless, were

to admit that evidence, that might well result in a trial that an appellate court

would deem fundamentally unfair. We think it important to note that, as the

state acknowledged at oral argument in this case, no court, state or federal, has

distinguished between the balancing required under codified evidentiary rules

and some narrower “due process” balancing.

Cite as 361 Or 386 (2017) 403

the offense charged.” Old Chief, 519 US at 180. That is why

we said, in Williams, that,

“when ‘other acts’ evidence ‘goes only to character and there

are no permissible inferences the jury may draw from it,’ it

is more likely that the evidence will be excluded. Such evi-

dence 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.”

357 Or at 20 (emphasis in original).8

III. APPLICATION

The final issues for our analysis in this case are

whether the trial court erred in admitting other acts evi-

dence, and, if so, the proper remedy on remand. As explained,

the trial court analyzed the admissibility of the other acts

evidence that the state proffered under OEC 404(3) and OEC

403, and the Court of Appeals held that the trial court had

erred with respect to the probative value that it assigned to

that evidence. Baughman, 276 Or App at 771-72. On review,

the state asks that we examine that evidence to determine

whether it rendered the trial fundamentally unfair and

does not independently argue that the Court of Appeals was

wrong in its “traditional” OEC 403 analysis. However, the

state argues, any remand to the trial court should be a lim-

ited remand for OEC 403 balancing and not necessarily for

a new trial. To assess that argument, it is helpful to review

the analytical framework that a trial court should use to

assess the admissibility of other acts evidence.

In setting out that framework, it also is helpful to

clarify what we meant when we said, in Williams, that, in

criminal cases, OEC 404(4) supersedes OEC 404(3). 357 Or

at 15. In criminal cases, OEC 404(4) makes other acts evi-

dence admissible to prove a defendant’s character, subject to

8

We caution that this court has suggested, but not yet decided, that the fed-

eral constitution may, as a matter of law, prohibit the admission of other acts

evidence to prove propensity in a criminal case in which the defendant is charged

with crimes other than child sexual abuse. See Williams, 357 Or at 17 (noting

that, if defendant had been charged with crimes other than child sexual abuse,

court might be persuaded that due process precludes the admission of other acts

evidence).

404 State v. Baughman

specified rules of evidence and the state and federal consti-

tutions. Consequently, OEC 404(4) supersedes the first sen-

tence of OEC 404(3), which provides that “[e]vidence of other

crimes, wrongs or acts is inadmissible to prove the character

of a person in order to show that the person acted in confor-

mity therewith.” (Emphasis added.) However, OEC 404(4)

does not supersede the second sentence of OEC 404(3),

which provides that other acts evidence “may be admissi-

ble for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” If other acts evidence is not proffered

to prove a defendant’s character, but instead is offered for a

nonpropensity purpose, then analysis under OEC 404(4) is

unnecessary; the evidence “may be admissible” under the

second sentence of OEC 404(3).

Thus, in State v. Turnidge, 359 Or 364, 440-42, 374

P3d 853 (2016), this court began by considering whether the

other acts evidence that the state adduced was relevant for

a nonpropensity purpose under OEC 404(3)—there, as “true

plan” evidence. After determining that it was, the court then

turned to OEC 403 and considered whether the trial court

had correctly conducted the balancing required by that rule.

Id. at 442. The court saw no reason to consider whether the

evidence also was admissible under OEC 404(4), id. at 433-

34, and affirmed the trial court’s ruling, id. at 445-46.

Trial courts also should follow that two-step analy-

sis. When a party objects to the admission of other acts

evidence, a trial court first should determine whether the

proffered evidence is relevant for one or more nonpropensity

purposes, under OEC 404(3). If it is, then the court should

determine, at step two, whether the probative value of that

evidence is substantially outweighed by the danger of unfair

prejudice under OEC 403.9 If the trial court determines

that the evidence is relevant for a nonpropensity purpose

under OEC 404(3) and admissible under OEC 403, then

it need not determine whether the evidence also is admis-

sible under OEC 404(4) and OEC 403. However, if a trial

9

We do not decide, in this case, whether, in addition to objecting to the

admission of such evidence, a party also must explicitly seek balancing under

OEC 403.

Cite as 361 Or 386 (2017) 405

court determines that proffered evidence is not relevant for

a nonpropensity purpose, then it must determine whether

that evidence nevertheless is otherwise relevant under OEC

404(4) and, at step two, whether the probative value of the

evidence is substantially outweighed by the danger of unfair

prejudice, under OEC 403.

A trial court’s decision, at step one, about whether

other acts evidence is relevant for a nonpropensity purpose,

will have a significant effect on whether the trial court

admits that evidence at step two. At one end of the spec-

trum, other acts evidence that is relevant for a nonpropen-

sity purpose under OEC 404(3) generally will be admissible

under OEC 403 as long as the particular facts of the case do

not demonstrate a risk of unfair prejudice that substantially

outweighs the probative value of the evidence. Williams, 357

Or at 19. At the other end of the spectrum, when evidence

is relevant only to prove a defendant’s character, more sig-

nificant due process concerns are implicated, and, generally,

the danger of unfair prejudice will substantially outweigh

the probative value of the evidence. Id. at 20.

In this case, the trial court began correctly at step

one of the analysis and considered whether the evidence of

defendant’s uncharged abuse of A was relevant for a non-

propensity purpose under OEC 404(3). The court agreed

with the state that the other acts evidence regarding A was

relevant for three nonpropensity purposes—to prove iden-

tity and intent, and to bolster the credibility of the victim.10

Giving that evidence weight for that purpose, the court

10

As noted, the trial court also admitted evidence of defendant’s uncharged

abuse of B for the same three nonpropensity purposes. For the reasons that we

explain in the text, those purposes are not relevant, nonpropensity purposes.

However, with respect to B, the trial court also mentioned a fourth nonpropensity

purpose for admitting the evidence—to establish context for the charged acts—

and the state argues before this court that that evidence is relevant for a fifth

nonpropensity purpose—to prove that defendant had a sexual predisposition for

the victim. See State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990) (holding prior

acts evidence involving same victim admissible to “demonstrate the sexual pre-

disposition this defendant had for this particular victim”). We express no opinion

about whether the evidence of defendant’s uncharged abuse of B is relevant con-

text or predisposition evidence, whether that evidence is correctly viewed as rele-

vant for a nonpropensity purpose under OEC 404(3), or what conclusion the trial

court might reach, on remand, in evaluating the admissilibility of that evidence

under OEC 403.

406 State v. Baughman

admitted it under OEC 403, and defendant appealed to the

Court of Appeals.

An appellate court reviews a trial court’s determi-

nation of whether proffered other acts evidence is relevant

for a nonpropensity purpose under OEC 404(3) for errors

of law. See State v. Pitt, 352 Or 566, 582, 293 P3d 1002

(2012) (trial court committed legal error in admitting what

amounted to evidence of propensity for nonpropensity pur-

poses). In contrast, an appellate court reviews a trial court’s

determination of whether the probative value of the prof-

fered evidence substantially outweighs the danger of unfair

prejudice under OEC 403 for abuse of discretion. Knight, 343

Or at 483-84.

In this case, the Court of Appeals correctly consid-

ered whether the trial court had committed a legal error in

its determination of whether the proffered evidence was rel-

evant for a nonpropensity purpose. The court reasoned that

the challenged evidence was relevant for only one nonpro-

pensity purpose—to prove defendant’s intent under a Johns

analysis—and not for the other two nonpropensity purposes

on which the trial court had relied. Baughman, 276 Or App

at 770-72. In this court, the state does not argue that defen-

dant’s abuse of A was relevant to prove defendant’s intent or

for any other nonpropensity purpose. For the reasons that

follow, we conclude that defendant’s abuse of A was not rel-

evant for the three nonpropensity purposes that the trial

court identified.

First, as the Court of Appeals held, under Pitt, 352

Or at 576-78, the challenged evidence regarding A is neither

relevant to show identity nor admissible for a nonpropensity

purpose of bolstering the victim’s credibility. Baughman,

276 Or App at 767-69. Like Pitt, this is not a case in which

the state seeks to prove defendant’s identity based on modus

operandi. 352 Or at 577. And, as in Pitt, an argument that

the evidence is admissible to bolster the victim’s testimony

is no more than a propensity argument by another name. Id.

at 577-78.

Second, although the Court of Appeals considered

the evidence of defendant’s abuse of A to be relevant to his

Cite as 361 Or 386 (2017) 407

intent to abuse B under Johns, this court explained the lim-

ited application of Johns in Turnidge. Specifically, the doc-

trine of chances, on which Johns is based, does not apply in

every case in which the state must prove that a defendant

acted intentionally. 359 Or at 435-36. Rather, under the doc-

trine of chances, the admissibility of the evidence depends

on the proposition that multiple instances of similar conduct

are unlikely to occur accidentally. State v. Leistiko, 352 Or

172, 182, 282 P3d 857 (2012). But, where a defendant does

“not advance any sort of defense (such as inadvertence or

self-defense) that customarily would be countered by a doc-

trine of chances theory of relevancy,” and the state does not

offer other acts evidence “to prove ‘intent’ in the ‘absence

of mistake’ sense of the term,” then the doctrine of chances

is inapplicable, and other acts evidence is not admissible to

prove a defendant’s intent on that basis. Turnidge, 359 Or at

437.

Here, as in Turnidge, defendant did not raise mis-

take or inadvertence as a defense. Instead, defendant argued

that the charged acts had not occurred. And, although other

acts evidence can be relevant to a defendant’s intent on the-

ories other than the doctrine of chances, id. at 436, the state

does not advance any such theory in this case. We therefore

conclude that the evidence of defendant’s abuse of A was not

relevant for any nonpropensity purpose under OEC 404(3)

and that the trial court erred in considering it for such

purposes.

That error at step one of the analysis significantly

affected the trial court’s decision at the second step of its

analysis and the court’s admission of the challenged evi-

dence. The reason, as noted, is that evidence admitted for a

nonpropensity purpose generally is admissible under OEC

403, while evidence admitted solely to prove a defendant’s

character generally is not. The trial court erred, and, as the

state recognizes, the trial court’s admission of that evidence

was not harmless. We cannot conclude that “there is little

likelihood” that the evidence that defendant not only sex-

ually abused B, but also abused A, affected the jury’s ver-

dict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (error

requires reversal unless reviewing court can conclude that

408 State v. Baughman

there was little likelihood that trial court’s ruling affected

jury’s verdict).11

That does not resolve the final issue that the state

raises, however. The state argues that, when this court

determines that a trial court has committed a “procedural”

error, such as that committed in this case, the proper rem-

edy is first to allow the trial court correctly to conduct an

appropriate analysis under OEC 404 and OEC 403. Then,

if the court determines that challenged other acts evidence

is admissible, a new trial will not be necessary. In the past,

the state submits, this court has ordered similar limited

remands to make unresolved determinations or to redo pro-

cedurally flawed determinations. For that proposition, the

state cites State v. Paulson, 313 Or 346, 352-53, 833 P2d

1278 (1992) (case remanded to trial court for evidentiary

hearing on whether police officers received consent to enter

apartment and whether, alternatively, evidence would have

inevitably been discovered); State v. McDonnell, 310 Or 98,

106-07, 794 P2d 780 (1990) (case remanded for evidentiary

hearing to determine how prosecutor would have exercised

judgment and discretion on basis of proper criteria and facts

that existed at time he declined to enter into plea agree-

ment); and State v. Probst, 339 Or 612, 629-30, 124 P3d 1237

(2005) (case remanded to trial court for defendant to put

on evidence establishing that absence of counsel resulted in

involuntary guilty plea).

Defendant responds that, if we were to accept the

state’s argument, we would be abdicating our role in deter-

mining whether a trial court’s error is harmless and ceding

it to the trial court. Defendant contends that, when a trial

court errs in analyzing other acts evidence and revises its

analysis on remand, retrial always will be necessary. For

instance, defendant asserts, if a trial court were to admit

such evidence for a different purpose than it did in the

11

The Court of Appeals considered the trial court’s error to be a violation of

defendant’s due process rights under the United States Constitution. Baughman,

276 Or App at 772. For that reason, the court applied the federal harmless error

test and determined that it could not confidently say that the error was harmless

beyond a reasonable doubt. Id. Although we hold that the application of OEC 403

is constitutionally required, we consider the trial court’s error to be a violation of

that evidentiary rule, and we therefore apply our state harmless error test.

Cite as 361 Or 386 (2017) 409

original trial, that would affect the parties’ trial strategies

and arguments, and the court’s jury instructions. In addi-

tion, defendant contends, if a trial court is given an oppor-

tunity to retrospectively review its prior decision to receive

evidence, the court will have an incentive to make the same

decision and avoid a new trial.

Defendant’s first argument is based on a misun-

derstanding of how an appellate court determines whether

a trial court’s error in analyzing the admissibility of other

acts evidence was harmless. When a trial court errs in

determining that other acts evidence is relevant for a non-

propensity purpose, that decision necessarily affects the

trial court’s weighing and admission of that evidence, and

we, as an appellate court, can consider the effect of that evi-

dence and whether its admission was harmless. What we

cannot do, however, is determine what the trial court will do

when it corrects such an analytical error on remand. This

court’s decision in State v. Cartwright, 336 Or 408, 85 P3d

305 (2004), demonstrates why remand for that purpose is

necessary.

In Cartwright, this court held that the trial court

had erred in failing to require the state to produce record-

ings that, the defendant contended, could contain impeach-

ing witness statements. This court held that the trial court’s

error was not harmless under Davis because the defendant

did not have the benefit of those recordings and “cross-

examining those witnesses on their prior statements could

have been a very effective method of undermining the state’s

case.” Id. at 420. Under those circumstances, the court said,

it could not conclude that the trial court’s decision “had little

likelihood of affecting the verdict.” Id. (citing Davis, 336 Or

at 32). Rather than remanding for retrial, however, the court

remanded for production of the recordings. Recognizing that

the recordings might not contain impeaching material, the

court granted the defendant an opportunity for review and a

trial court hearing. After a hearing, the court said, the trial

court could order a new trial, or, alternatively, make find-

ings that “defendant’s inability to use the materials could

not have affected the verdict,” and reinstate the original

judgment of conviction. Id. at 421.

410 State v. Baughman

Similarly, in this case, we are not in a position to

know whether the trial court will exclude or admit other acts

evidence when it reconsiders the state’s proffer on remand.

If the trial court excludes the evidence, then a new trial cer-

tainly will be necessary. If, however, the trial court again

admits the evidence, then the question whether a new trial

is required is more difficult.

Defendant is correct that the purposes for which a

trial court admits other acts evidence may affect the parties’

trial strategies and arguments, and the court’s jury instruc-

tions, and, therefore, that a new trial may be required even

if evidence previously admitted is again received. Defendant

also is correct that judges are human and may be influenced

by their prior decisions and concerns for efficient judicial

administration. But recognizing and nevertheless putting

aside such concerns, and fairly assessing how to ensure a

fair trial for all parties, is the daily stuff of our trial courts.

In this circumstance, we think it best to leave it to those

courts to determine, on a case-by-case basis, whether, after

conducting a correct analysis under OEC 404 and OEC 403,

other acts evidence should again be received and whether a

new trial is required or appropriate. A trial court’s decision

about the appropriate proceedings on remand will depend,

not on whether the trial court’s error in the original case

was “procedural” or “substantive,” but on the facts of the

original case, the arguments that the parties made, and

the instructions that the court gave. Even if a trial court

admits, on remand, the same evidence that it received in the

original trial, the court may order a new trial if necessary or

appropriate.

In this case, the trial court erred in admitting the

evidence of defendant’s abuse of A for what it considered to

be three nonpropensity purposes.12 On remand, the state

12

The trial court also erred in admitting the evidence of defendant’s

uncharged abuse of B for those three nonpropensity purposes. As noted, the trial

court also admitted that evidence for a fourth purpose—to provide context—and

the state argues that the evidence is relevant for a fifth purpose—to demonstrate

defendant’s sexual predisposition for the victim. Because we reverse and remand

for further proceedings, the trial court will have an opportunity to consider the

parties’ arguments about whether that evidence is correctly viewed as relevant

for a nonpropensity purpose under OEC 404(3), and to conduct balancing under

OEC 403.

Cite as 361 Or 386 (2017) 411

will be entitled to make new arguments about the purposes,

if any, for which proffered other acts evidence is relevant,

and the trial court will have to determine whether the cog-

nizable probative value of that evidence is substantially out-

weighed by the danger of unfair prejudice that it poses. No

matter what decision the court makes, a new trial may be

required to allow the parties to make new arguments, and

the court to give new instructions, to the jury. For example,

in the original trial, the trial court instructed the jury that

it could consider defendant’s abuse of A to prove defendant’s

intent in abusing B. If the court admits proffered evidence

for a different purpose on remand, different instructions

may be required. The trial court will be in the best position

to assess the need for a new trial after it has determined

the purposes for which the challenged evidence is relevant

under OEC 404(3), and, if argued, under OEC 404(4), and

whether to admit it. We leave it to the trial court to deter-

mine the nature of the proceedings that are necessary or

appropriate on remand.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings, con-

sistently with this opinion.