State v. Kelley

“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 non-propensity purposes, under OEC 404(3). 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.” State v. Baughman, 361 Or 386, 388-90, 393 P3d 1132 (2017).

Defendant appealed his convictions for menacing constituting domestic violence and reckless driving as well as a judgment of contempt in a separate case. Defendant assigned error to the trial court’s failure to properly conduct the balancing test required by OEC 403 when admitting prejudicial evidence. On Appeal, Defendant argued that the trial court either did not conduct the balancing test or, if it did conduct the test, it did so incorrectly. In response, the State argued that the trial court had carried out the balancing test appropriately and if there had been any error, it was harmless. “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 non-propensity purposes, under OEC 404(3). 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.” State v. Baughman, 361 Or 386, 388-90, 393 P3d 1132 (2017). The Court of Appeals held that the trial court erred in finding that the disputed evidence had any probative value and that this error was no harmless. Reversed and remanded.