State v. Ezell

OEC 404(4) states that “in criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by … [inter alia, OEC 403] (evidence is inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice).”

Petitioner appealed a conviction for two counts of first-degree sodomy (ORS 163.405) and three counts of first-degree sexual abuse (ORS 163.427). Petitioner assigned four assignments of error. First, petitioner argued that the trial court’s admission of other-acts evidence should have been inadmissible under OEC 403 due to a risk of unfair prejudice. For his second and third arguments, petitioner argued that the trial erroneously instructed the jury to return a non-unanimous verdict for Counts 3 and 4. Fourth, petitioner argued that the trial court’s non-unanimous jury was structural error allowing the Court to reverse and remand for the unanimous jury verdicts. The Court agreed with Petitioner's second and third assignments of error, but disagreed on the fourth, thus only authorizing reversal of Petitioner’s convictions for the non-unanimous counts. The Court also disagreed with Petitioner's first assignment of error and affirmed the remaining convictions. OEC 404(4) states that “in criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by … [inter alia, OEC 403] (evidence is inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice).” On review, the Court reasoned that the trial court did not abuse its discretion by admitting evidence of the uncharged conduct because it properly balanced the evidence of propensity to ensure that it did not unfairly prejudice the Petitioner. The Court found that the other-acts evidence was logically relevant and was appropriately balanced by the trial court who directed a limited jury instruction in order to restrict the jury’s use of the evidence for only permissible purposes. Convictions on Counts 3 and 4 reversed and remanded; remanded for sentencing; otherwise affirmed.