State v. Altabef

                                       240

       Argued and submitted September 3, 2020, affirmed July 14, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     AARON SCOTT ALTABEF,
                        Defendant-Appellant.
                     Marion County Circuit Court
                         13C41985; A169768
                                  

    Defendant appeals from a judgment of conviction for first-degree sodomy,
ORS 163.405, and first-degree sexual abuse, ORS 163.427, following the trial
court’s determination on remand that the prejudicial nature of prior acts evidence
did not outweigh its probative value under OEC 403. Defendant argues that the
trial court erred on remand when it admitted the prior acts evidence, contending
that the court erroneously balanced the arguments in light of the prosecutor’s
presentation of the evidence at trial. Defendant also repeats three assignments of
error previously rejected on the merits in a prior appeal. Held: The trial court did
not err as a matter of law nor abuse its discretion when balancing the probative
value and prejudicial nature of the evidence under OEC 403. The law of the case
precluded review of defendant’s remaining three assignments of error.
    Affirmed.



    Thomas M. Hart, Judge.
  Mark J. Geiger argued the cause and filed the briefs for
appellant.
   Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeVORE, P. J.
    Affirmed.
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           DeVORE, P. J.
          Defendant appeals from a judgment of conviction
for first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427, following our decision in an earlier
appeal in which we reversed defendant’s convictions and
remanded for the trial court to balance the probative value
and prejudicial nature of prior acts evidence under OEC
403.1 State v. Altabef, 

, 

(2018) (Altabef III) (remanding for proceedings consistent
with State v. Baughman, 

, 

(2017)).
         Defendant argues that the trial court erred on
remand when it admitted the prior acts evidence. He contends that the court overstated the evidence’s probative
value in light of the prosecutor’s oral arguments at trial and
understated its prejudicial value. In addition, defendant
repeats three assignments of error that we rejected on the
merits without discussion in his first appeal. State v. Altabef,

, 

 (2016) (Altabef I), vac’d
and rem’d on other grounds, State v. Altabef, 

, 

 (2017) (Altabef II). We affirm, because the law of the
case precludes review of defendant’s second through fourth
assignments and because the trial court did not err as a
matter of law nor abuse its discretion when balancing the
probative value and prejudicial nature of the evidence under
OEC 403.
         Defendant was charged with four sexual crimes for
conduct involving his niece, J. We summarized the relevant
facts in Altabef I:
    “J alleged that defendant sexually abused her three times
    between November 2012 and January 2013. The charges
    concern the latter two incidents. J said that the first incident happened at her grandparents’ house in Snohomish
    County, Washington, while she and her family visited over
    Thanksgiving. The second incident happened during the
    car ride back home from her grandparents’ house, while

     1
       OEC 403 provides that, “[a]lthough 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.”
242                                                         State v. Altabef

    defendant shared the backseat with J and her younger sister. The third incident happened at her parents’ house in
    Oregon while defendant baby sat for J and her sister. J’s
    parents—defendant’s sister and brother-in-law—reported
    what J told them to the police.”

.
          Before trial, defendant moved to exclude evidence of
the first incident at the grandparents’ house and evidence of
any conduct during the car ride back from Washington that
occurred outside of Oregon. Altabef III, 

.
That evidence included testimony that defendant had told J
not to tell anyone about the abuse. Defendant argued that
the evidence was irrelevant or relevant only to show propensity, and defendant requested that the trial court perform
OEC 403 balancing before admitting the evidence. 

 The
trial court held that the evidence was admissible and admitted it without conducting OEC 403 balancing. 

         In his first appeal, defendant renewed his arguments under OEC 403 and asserted seven other assignments of error.2 Altabef I, 

. We agreed with
defendant that the trial court erred when it failed to balance
the probative value and prejudicial effect of the prior acts
evidence and reversed and remanded for a new trial on that
basis. 

. We “reject[ed] the remaining assignments
without discussion.” 

.
         The state sought review from the Supreme Court,
challenging our determination on OEC 403 and disputing
the scope of remand required when a trial court fails to perform the OEC 403 balancing test. Defendant did not cross-petition for review of the seven other assignments of error
we had rejected in Altabef I.

    2
       Among those seven assignments of error, defendant assigned error to the
trial court’s denial of his amended motion to suppress his statements to J’s parents, arguing that the parents were acting as agents of the police and the statements were involuntary; the trial court’s denial of his motion in limine seeking
the admission of J’s actions and statements to show knowledge of sexual matters;
and the trial court’s denial of his motion in limine to exclude all of defendant’s
admissions obtained through impermissible vouching by J’s parents acting as
state agents. Those are the three assignments of error that defendant renews on
this appeal.
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         Thereafter, the Supreme Court decided a trilogy of
cases that addressed the appropriate remedy for cases in
which a trial court fails to perform balancing under OEC
403. The court concluded that, rather than a remand necessitating a full new trial, a more limited remand is appropriate, whereby the trial court will “determine, on a caseby-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.” Baughman, 

; See also State v.
Zavala, 

, 

 (2017); State v. Mazziotti,

, 

 (2017).
        The Supreme Court reversed and remanded our
decision in Altabef I to us, directing that
   “The decision of the Court of Appeals is vacated, and this
   case is remanded to the Court of Appeals for reconsideration in light of State v. Zavala …; State v. Mazziotti …;
   and State v. Baughman ….”

Altabef II, 

. On remand, we again concluded that
the trial court committed reversible error in failing to conduct balancing under OEC 403 and that the error was not
harmless. Altabef III, 

. Consistent
with Baughman, we reversed and remanded “for the trial
court to exercise its discretion to determine whether the
probative value of the evidence is substantially outweighed
by the danger of unfair prejudice.” 

. In addition,
we observed that we had previously “rejected the remainder
of defendant’s assignments of error without written discussion” in Altabef I. 

.
         In the ensuing hearing and prehearing memo,
defendant argued that the prior acts evidence should not be
admitted because the prejudice of the jury potentially using
that evidence to conclude that defendant had a predisposition toward sexual abuse outweighed any probative value.
Defendant acknowledged the limited scope of the remand,
but “incorporated by reference” three of his unsuccessful
assignments of error from his first appeal as asserted in
his original appellate brief. Defendant argued that, in the
event of a further appeal, this court would “have a chance to
244                                          State v. Altabef

re-address those issues because [we] didn’t address them in
the original opinion.”
          In its prehearing memo, the state argued that the
prior acts evidence was admissible under either OEC 404(3)
or OEC 404(4) through multiple theories of relevance, including to help explain J’s delayed reporting to her parents and
the police, to demonstrate defendant’s sexual predisposition
to J, to rebut claims from J’s grandparents that J’s account
was not credible, and to show defendant’s propensity to commit sex abuse against J. The state argued that the probative
value of the evidence outweighed any potential prejudice to
the defendant.
          The trial court admitted the evidence. The trial
court determined that the evidence was relevant to explain
J’s delayed disclosure following multiple instances of abuse
and that “the other reasons [of relevancy] as set forth in the
[s]tate’s memorandum are equally important.” When balancing under OEC 403, the trial court concluded that the
probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
         On appeal here, defendant first asserts that, under
OEC 403, the trial court erred when it admitted the two
instances of prior acts evidence—his sexual abuse of J at
her grandparents’ home in Washington and on the car ride
back to Oregon. We do not understand defendant to dispute
that the evidence could generally be relevant to support the
theories explained by the trial court, such as why J did not
immediately tell others about the abuse. Rather, defendant
contends that the evidence was irrelevant for those purposes only in light of the lack of emphasis placed on those
theories in the prosecutor’s oral arguments at trial. Because
the trial court did not assess the theories of relevance by
“examining the prosecutor’s case theory, opening[,] and
closing statements” at trial, defendant argues that the trial
court improperly assessed the evidence’s probative value.
Defendant then argues that any probative value was outweighed by the prejudice of portraying “defendant as a predator who was ‘after’ [J].”
       The state responds that the evidence was admissible
under multiple theories of relevance, including to explain J’s
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delayed disclosure, which sufficiently supported the state’s
need for, and the probative value of, the evidence. The state
also argues that the trial court acted within its discretion
when it determined that the probative value outweighed the
prejudicial nature of the evidence.
         We review a trial court’s determination that prior
acts evidence is relevant for nonpropensity or propensity
purposes under OEC 404(3) or OEC 404(4) for legal error.
State v. Rockett, 

, 

 (2020).
We review a trial court’s balancing under OEC 403 for an
abuse of discretion and “generally [defer] to the trial court’s
decision whether the probative value of the evidence is substantially outweighed by the potential for prejudice.” State
v. Borck, 

, 

 (2009) (internal
quotation marks omitted).
          When assessing the relevance of prior acts evidence
on remand, and, relatedly, the probative value of those relevancy theories, the trial court is not limited to the theories advanced by the parties at the preceding trial. See
Baughman, 

 (noting that the parties will
be “entitled to make new arguments about the purposes
… for which proffered other acts evidence is relevant” on
remand); State v. Davis, 

, 452-53, 

 (2017) (declining to limit the parties on remand to the
same OEC 403 arguments the parties originally made to
the trial court). On remand, therefore, parties may advance
relevancy theories regardless of the specific oral arguments
they made at the trial or the fervor with which they made
them.
         The trial court can also review the proposed relevancy theories not only in light of how a prosecutor actually
articulated the purpose of the evidence in her closing argument, but also by considering how the factfinder or jury could
potentially view the evidence. See State v. Kristich, 

, 

 (1961) (explaining that evidence of
prior sexual abuse of the same victim was relevant to “complete the story of the crime on trial by proving its immediate
context of happenings near in time and place” (internal quotation marks omitted)); State v. White, 

,

 (2012) (explaining that evidence of prior abuse
246                                            State v. Altabef

of the same victim was independently relevant to counter
a possible inference that the delay in reporting was indicative of fabrication). For example, the trial court may consider whether, given the totality of evidence presented at the
original trial, inherent weaknesses in the state’s case could
have left the jury with gaps of knowledge or “ ‘uncertainties that might otherwise detract from the strength of the
[state’s] case.’ ” White, 

 (quoting State v.
Galloway, 

, 

 (1999)).

         Here, the fact that the trial court did not expound
with an explicit review of how the proposed relevancy theories may have corresponded with a specific witness’s testimony or a party’s opening or closing arguments to the jury
is not talismanic. Contrary to defendant’s argument, the
probative value of the evidence was not represented by how
extensively the prosecutor relied on that evidence at trial or
how many times she relied on a specific theory in her closing
arguments. Instead, as in White and Kristich, the trial court
was permitted to gauge the probative value of the evidence
using theories of relevance that are based on filling possible
independent gaps or spots of confusion in the narrative for
the jury. It did just that when it determined that the overall
presentation of evidence—including that J did not tell her
parents about the abuse until weeks after it occurred—left
an inherent risk that the jury could infer reasons for the
delayed reporting. In this case, defendant’s comparativeargument methodology does not provide a basis to conclude
that the trial court erred when evaluating the relevance of
the challenged evidence in light of the allegations and surrounding evidence in the case.

         Next, the trial court did not abuse its discretion
when weighing the probative value and prejudicial nature of
the evidence under OEC 403. A trial court errs under OEC
403 if it fails to exercise discretion, refuses to exercise discretion, or fails to make a record which reflects an exercise
of discretion. State v. Mayfield, 

, 

 (1987). Our role on appeal is to assess whether the trial
court’s decision falls within the range of legally permissible
choices. Rockett, 

; see also State v. Rogers,

, 

 (2000).
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          When balancing under OEC 403, the trial court
engages in four parts of that process—analyzing the probative value or strength of the evidence, determining the prejudicial nature of the evidence, balancing the prosecution’s
need for the evidence against the countervailing potential
for prejudice, and ruling as to what portion of the evidence is
admissible. Mayfield, 

. That balancing process,
however, does not require the trial court to recite those considerations in a particular manner. State v. Anderson, 

, 

 (2018). Instead, the trial court sufficiently engages in balancing when its ruling demonstrates
that the trial court exercised its discretion and balanced the
appropriate considerations in resolving the OEC 403 objection. 

         Defendant argues, by relying exclusively on State v.
Holt, 

, 

 (2018), that, because there
was a risk of prejudice that the jury could have impermissibly used the prior acts evidence to convict him based on his
character, the trial court was compelled to exclude the evidence under OEC 403. In Holt, the defendant was charged
with the sexual abuse of a child and later challenged the
admission of previous incidents of intimate conduct with the
victim. 

. We remanded after determining that the
trial court had admitted the evidence without engaging in
balancing at all. 

.

         Defendant misunderstands our conclusion in Holt
when he argues that we reversed that case under OEC 403
because the prior incidents of intimate conduct definitively
“posed too much of a risk that the jury would convict based
on his character rather than on whether the charged acts
occurred.” Instead, we concluded that the error was not harmless where the case was “largely a credibility contest” and
“[d]epending on how the trial court weighed [the] probative
value against the risk of unfair prejudice, … either decision
would have fallen within the permissible range of outcomes.”

 (emphasis added). We did not conclude that the
prejudicial value of the evidence in Holt outweighed its probative value; rather, we remanded for the trial court to make
that decision through balancing. We noted that both possible
balancing outcomes were legally permissible. 

.
248                                            State v. Altabef

         Here, as in Holt, it was within the legally permissible range of outcomes for the trial court to determine that
the probative value of the prior instances of sexual contact
with J outweighed the potential for prejudice. As the trial
court determined, the evidence that defendant had previously sexually touched J and told her not to tell anyone was
relevant to show why J had not reported the abuse immediately after it occurred. The state’s need for that evidence was
particularly significant where defendant denied that the
events occurred at all; the state’s case rested on the credibility of the victim’s testimony against defendant. Explaining
why the victim likely did not report the abuse until some
time after it occurred was probative of the central issue in
the case—whether the sexual abuse of J took place.
         We conclude that the record sufficiently demonstrates that the trial court balanced that probative value
against any possible prejudice to defendant and determined
that the probative value outweighed any such prejudice. The
court did not abuse its discretion under OEC 403 in admitting the prior acts evidence.
         In his second through fourth assignments of error,
defendant reasserts and recasts some of the arguments he
made before us in his first appeal, which we rejected without
discussion on that occasion. Altabef I, 

.
The state responds that our previous disposition means that
defendant’s remaining assignments of error are foreclosed
from consideration on this appeal by the law of the case.
Defendant counters that the law of the case does not apply,
because when we explicitly reject assignments of error without discussion, he believes that disposition does not mean
that we considered the merits of those assignments before
rejecting them. The state is correct.
         It is well-settled in Oregon that under the doctrine
of the law of the case, where assignments of error present
the same questions of law already decided in a previous
appeal, the decisions in the former opinion govern. State v.
Pratt, 

, 

 (1993); Marr et al v.
Putnam et al, 

, 

 (1958); Douglas v.
Rumelin et al., 

, 

 (1929); Thompson
v. Hawley, 

, 

 (1888).
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          Before applying that principle here, we explain that
when we reject assignments of error expressly but without
discussion, that rejection serves as a substantive decision
on those assignments. See Meyer v. Livesley, 

,

 (1912) (explaining that even when not extensively
discussed in an opinion, or even alluded to, where a material issue has been considered and disposed of by the court,
it is the law of the case); J.C. Compton Co. v. Brewster, 

, 

 (2003) (noting that rejecting
an argument without discussion is the result of considering
and rejecting the merits of that argument). That situation is
to be distinguished from one in which we expressly declare
that we do not reach an assignment of error because another
issue renders consideration of the issue unnecessary, moot,
or otherwise imprudent. See State v. Gilpin, 

, 

 (2021) (rejecting one assignment of error
without discussion while declining to reach a second assignment of error). No such language was included in Altabef I
to indicate that we did not fully consider defendant’s other
assignments of error.

         We acknowledge that this case has had an unusual
path. As detailed above, after we issued Altabef I, where we
rejected all but defendant’s OEC 403 argument without discussion, the state petitioned for review of that decision to the
Supreme Court, assigning error only to the OEC 403 aspect
of our decision. Defendant did not cross-petition for review
of our rejection of his remaining assignments. The Supreme
Court then vacated Altabef I and “remanded to the Court of
Appeals for reconsideration in light of” its trilogy of cases
addressing the OEC 403 issue. Altabef II, 

. The
Supreme Court’s ruling in Altabef II regarding the OEC 403
argument did not negate our rejection of defendant’s other
assignments of error in Altabef I.

         Because defendant did not cross-petition for review
of our rejection of his various assignments for consideration
in Altabef II, those issues were not before the Supreme Court
when it vacated and remanded Altabef I to us for reconsideration in light of Zavala, Mazziotti, and Baughman. Our
rejection of those assignments in Altabef I thus remained
the law of the case and they were not subject to retrial. See
250                                                       State v. Altabef

Lindland v. United Business Investments, 

, 328
n 1, 328, 

 (1984) (holding that, where the plaintiff did not cross-petition for review of our reversal of an
award for impairment of credit, that issue was not before
the Supreme Court and became the law of the case).
         Even if defendant were to argue that his relevant
assignments of error were somehow before the Supreme
Court when it decided Altabef II, the scope of the Supreme
Court’s limited remand to us for reconsideration “in light
of State v. Zavala …; State v. Mazziotti …; and State v.
Baughman” limited our consideration of other issues. All
three cases addressed errors under OEC 403. Defendant’s
assignments of error on other issues were not relevant to
our reconsideration under those cases. See Alexander v.
U.S. Tank & Construction Co., Inc., 

,

 (1994) (declining to consider arguments that
were beyond scope of remand after first appeal). We have
previously explained that when we remand for a trial court
to address a specific question, in so remanding, we reject,
“albeit implicitly,” unaddressed assignments of error put
before us in that first appeal. Whitlock v. Klamath Cty.
School District., 

, 

 (1999).
Similarly, even if we were to posit that the other assignments of error were somehow before the Supreme Court, its
remand to us was not to revisit all issues; the unaddressed
issues would have been implicitly rejected. In limiting our
reconsideration in Altabef II in light of recent cases, the
Supreme Court refrained from resurrecting defendant’s
unaddressed, unsuccessful assignments of error that were
not challenged on review. Those issues were no longer before
us, having already become final. And, to like effect, our
remand to the trial court did not provide an opportunity to
revisit the issues in the trial court.
         For sound reasons, the law of the case precludes
defendant from raising legal issues rejected in his earlier
appeal—specifically, the second through fourth assignments
of error here.3
    3
      If defendant sought to argue that there has been a change in the law since
our decision or that we misread or failed to address precedent, the avenue to do
so would have been to request that we reconsider and overturn our ruling in his
previous appeals on a basis supplied in ORAP 6.25.
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         In conclusion, the trial court did not err in admitting the challenged evidence of prior acts. And, we do not
revisit assignments of error previously rejected.
        Affirmed.