State v. White

                                306

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
         Submitted May 31, vacated and remanded July 26, 2023


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
           CHARLES ALEXANDER WHITE II,
                  Defendant-Appellant.
             Josephine County Circuit Court
                  20CR25957; A175787


   Brandon S. Thueson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Vacated and remanded.
Nonprecedential Memo Op: 

 (2023)                           307

            POWERS, J.

         Defendant appeals from a judgment convicting him
of two counts of first-degree assault, ORS 163.185, and two
counts of attempted first-degree assault. On appeal, defendant raises four assignments of error, the last three of which
are now moot. In his first assignment of error, defendant
argues that the trial court erred by declining to conduct
OEC 403 balancing before admitting evidence of defendant’s prior convictions for impeachment purposes under
OEC 609(1)(a). The state concedes that, despite its position
to the contrary, State v. Aranda, 

, 

, rev allowed, 

 (2022), controls this case and,
therefore, balancing is required. We agree with the parties’
arguments that Aranda controls and, accordingly, we vacate
and remand for further proceedings.

        We review whether the Due Process Clause
requires OEC 403 balancing in the context of impeachment
under OEC 609(1)(a) for errors of law. Aranda, 

.

         Defendant fired a handgun at a vehicle with four
passengers, injuring two of them. He was charged with four
counts of attempted first-degree murder, two counts of first-degree assault, four counts of unlawful use of a weapon, and
one count of felon in possession of a firearm. Defendant testified on his own behalf before the jury. Prior to his testimony,
the state filed a motion in limine to admit evidence of defendant’s prior convictions under OEC 609(1)(a), including convictions for unlawful delivery and possession of a controlled
substance, felon in possession of a firearm, and attempted
murder.1 In response to the state’s motion, defendant asked
the court to apply OEC 403 balancing to determine if the
probative value of that evidence substantially outweighed

   1
       OEC 609(1)(a) provides:
       “(1) For the purpose of attacking the credibility of a witness, evidence
   that the witness has been convicted of a crime shall be admitted if elicited
   from the witness or established by public record, but only if the crime:
       “(a) Was punishable by death or imprisonment in excess of one year
   under the law under which the witness was convicted[.]”
308                                                          State v. White

the risk of unfair prejudice.2 The court declined to do so, and
evidence of those convictions was admitted.
         On appeal, citing Aranda, defendant argues that
the court’s refusal to conduct a balancing under OEC 403
was a violation of his due process rights. In that case, we
concluded that, due to the risk of prejudice stemming from
the introduction of prior convictions, federal due process
requires that the trial court, if requested by the defense,
must determine whether the probative value of such convictions is substantially outweighed by the risk of unfair prejudice, viz., conduct OEC 403 balancing. 

. The
state concedes that, under Aranda, the trial court should
have conducted OEC 403 balancing but contends that the
failure to do so was harmless.
         Consistent with Aranda, which was decided after
the trial court’s decision in this case, we conclude that the
court erred by failing to engage in OEC 403 balancing.
Further, and also consistent with Aranda, we vacate and
remand the case to allow the trial court to conduct the
required balancing and therefore decline to reach the state’s
argument that the error was harmless.
       Finally, defendant’s last three assignments of error
were withdrawn after the trial court entered an amended
judgment. See State v. Porter, 

, 

 (2021) (noting that an amended judgment can moot
assignments of error by resolving issues raised by them).
          Vacated and remanded.




   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.”