State v. Antonio

778                September 5, 2024             No. 636

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                 HENRY ANTONIO,
                 Defendant-Appellant.
             Klamath County Circuit Court
                 18CR56696; A177964

  Alycia E. Kersey, Judge.
  Submitted January 9, 2024.
   Gregg Aaron Myers and The Appellate Law Firm filed
the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
Cite as 

 (2024)                             779

        HELLMAN, J.
         In this criminal appeal, defendant seeks reversal of
convictions for four counts of first-degree unlawful sexual
penetration, ORS 163.411, and four counts of first-degree
sexual abuse, ORS 163.427. In a single assignment of error,
defendant asserts that the trial court erred when it denied
his motion to exclude three sections of a recorded forensic
interview of his 11-year-old daughter because the trial court
failed to conduct OEC 403 balancing. Those sections of the
interview referred to defendant’s verbal and physical abuse
of his daughter and her family members. The state contends
that defendant did not preserve his argument that the trial
court had to provide additional explanation in addressing
his OEC 403 arguments. In addition, the state argues that,
in context, the trial court’s ruling demonstrates that it did
engage in OEC 403 balancing. We reverse and remand.
         Preservation. To preserve a claim for appellate
review, a party must “provide the trial court with an explanation of [their] objection that is specific enough to ensure
that the court [could] identify its alleged error with enough
clarity to permit it to consider and correct the error immediately.” State v. Vanornum, 

, 

(2013) (internal quotation marks omitted); see also State v.
Skotland, 

, 

 (2024) (explaining
that “the winds of preservation can be gauged by looking
to the weathervane of trial court surprise: Would the trial
court be taken aback to find itself reversed on this issue, for
this reason?” (emphasis in original)). Under that standard,
defendant preserved his claim. Defendant’s pretrial motion
cited OEC 403 as a ground for excluding the first and third
challenged sections. Defendant’s motion was noted on the
record. In addition, during the motion hearing, defendant
made an OEC 403 argument with regard to the second and
third challenged sections, describing them as “highly prejudicial,” asserting that they could cause “a confusion of the
issues,” and asserting that the third section was cumulative
of the second section. Finally, the state explicitly requested
that the court engage in OEC 403 balancing for the three
sections. The trial court considered the state’s request and
declined to engage in OEC 403 balancing. The trial court
780                                             State v. Antonio

determined that the statements were admissible as relevant to the issue of delayed reporting. We conclude that
defendant’s OEC 403 challenges to the three sections of the
interview were sufficiently presented to the court so that
the court had the opportunity to “consider and correct the
error.” Vanornum, 

.
         Merits. We review for legal error whether a trial
court properly applied the OEC 403 balancing test. State
v. Brumbach, 

, 

 (2015),
rev den, 

 (2016). 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.” To determine whether evidence is admissible
under OEC 403, a trial court should engage in a four-step
inquiry:
      “ ‘First, the trial judge should assess the proponent’s
   need for the … evidence. In other words, the judge should
   analyze the quantum of probative value of the evidence and
   consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial
   the evidence is, to what extent the evidence may distract
   the jury from the central question whether the defendant
   committed the charged crime. The third step is the judicial
   process of balancing the prosecution’s need for the evidence
   against the countervailing prejudicial danger of unfair
   prejudice, and the fourth step is for the judge to make
   his or her ruling to admit all the proponent’s evidence, to
   exclude all the proponent’s evidence or to admit only part of
   the evidence.’ ”
State v. Alvarado, 

, 

 (2021)
(quoting State v. Mayfield, 

, 

(1987)).
         Although the Mayfield factors are not “a checklist
that trial courts must mechanically tick off on the record or
risk reversal,” State v. Anderson, 

, 

 (2018), it is reversible error not to “engage in a weighing
process at all.” 

 (internal quotation marks omitted).
Here, the trial court admitted the statements because they
were relevant to the issue of delayed reporting. However, the
Cite as 

 (2024)                              781

trial court did not engage in OEC 403 balancing because it
determined that the OEC 403 balancing requirement only
applied to challenges to prior bad acts evidence. But a trial
court’s responsibility to engage in OEC 403 balancing is not
limited to prior bad acts evidence. See OEC 403. The record
therefore reflects that the trial court was operating under
an incorrect understanding of the law, and that the trial
court committed legal error by not engaging in the required
OEC 403 balancing.
         Harmless error/remedy. Having determined that
the trial court committed legal error, we next evaluate
whether that error was harmless. An error is harmless
when there is “little likelihood” that it affected the verdict.
State v. Davis, 

, 

 (2003). Based on
the record here, a trial court that engaged in OEC 403 balancing could decide either to exclude or admit the evidence.
As we recognized in State v. Cave, 

, 

 (2022), “[w]here either admitting or excluding the
challenged evidence under OEC 403 falls within the range
of permissible outcomes, we cannot say that the trial court’s
error was harmless.” Thus, we remand to the trial court to
conduct the OEC 403 balancing in the first instance, and
to thereafter determine whether to reenter the judgment
or whether a new trial is necessary and appropriate. See
State v. Brown, 

, 

 (2017),
rev den, 

 (2018) (“[U]nder [State v. Baughman,

, 

 (2017), abrogated in part on
other grounds by State v. Jackson, 

, 

(2021)], the appropriate remedy for the trial court’s failure
to balance under OEC 403 is a limited remand, rather than
a new trial.”).
        Reversed and remanded.