State v. Wood

284                   January 2, 2025                 No. 13

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
               MONTANA JAMES WOOD,
                 Defendant-Appellant.
               Coos County Circuit Court
                 22CR45977; A180653

   Andrew E. Combs, Judge.
   Argued and submitted October 23, 2024.
   Daniel C. Silberman, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
   SHORR, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)                             285

           SHORR, P. J.
         Defendant appeals from a judgment of conviction for
one count of harassment, ORS 166.065. In his sole assignment of error, defendant contends that the trial court erred
in excluding evidence of a specific prior act of the victim’s
conduct. For the following reasons, we affirm.
         A full recitation of the facts would not benefit the
bench, the bar, or the public. Defendant was charged by information with one count of harassment under ORS 166.065
following an incident at a zoo where defendant pushed the
victim, his girlfriend’s father, causing the victim to fall to
the ground. At trial, to support his defense of self-defense,
defendant sought to introduce evidence that, approximately
17 years prior to the charged incident, the victim and his
then 13-year-old daughter had slapped each other. The trial
court first concluded that the evidence was not relevant
under OEC 401. It then further reasoned that any probative
value was substantially outweighed by the risk of distraction to the jury and unfair prejudice to the extent that the
jury might view the father as a child abuser in an incident
in the distant past. For that reason, the court also held that
the evidence was inadmissible under OEC 403. The jury
ultimately found defendant guilty of harassment.
         On appeal, defendant argues that the trial court
erred in excluding the evidence under OEC 401 and OEC
403.1 He contends that the trial court erred under OEC
403 because the probative value of the evidence was not
substantially outweighed by the risk of distraction and
unfair prejudice. He reasons that those risks were minimal.
Moreover, he maintains that the evidence was central to his
self-defense claim by supporting his reasonable belief in the
necessity of using force to defend himself, and he had significant need for the evidence because “[n]o other evidence at
trial explained why defendant would have reasonably feared
imminent violence from [the victim].”
         We “review the trial court’s ultimate determination
as to whether evidence is unfairly prejudicial under OEC 403
    1
      Because we conclude that the trial court did not abuse its discretion in
excluding the evidence, even if relevant, under OEC 403, we do not address defendant’s alternative argument that the evidence was also admissible under OEC 401.
286                                              State v. Wood

for abuse of discretion.” State v. Shaw, 

, 

 (2005). “In evaluating a trial court’s discretionary
ruling under OEC 403, our role is to assess whether the court’s
decision falls within the range of legally permissible choices.”
State v. Boauod, 

, 

 (2020).
         When a defendant raises the defense of self-defense,
specific instances of the victim’s prior acts of violence may
be admissible in certain circumstances pursuant to OEC
404(1) and OEC 405(2) as evidence of an essential element of
the defendant’s defense. See, e.g., State v. Lunow, 

, 

 (1994) (concluding that evidence
of a specific incident of the victim’s violent conduct against
the defendant was admissible to prove the reasonableness
of the defendant’s belief that he needed to defend himself).
However, under OEC 403, a trial court may nevertheless
exclude that evidence “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.” In determining whether evidence should be excluded
under OEC 403, a trial court should engage in the following
balancing test: (1) analyze the “probative value of the evidence and consider the weight or strength of the evidence,”
(2) “determine how prejudicial the evidence is,” (3) balance
the proponent’s “need for the evidence against the countervailing prejudicial danger of unfair prejudice,” and (4) make
a ruling regarding admission or exclusion of the evidence.
State v. Mayfield, 

, 

 (1987).
          In making its determination regarding the admissibility of the evidence, the trial court applied the OEC 403
balancing test set forth in Mayfield. The trial court first
determined that any probative value of the slapping incident
was low given that it occurred about 17 years ago, was not
personally witnessed by defendant, and involved different
parties such that it would give defendant no reason to think
that the victim hits adults or men. See State v. Turnidge
(S059155), 

, 

 (2016), cert den, 

 (2017) (explaining that evidence is less probative if it
is remote in time and lacks similarity to the charged crime);
State v. Terry, 

, 

 (2021)
Nonprecedential Memo Op: 

 (2025)              287

(concluding that evidence involving “a child in diapers” had
“little similarity to the charged conduct” which involved a
teenager, and therefore was “not highly probative”). Next, the
trial court found that the risk of unfair prejudice was substantial, as it risked portraying the victim as “a child abuser.”
On balance, the court concluded that the low probative value
of defendant’s evidence was substantially outweighed by the
risk that the jury would base its decision on a negative view
of the victim. State v. Naudain, 

, 

 (2021) (quoting State v. Lyons, 

, 

 (1996)) (“Evidence is unfairly prejudicial when it has an
‘undue tendency to suggest a decision on an improper basis,
commonly, although not always, an emotional one.’ ”).
         Based on our review of the record, we conclude that
the trial court did not abuse its discretion by excluding the
evidence under OEC 403. Because the slapping incident
occurred so long ago and involved parties with vastly different characteristics, the trial court could reasonably conclude that it would, at best, negligibly bolster defendant’s
self-defense claim. Moreover, the particular circumstances
of the slapping incident posed a substantial risk that the
jury would make a decision on an improper, emotional basis.
Therefore, although defendant claims to have significant
need for the evidence to explain his self-defense defense, the
trial court’s determination to exclude the evidence was not
an abuse of discretion. See State v. Alvarado, 

, 

 (2021) (holding that, despite state’s
claim that it had “a great need” for certain video evidence,
its “minimal probative value” was substantially outweighed
by its potential prejudicial effect).
          Moreover, any potential error was harmless. State
v. Davis, 

, 

 (2003) (evidentiary error
is harmless where there is “little likelihood that the particular error affected the verdict”). Exclusion of evidence of one
isolated incident that occurred approximately 17 years prior
where the victim and his child “slapped each other” had little likelihood of affecting the jury’s decision whether defendant acted in self-defense in a pushing incident between
defendant and an adult victim.
         Affirmed.