386 April 27, 2017 No. 24

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

RUSSELL ALLEN BAUGHMAN,

Respondent on Review.

(CC 111306; CA A152531; SC S064086)

On review from the Court of Appeals.*

Argued and submitted November 14, 2016.

Doug M. Petrina, Assistant Attorney General, Salem, 

argued the cause and filed the briefs for petitioner on review. 

Also on the briefs were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem, 

argued the cause for respondent on review. Eric Johansen, 

Deputy Public Defender, filed the brief. Also on the brief was 

Ernest G. Lannet, Chief Defender, Office of Public Defense 

Services.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Brewer, and Nakamoto, Justices, and Baldwin, 

Senior Justice, Justice pro tempore.**

WALTERS, J.

The decision of the Court of Appeals is affirmed. The 

judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings, consistently with this opinion.

______________

** On appeal from a judgment of the Clatsop County Circuit Court, Cindee 

S. Matyas, Judge. 276 Or App 754, 369 P3d 423 (2016).

** Flynn, J., did not participate in the consideration or decision of this case.
Cite as 361 Or 386 (2017) 387

Case Summary: Defendant was convicted of child sexual abuse. Defendant 

appealed to the Court of Appeals and argued that the trial court had erred in 

admitting evidence of uncharged acts of abuse by defendant of the same victim 

and an additional victim. Defendant contended that OEC 404(4) requires “traditional” OEC 403 balancing, not a narrower, “due process” balancing, and that 

the trial court had not correctly conducted that balancing with respect to the 

challenged other acts evidence. The Court of Appeals agreed with defendant and 

reversed defendant’s convictions and remanded the case for a new trial. The state 

petitioned for review, arguing that OEC 404(4) requires only due process balancing to determine whether the challenged evidence rendered the trial fundamentally unfair. In a unanimous opinion written by Justice Martha L. Walters, 

the Supreme Court affirmed the decision of the Court of Appeals. The Court 

held that, in a criminal action, when the state proffers evidence of uncharged 

acts, either to prove a defendant’s propensity to commit charged crimes under 

OEC 404(4), or for a nonpropensity purpose under OEC 404(3), and a defendant 

objects to the admission of that evidence, the trial court must conduct balancing 

under OEC 403, according to its terms, to determine whether the probative value 

of the challenged evidence is substantially outweighed by the danger of unfair 

prejudice. The Court concluded that, in this case, the trial court erred in finding 

that defendant’s abuse of the other victim was relevant for three nonpropensity 

purposes. The evidence was not relevant for any of the three purposes that the 

trial court identified, and the trial court therefore erred in assigning the evidence weight for those purposes in its OEC 403 balancing analysis. The Court 

remanded the case to the trial court to give that court the opportunity to consider 

new arguments from the parties about the purposes for which the other acts 

evidence is relevant and to correctly conduct the required balancing. The Court 

instructed the trial court to determine the nature of the proceedings that are 

necessary or appropriate on remand.

The decision of the Court of Appeals is affirmed. The judgment of the circuit 

court is reversed, and the case is remanded to the circuit court for further proceedings, consistently with this opinion.
388 State v. Baughman

WALTERS, J.

In this case we explain that, in a criminal action, 

when the state proffers evidence of uncharged acts, either 

to prove a defendant’s propensity to commit charged crimes 

under OEC 404(4),1

 or for a nonpropensity purpose under 

OEC 404(3),2

 and a defendant objects to the admission of 

that evidence, the trial court must conduct balancing under 

OEC 403,3

 according to its terms, to determine whether the 

probative value of the challenged evidence is substantially 

outweighed by the danger of unfair prejudice. We affirm the 

decision of the Court of Appeals, State v. Baughman, 276 Or 

App 754, 369 P3d 423 (2016), reverse the trial court’s judgment of conviction, and remand this case to the trial court 

for further proceedings.

I. BACKGROUND

Defendant was charged with 12 counts of child sexual abuse. The state alleged that defendant had abused the 

victim, B, in Clatsop County.

Before trial, the state filed a motion to permit it to 

introduce evidence that defendant also had sexually abused 

another child, A. The state argued that that evidence was 

relevant for a number of nonpropensity purposes under 

1 OEC 404(4) provides:

“In criminal actions, evidence of other crimes, wrongs or acts by the 

defendant is admissible if relevant except as otherwise provided by:

“(a) [OEC 406 through 412] and, to the extent required by the United 

States Constitution or the Oregon Constitution, [OEC 403];

“(b) The rules of evidence relating to privilege and hearsay;

“(c) The Oregon Constitution; and

“(d) The United States Constitution.”

2 OEC 404(3) provides:

“Evidence of other crimes, wrongs or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity 

therewith. It may, however, be admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.”

3 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.”
Cite as 361 Or 386 (2017) 389

OEC 404(3)—to establish defendant’s intent, motive, common plan or scheme, and the absence of mistake or accident. 

Defendant countered that, because his defense was not mistaken identity or lack of intent, but, instead, that the charged 

acts of abuse had not occurred, the proffered evidence was 

not relevant for a nonpropensity purpose. Further, defendant argued, even if the evidence was minimally relevant, 

its probative value was substantially outweighed by the 

danger of unfair prejudice and it was therefore inadmissible 

under OEC 403.

Both A and B testified at the hearing on the state’s 

motion. B testified that, when she was about five years old, 

defendant had entered into a relationship with her mother 

and moved into their family home in Umatilla County. 

Defendant began to sexually abuse B when she was seven 

years old and still living in Umatilla County. The abuse 

began with sexual touching, and, by the time B was 12 and 

living in Clatsop County, defendant had begun to abuse her 

“over and over again[,] repeatedly.” B testified that defendant had touched her sexually, forced her to touch him sexually, and, in Clatsop County, repeatedly had forced her to 

have intercourse with him.

A, the second child, testified that defendant’s abuse 

of her also had occurred while defendant was in a relationship with her mother and living with them in their family home. A was in fifth grade when the abuse began. The 

abuse, including the sexual touching of both defendant’s and 

A’s sexual or intimate parts, had continued until she was 13 

or 14 years old.

After the hearing, the trial court issued a letter 

opinion. The court agreed with the state that defendant’s 

abuse of A was relevant to prove defendant’s “identity, 

intent and to bolster the credibility of the victim,” and was 

admissible under OEC 404(3). With respect to the issue of 

intent, the court explained that it had conducted an analysis under State v. Johns, 301 Or 535, 555-56, 725 P2d 312 

(1986), and determined, among other things, that defendant’s acts against A were similar to his acts against B, and 

that the evidence about A was being offered for a nonpropensity purpose, was not “overly inflammatory,” and could be
390 State v. Baughman

presented without undue confusion, distraction, or unreasonable delay.

Later, but also before trial, the state filed a written motion to permit it to introduce evidence of defendant’s 

uncharged acts of sexual abuse against B in Umatilla 

County. The state asserted that that evidence would “allow 

the jury to see a clear, cohesive picture of how defendant 

perpetuated the abuse for which he ha[d] been indicted 

in Clatsop County.” That evidence, the state represented, 

included the acts of abuse to which B had testified at the 

prior hearing and also the fact that defendant had told B 

that, if she ever told anyone about the abuse, he would hurt 

her, and that he had been physically abusive to her.

Defendant opposed the state’s motion and asserted 

that it was untimely and required a hearing. The trial court 

responded that it had assumed, from the prior hearing, that 

the evidence of the uncharged abuse of B would be admitted 

to explain to the jury “the path leading up to” the charged 

crimes, but that the evidence also was admissible for the 

same reasons that the court had articulated in permitting 

the evidence of defendant’s abuse of A.

At trial, both A and B testified consistently with 

their pretrial testimony. At the close of evidence, the court 

instructed the jury that it could consider the uncharged 

abuse of A only as evidence of defendant’s intent in abusing B. The court did not give the jury a limiting instruction regarding the purposes for which it could consider the 

uncharged abuse of B.

The jury convicted defendant of eight of the 12 

charges. Defendant appealed to the Court of Appeals and 

argued that the trial court had erred in admitting the evidence of the uncharged abuse of both A and B as nonpropensity evidence under OEC 404(3). While the case was pending before that court, this court decided State v. Williams, 

357 Or 1, 346 P3d 455 (2015).

In Williams, this court considered the interplay 

between three evidentiary rules: OEC 404(3), OEC 404(4), 

and OEC 403. OEC 404(3) makes other acts evidence 
Cite as 361 Or 386 (2017) 391

inadmissible to prove a defendant’s character or propensity 

to commit the charged crime. It provides:

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that 

the person acted in conformity therewith. It may, however, 

be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident.”

OEC 404(3).

OEC 404(4) was enacted after OEC 404(3). It makes 

relevant other acts evidence admissible in criminal actions, 

subject to specified exceptions. It provides:

“In criminal actions, evidence of other crimes, wrongs 

or acts by the defendant is admissible if relevant except as 

otherwise provided by:

“(a) [OEC 406 through 412] and, to the extent 

required by the United States Constitution or the Oregon 

Constitution, [OEC 403];

“(b) The rules of evidence relating to privilege and 

hearsay;

“(c) The Oregon Constitution; and

“(d) The United States Constitution.”

OEC 404(4).

In Williams, the court recognized the conflict 

between those two rules and held that the “legislature 

intended OEC 404(4) to supersede OEC 404(3) in criminal 

cases,” and to permit the admission of other acts evidence to 

prove a defendant’s propensity to commit a charged crime of 

sexual abuse. 357 Or at 15. The court also concluded, however, that OEC 404(4)(a) made the admission of such evidence subject to specified evidentiary rules, including OEC 

403. Id. at 19. OEC 403 permits a court to exclude relevant 

evidence if its probative value is substantially outweighed 

by the danger of unfair prejudice. It 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 
392 State v. Baughman

jury, or by considerations of undue delay or needless presentation of cumulative evidence.”

OEC 403. In Williams, the court reasoned that OEC 404(4)(a)

made OEC 403 applicable “to the extent required by the 

United States Constitution,” and concluded that, “in a prosecution for child sexual abuse, the [United States Supreme] 

Court would hold that subjecting proffered ‘other acts’ evidence to OEC 403 balancing is a due process requirement.” 

Id. at 15-18. That balancing, the court explained, was balancing to “determine whether the probative value of the 

evidence is outweighed by the risk of unfair prejudice.” Id. 

at 19. The court expressly reserved, however, the question 

whether the required balancing was “traditional,” or “subconstitutional,” OEC 403 balancing, or some other, more 

limited, “due process” balancing. Id. at 19 n 17.4

In light of this court’s decision in Williams, the parties in this case filed supplemental briefs in the Court of 

Appeals. Considering OEC 404(4) to be the operative evidentiary rule, the parties squared off about whether the 

balancing that OEC 404(4) requires is “traditional” balancing under OEC 403, or “due process” balancing, requiring 

the exclusion of other acts evidence only when its admission 

would render the trial fundamentally unfair and thereby 

violate due process.

The Court of Appeals agreed with defendant that 

OEC 404(4) requires “traditional” OEC 403 balancing and 

then took up the legal issue that defendant had raised in 

his initial opening brief about whether the trial court had 

correctly conducted that balancing. Baughman, 276 Or 

App at 764-65. As noted, the trial court had considered the 

uncharged abuse of A to be relevant for three nonpropensity purposes and had carried out the required balancing 

with those purposes in mind. The Court of Appeals determined that the challenged evidence was relevant for only 

one of those purposes—to prove defendant’s intent under 

the Johns analysis—but not for the other two purposes—to 

4 The court did not have to decide that question in Williams, because it determined that the trial court had correctly admitted the evidence. 357 Or at 23. 

Applying a more circumscribed, “due process,” balancing would not have made a 

difference in the result.
Cite as 361 Or 386 (2017) 393

prove identity and to bolster the victim’s credibility.5 Id. 

at 771. The court reasoned that evidence of defendant’s 

uncharged acts was not sufficiently novel or unique to be 

relevant to identity, id. at 768, and that “the purpose of bolstering the victim’s credibility is merely propensity by a different name,” id. at 772. Therefore, the court explained, the 

trial court had not correctly considered the “quantum of probative value of the evidence” when it conducted the required 

balancing under OEC 403 and had erred in admitting the 

other acts evidence. Id. (internal quotation marks omitted). 

The Court of Appeals reversed defendant’s convictions and 

remanded the case for a new trial. Id.

The state petitioned for review in this court, renewing its argument that the Court of Appeals was required 

to review the trial court’s admission of the challenged evidence, not to determine whether the trial court had correctly 

engaged in “traditional” balancing under OEC 403, but, 

instead, to determine whether the admission of that evidence rendered the trial fundamentally unfair and thereby 

violated due process. The state also asserted that, even if 

traditional balancing was what was required, we should 

remand for such balancing, not necessarily for a new trial. 

We allowed the state’s petition.

II. ANALYSIS

In this court, the state raises an issue that we 

expressly reserved in Williams—the nature of the balancing that must be conducted under OEC 403. To understand 

the state’s argument, a more complete review of this court’s 

opinion in Williams is necessary.

In Williams, the court began, as noted, by considering the relationship between OEC 404(3) and OEC 404(4). 

357 Or at 12. The court recognized the conflict in the two 

subsections and concluded that, in criminal actions, OEC 

404(4) supersedes OEC 404(3). Id. at 15. The court then 

considered the relationship between OEC 404(4) and OEC 

403 and concluded that OEC 404(4) makes the admission of 

5 The Court of Appeals did not discuss the other nonpropensity purpose on 

which the trial court had relied for admission of the uncharged abuse of B—to 

provide context for the evidence of the charged abuse of B.
394 State v. Baughman

other acts evidence subject to OEC 403 because the United 

State Constitution requires the application of that rule. Id. 

at 18-19. The court engaged in the reasoning that follows.

The common law precluded or limited the admission of other acts evidence to establish a defendant’s character and propensity to act accordingly. The general rule, 

as this court stated in State v. Baker, 23 Or 441, 442-43, 32 

P 161 (1893), was that “no enlightened system of jurisprudence” would permit the admission of such evidence:

“The general rule is unquestioned that evidence of a distinct crime unconnected with that laid in the indictment, 

cannot be given in evidence against the prisoner. Such evidence tends to mislead the jury, creates a prejudice against 

the prisoner, and requires him to answer a charge for the 

defense of which he is not supposed to have made preparation. And while, as Lord Campbell says, ‘it would be evidence to prove that the prisoner is a very bad man, and 

likely to commit such an offense’ (Reg. v. Oddy, 5 Cox C C 

210), under no enlightened system of jurisp[r]udence can a 

person be convicted of one crime on proof that he has committed another.”

When state and federal jurisdictions adopted rules 

to govern the admission of such evidence, those rules “often 

reflected that common-law tradition and precluded the 

admission of ‘other acts’ to prove propensity.” Williams, 357 

Or at 9. However, when Congress adopted FRE 413 and FRE 

414 in 1994, that changed “as to cases in which a defendant 

is charged with sexual assault or child molestation.” Id. at 

10. The federal rules of evidence now permit the admission 

of relevant other acts evidence in such cases, and federal 

courts were asked to interpret those rules and to decide, 

among other things, whether they are subject to FRE 403, 

a corollary to OEC 403, and whether they comport with due 

process. Id. at 10-11.

While those questions were pending in the lower 

federal courts, the Oregon Legislative Assembly adopted 

OEC 404(4), which, like FRE 413 and FRE 414, permits 

the admission of other acts evidence. Id. at 15. The Oregon 

Legislative Assembly recognized the unsettled state of federal law by expressly making OEC 404(4) subject to OEC 403 

“to the extent required by the United States Constitution.” 
Cite as 361 Or 386 (2017) 395

OEC 404(4)(a); Williams, 357 Or at 15-16. The legislature 

“deferred to the courts to determine whether the federal 

constitution requires the application of OEC 403,” and that 

was the question that was before the court in Williams:

“Because the United States Supreme Court is the final 

arbiter of federal constitutional requirements, we must 

endeavor to determine how that Court would decide the 

question that the parties present: Whether the Due Process 

Clause requires the application of OEC 403.”

Id. at 16.

To answer that question, the court looked first to 

federal court decisions that had addressed the constitutionality of FRE 413 and FRE 414. The courts that had considered the matter had held that evidence admitted under 

those rules remained subject to balancing under FRE 403 

and that, as a result, those rules did not violate the Due 

Process Clause. Id. at 11. In U.S. v. LeMay, 260 F3d 1018, 

1026 (9th Cir 2001), the court explained that,

“[a]s long as the protections of Rule 403 remain in place to 

ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial 

remains adequately safeguarded.”

That reasoning is consistent with the reasoning of 

the United States Supreme Court in Dowling v. United States, 

493 US 342, 352-54, 110 S Ct 668, 107 L Ed 2d 708 (1990). 

In Dowling, the defendant had argued that the admission 

of other acts evidence to prove identity under FRE 404(b) 

violated his right to due process because it created a constitutionally unacceptable risk that the jury would convict him 

on an improper basis. Id. at 352-53. The Court disagreed, 

concluding that “the trial court’s authority to exclude potentially prejudicial evidence adequately addresses this possibility.” Id. at 353.

The federal court decisions did not, however, answer 

the question before the court in Williams. They told the court 

only that an evidentiary rule that the federal courts deemed 

applicable and that required trial courts to balance the probative value and prejudicial effect of other acts evidence was 

sufficient to satisfy the Due Process Clause; they did not tell 

the court that such a rule was necessary.
396 State v. Baughman

Consequently, the court turned next to “historical 

practice” to determine whether OEC 403 is an evidentiary 

rule that is so fundamental that it is required by due process.6

 The court observed that, in “LeMay, [260 F3d at 1025,] 

the Ninth Circuit considered the ‘historical practice’ prohibiting the use of ‘other acts’ to prove the charged crime and 

concluded that ‘the general ban on propensity evidence has 

the requisite historical pedigree to qualify for constitutional 

status.’” Williams, 357 Or at 17. The court also thought it 

prudent, however, as the Ninth Circuit had in LeMay, to consider the principles that animate the Due Process Clause. 

Outlining those principles, the court said that

“the Supreme Court has explained that the admission of 

evidence that is so extremely unfair that it violates ‘fundamental conceptions of justice’ violates the Due Process 

Clause. United States v. Lovasco, 431 US 783, 790, 97 S 

Ct 2044, 52 L Ed 2d 752 (1977). The Supreme Court also 

has explained that ‘[t]he term ‘unfair prejudice,’ as to a 

criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring 

guilt on a ground different from proof specific to the offense 

charged.’ Old Chief v. United States, 519 US 172, 180, 117 S 

Ct 644, 136 L Ed 2d 574 (1997). In Old Chief, the Court recognized that such improper grounds include ‘generalizing 

a defendant’s earlier bad act into bad character and taking 

that as raising the odds that he did the later bad act now 

charged.’ Id. Although the Court was not deciding a constitutional issue in Old Chief, its discussion demonstrates how 

the Court characterizes the prejudice posed by ‘other acts’ 

evidence. As the Court recognized in Dowling, 493 US at 

352, the violation of due process that may result from such 

unfair prejudice is obviated by the application of a rule of 

evidence that permits a court to consider the risk of prejudice and exclude the evidence when appropriate.”

Id. at 18. Accordingly, the court concluded that, “in a prosecution for child sexual abuse, the [Supreme] Court would 

hold that subjecting proffered ‘other acts’ evidence to OEC 

403 balancing is a due process requirement” and, therefore, 

that the federal constitution required that, on request, trial 

6 See Montana v. Egelhoff, 518 US 37, 43, 116 S Ct 2013, 135 L Ed 2d 361 

(1996) (“Our primary guide in determining whether the principle in question is 

fundamental is, of course, historical practice.”).
Cite as 361 Or 386 (2017) 397

courts conduct OEC 403 balancing. Id. at 18-19. The court 

summarized its reasoning as follows:

“In such prosecutions, the historical record may not definitively establish that it is always improper to admit ‘other 

acts’ evidence to prove propensity, but it at least demonstrates a historical concern for the prejudice that such evidence poses and the importance that balancing plays in 

protecting against the harm that may result from its admission. In our view, the only way that a court can ensure that 

the admission of ‘other acts’ evidence is not unfairly prejudicial and a violation of ‘fundamental concepts of justice’ is 

to conduct OEC 403 balancing. We therefore hold that that 

balancing is required by the Due Process Clause. Even if 

due process does not categorically prohibit the admission 

of ‘other acts’ evidence to prove propensity in prosecutions 

for child sexual abuse, it at least requires that, on request, 

trial courts determine whether the probative value of the 

evidence is outweighed by the risk of unfair prejudice.”

Id.

In reaching that conclusion, the court set aside for 

another day the question that the state raises here; viz., 

whether the balancing under OEC 403 is “traditional” or 

“subconstitutional” balancing, or, as the state posits, “due 

process” balancing that precludes the admission of propensity evidence under OEC 404(4) only if its admission would 

render the trial fundamentally unfair as a matter of law. Id. 

at 19 n 7. Today is that day.

The state begins its argument with the text of OEC 

404(4), which, as noted, provides:

“In criminal actions, evidence of other crimes, wrongs 

or acts by the defendant is admissible if relevant except as 

otherwise provided by:

“(a) [OEC 406 through 412] and, to the extent 

required by the United States Constitution or the Oregon 

Constitution, [OEC 403];

“(b) The rules of evidence relating to privilege and 

hearsay;

“(c) The Oregon Constitution; and

“(d) The United States Constitution.”
398 State v. Baughman

Thus, OEC 404(4) provides that relevant other acts evidence is admissible except as otherwise provided by certain 

evidentiary rules, including, “to the extent required by the 

United States Constitution,” OEC 403.

The state contends that, in that quoted phrase, the 

word “extent” is synonymous with “degree.” Thus, the state 

argues, OEC 404(4)(a) makes OEC 403 applicable only to 

the degree that the federal constitution requires it; that is, 

when the evidence is so unfairly prejudicial that its admission would render a trial fundamentally unfair.

This court went a long way toward answering that 

argument when it decided, in Williams, 357 Or at 19, that 

OEC 404(4)(a) makes OEC 403 applicable, and OEC 403 

provides a different standard for determining the admissibility of evidence than the one for which the state argues. As 

noted, 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.”

OEC 404(4)(a) provides that relevant evidence is admissible except as provided by specified rules of evidence and 

provides that one rule—OEC 403—is included in that list 

of rules only to the extent that it—the rule—is required 

by the constitution. By referencing that rule, the legislature referenced the legal standard of admissibility that the 

rule sets forth, not another legal standard. The legislature 

did not make evidence admissible “to the extent required by 

the United States Constitution”; rather, it made evidence 

admissible except as otherwise provided by specified rules 

of evidence, including, if constitutionally required, OEC 403. 

Because this court decided, in Williams, that the application 

of OEC 403 is constitutionally required, the legal standard 

that that rule provides is the applicable standard.

Other context supports that interpretation. 

First, OEC 404(4)(a) makes the admission of other acts 

evidence subject to rules of evidence in addition to OEC 

403—OEC 406 through 412—and OEC 404(4)(b) makes 

the admission of other acts evidence subject to the rules 
Cite as 361 Or 386 (2017) 399

of evidence relating to privilege and hearsay. The legislature apparently intended that those rules apply by their 

terms, and it is likely that the legislature also intended 

that, if OEC 403 is applicable, it apply according to its 

terms.

Second, a different part of the statute, OEC 404(4)(d),

provides that relevant other acts evidence is admissible 

except as provided by “[t]he United States Constitution.” The 

state is correct that the Due Process Clause of the United 

States Constitution requires the exclusion of evidence that, 

if admitted, would render a trial fundamentally unfair. See 

U.S. v. Morena, 547 F3d 191, 194-97 (3d Cir 2008) (in defendant’s trial for felon in possession of a firearm, admission of 

evidence of defendant’s uncharged drug use was so prejudicial as to violate due process); McKinney v. Rees, 993 F2d 

1378, 1385-86 (9th Cir 1993), cert den, 510 US 1020 (1993) 

(where murder victim’s throat slit, evidence of defendant’s 

interest in knives so inflammatory and of so little relevance 

as to render trial fundamentally unfair in violation of due 

process). Consequently, other acts evidence that would render a trial fundamentally unfair must be excluded under 

OEC 404(4)(d), as a matter of law. But that does not mean 

that OEC 404(4)(a) incorporates that standard. In fact, the 

state’s interpretation of OEC 404(4)(a) to require exclusion of 

evidence only when exclusion would be required under OEC 

404(4)(d) would render OEC 404(4)(d) redundant, “a consequence that this court must avoid if possible.” Blachana, 

LLC v. Bureau of Labor and Industries, 354 Or 676, 692, 318 

P3d 735 (2014).

The state acknowledges as much, but contends 

that the legislature included paragraph (a) in OEC 404(4) 

to provide the court with a “procedural mechanism” to consider whether other acts evidence should be excluded as violative of due process. The problem with that argument is 

that OEC 403 is not a “procedural mechanism”; rather, it 

is, as noted, a legal standard by which the admissibility of 

evidence is determined. By referring to OEC 403, the legislature referred to the legal standard that it sets forth. Had 

the legislature intended to impose some other, narrower, 

“due process” standard for evaluating the admissibility of 

evidence, it would have set out that standard, or referred to 
400 State v. Baughman

the constitution as it did in OEC 404(4)(d); it would not have 

referred to OEC 403.

The state also cites, as context, this court’s decision 

in State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010), and 

contends that it forecloses any argument that OEC 404(4)(a) 

must be interpreted to permit ordinary balancing. We disagree. The state is correct that the defendant in Moore/Coen 

assumed that OEC 404(4) precluded balancing under OEC 

403 and challenged its constitutionality on that basis. The 

defendant argued that OEC 404(4) was unconstitutional on 

its face or as applied because it favored only the prosecution 

and made the conviction of a defendant more likely. Id. at 

387-88. The court rejected the defendant’s facial challenge 

because OEC 404(4) preserves “traditional standards of 

relevancy” and precludes admission of evidence that would 

“violate state and federal constitutional standards.” Id. at 

389. The court also rejected the defendant’s as-applied challenge because, in that case, the admission of other acts evidence for a noncharacter purpose—to establish an element 

of a crime—did not offend the constitution. Id. at 391-92. 

In reaching those conclusions, the court did not quarrel 

with defendant’s assumption about the applicability of OEC 

403, but neither did it adopt it. Nor did the court distinguish between OEC 403 balancing and some narrower form 

of “due process” balancing. See Williams, 357 Or at 19 n 17 

(explaining that Moore/Coen did not distinguish between 

“traditional” and “due process” balancing). Moore/Coen 

does not preclude an interpretation of OEC 404(4)(a) that 

requires a trial court to engage in balancing under OEC 403 

according to its terms.

The legislative history of OEC 404(4) also provides 

little, if any, support for the state’s interpretation of that 

rule. OEC 404(4) was part of Senate Bill (SB) 936 (1997). Id. 

at 14. The bill’s opponents understood SB 936 as eliminating 

the restrictions imposed by OEC 404(3) on the admission of 

prior acts evidence in criminal cases, and they expressed 

concern that the bill could be unconstitutional. Id. at 15 

(citing Tape Recording, Senate Committee on Crime and 

Corrections, SB 936, Mar 21, 1997, Tape 43, Side A (statement of Jim Arnesen, Oregon Criminal Defense Lawyers 

Association (OCDLA))). Mike Phillips, a member of the 
Cite as 361 Or 386 (2017) 401

Board of Governors of the Oregon State Bar, also testified 

that the bar had concerns about the provision of SB 936 that 

would become OEC 404(4). House Committee on Judiciary, 

Subcommittee on Criminal Law, SB 936, Apr 17, 1997, Tape 

88, Side A. Phillips stated that he believed that OEC 404(4) 

would have the effect that

“evidence of someone’s prior acts may be used to prove what 

their character is for the purpose of showing that they 

acted in conformance with that character now. That is, 

essentially, if you are a bad person[,] it is more likely you 

committed this crime. That repeals a part of the evidence 

law of the Anglo-American system that’s been in existence 

since 1695.”

Id. Special Counsel to the Attorney General Mark Gardner, 

who was involved in drafting SB 936, responded,

“There is a balancing test that is required under the U.S. 

Constitution. Mr. Phillips should review his constitutional 

law because that is required[,] that a trial judge balance 

the probative evidence versus the prejudicial effect before 

the judge constitutionally can admit evidence in a case. 

* * * What SB 936 does, it puts into statute the fact that we 

are still going to have a balancing test, because that’s what 

[OEC 403] presently requires.”

Id. at Tape 89, Side A (emphasis added). Like Gardner, Jim 

Arnesen, a representative of the OCDLA, understood that 

evidence introduced under OEC 404(4) would be subject to 

traditional OEC 403 balancing: “[T]he only limitation on 

keeping that evidence out when the state wants to offer it 

will be the Federal Constitution and Rule 403 with respect 

to prejudice.” Tape Recording, Senate Committee on Crime 

and Corrections, SB 936, Mar 21, 1997, Tape 43, Side A 

(statement of Jim Arnesen, OCDLA).

That history indicates that those involved in the 

drafting of SB 936 believed that OEC 403 would apply to 

ensure that OEC 404(4) would not violate the United States 

Constitution. It also evidences an assumption that OEC 403 

would be applied by trial courts to assess whether the probative value of other acts evidence is substantially outweighed 

by the danger of unfair prejudice, not to determine whether, 

as a matter of law, admission of such evidence would render 

the trial fundamentally unfair.
402 State v. Baughman

Considering the text, context, and legislative history of OEC 404(4), we are persuaded that, in enacting that 

rule of evidence, the legislature intended trial courts to conduct the balancing required by OEC 403 according to its 

terms. Under OEC 404(4)(a) and OEC 403, trial courts may 

exclude evidence, in the exercise of their discretion, when 

they determine that its probative value is substantially 

outweighed by the danger of unfair prejudice. See State v. 

Knight, 343 Or 469, 483, 173 P3d 1210 (2007) (explaining 

that court’s exclusion of evidence under OEC 403 requires 

exercise of discretion). Under OEC 404(4)(d), trial courts 

also must exclude evidence, as a matter of law, that would 

render a trial fundamentally unfair and violate the Due 

Process Clause. See State v. Rogers, 330 Or 282, 312, 4 P3d 

1261 (2000) (explaining that, when only one legally correct 

outcome exists, decision is legal in nature and not exercise of 

discretion). OEC 404(4)(a) and OEC 404(4)(d) thus provide 

two independent bases for excluding other acts evidence.7

That does not mean, however, that the balancing 

that a trial court conducts under OEC 403 will be devoid 

of due process considerations. As this court explained in 

Williams, it is the Due Process Clause that requires the 

application of OEC 403. 357 Or at 18. The common-law 

underpinnings of that rule, the Supreme Court’s explanation of the meaning of the term “unfair prejudice” in Old 

Chief, and its description of the role that balancing plays 

in Dowling all remind us that OEC 403 balancing must be 

conducted to preclude the admission of “concededly relevant 

evidence” that has the capacity “to lure the factfinder into 

declaring guilt on a ground different from proof specific to 

7 It is not entirely clear to us that “traditional” balancing and “due process” 

balancing are as different as the parties assume that they are. We recognize that 

“traditional” OEC balancing requires an exercise of discretion, Knight, 343 Or at 

483, and that the rule for which the state advocates would require exclusion of 

other acts evidence as a matter of law. However, both standards are intended to 

ensure a trial that is fundamentally fair. If a trial court were to determine, in the 

exercise of its discretion, that the probative value of other acts evidence was substantially outweighed by the danger of unfair prejudice, but, nevertheless, were 

to admit that evidence, that might well result in a trial that an appellate court 

would deem fundamentally unfair. We think it important to note that, as the 

state acknowledged at oral argument in this case, no court, state or federal, has 

distinguished between the balancing required under codified evidentiary rules 

and some narrower “due process” balancing.
Cite as 361 Or 386 (2017) 403

the offense charged.” Old Chief, 519 US at 180. That is why 

we said, in Williams, that,

“when ‘other acts’ evidence ‘goes only to character and there 

are no permissible inferences the jury may draw from it,’ it 

is more likely that the evidence will be excluded. Such evidence generally will have little or no cognizable probative 

value, and the risk that the jury may conclude improperly 

that the defendant had acted in accordance with past acts 

on the occasion of the charged crime will be substantial.”

357 Or at 20 (emphasis in original).8

III. APPLICATION

The final issues for our analysis in this case are 

whether the trial court erred in admitting other acts evidence, and, if so, the proper remedy on remand. As explained, 

the trial court analyzed the admissibility of the other acts 

evidence that the state proffered under OEC 404(3) and OEC 

403, and the Court of Appeals held that the trial court had 

erred with respect to the probative value that it assigned to 

that evidence. Baughman, 276 Or App at 771-72. On review, 

the state asks that we examine that evidence to determine 

whether it rendered the trial fundamentally unfair and 

does not independently argue that the Court of Appeals was 

wrong in its “traditional” OEC 403 analysis. However, the 

state argues, any remand to the trial court should be a limited remand for OEC 403 balancing and not necessarily for 

a new trial. To assess that argument, it is helpful to review 

the analytical framework that a trial court should use to 

assess the admissibility of other acts evidence.

In setting out that framework, it also is helpful to 

clarify what we meant when we said, in Williams, that, in 

criminal cases, OEC 404(4) supersedes OEC 404(3). 357 Or 

at 15. In criminal cases, OEC 404(4) makes other acts evidence admissible to prove a defendant’s character, subject to 

8 We caution that this court has suggested, but not yet decided, that the federal constitution may, as a matter of law, prohibit the admission of other acts 

evidence to prove propensity in a criminal case in which the defendant is charged 

with crimes other than child sexual abuse. See Williams, 357 Or at 17 (noting 

that, if defendant had been charged with crimes other than child sexual abuse, 

court might be persuaded that due process precludes the admission of other acts 

evidence).
404 State v. Baughman

specified rules of evidence and the state and federal constitutions. Consequently, OEC 404(4) supersedes the first sentence of OEC 404(3), which provides that “[e]vidence of other 

crimes, wrongs or acts is inadmissible to prove the character 

of a person in order to show that the person acted in conformity therewith.” (Emphasis added.) However, OEC 404(4) 

does not supersede the second sentence of OEC 404(3), 

which provides that other acts evidence “may be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” If other acts evidence is not proffered 

to prove a defendant’s character, but instead is offered for a 

nonpropensity purpose, then analysis under OEC 404(4) is 

unnecessary; the evidence “may be admissible” under the 

second sentence of OEC 404(3).

Thus, in State v. Turnidge, 359 Or 364, 440-42, 374 

P3d 853 (2016), this court began by considering whether the 

other acts evidence that the state adduced was relevant for 

a nonpropensity purpose under OEC 404(3)—there, as “true 

plan” evidence. After determining that it was, the court then 

turned to OEC 403 and considered whether the trial court 

had correctly conducted the balancing required by that rule. 

Id. at 442. The court saw no reason to consider whether the 

evidence also was admissible under OEC 404(4), id. at 433-

34, and affirmed the trial court’s ruling, id. at 445-46.

Trial courts also should follow that two-step analysis. When a party objects to the admission of other acts 

evidence, a trial court first should determine whether the 

proffered evidence is relevant for one or more nonpropensity 

purposes, under OEC 404(3). If it is, then the court should 

determine, at step two, whether the probative value of that 

evidence is substantially outweighed by the danger of unfair 

prejudice under OEC 403.9

 If the trial court determines 

that the evidence is relevant for a nonpropensity purpose 

under OEC 404(3) and admissible under OEC 403, then 

it need not determine whether the evidence also is admissible under OEC 404(4) and OEC 403. However, if a trial 

9 We do not decide, in this case, whether, in addition to objecting to the 

admission of such evidence, a party also must explicitly seek balancing under 

OEC 403. 
Cite as 361 Or 386 (2017) 405

court determines that proffered evidence is not relevant for 

a nonpropensity purpose, then it must determine whether 

that evidence nevertheless is otherwise relevant under OEC 

404(4) and, at step two, whether the probative value of the 

evidence is substantially outweighed by the danger of unfair 

prejudice, under OEC 403.

A trial court’s decision, at step one, about whether 

other acts evidence is relevant for a nonpropensity purpose, 

will have a significant effect on whether the trial court 

admits that evidence at step two. At one end of the spectrum, other acts evidence that is relevant for a nonpropensity purpose under OEC 404(3) generally will be admissible 

under OEC 403 as long as the particular facts of the case do 

not demonstrate a risk of unfair prejudice that substantially 

outweighs the probative value of the evidence. Williams, 357 

Or at 19. At the other end of the spectrum, when evidence 

is relevant only to prove a defendant’s character, more significant due process concerns are implicated, and, generally, 

the danger of unfair prejudice will substantially outweigh 

the probative value of the evidence. Id. at 20.

In this case, the trial court began correctly at step 

one of the analysis and considered whether the evidence of 

defendant’s uncharged abuse of A was relevant for a nonpropensity purpose under OEC 404(3). The court agreed 

with the state that the other acts evidence regarding A was 

relevant for three nonpropensity purposes—to prove identity and intent, and to bolster the credibility of the victim.10

Giving that evidence weight for that purpose, the court 

10 As noted, the trial court also admitted evidence of defendant’s uncharged 

abuse of B for the same three nonpropensity purposes. For the reasons that we 

explain in the text, those purposes are not relevant, nonpropensity purposes. 

However, with respect to B, the trial court also mentioned a fourth nonpropensity 

purpose for admitting the evidence—to establish context for the charged acts—

and the state argues before this court that that evidence is relevant for a fifth 

nonpropensity purpose—to prove that defendant had a sexual predisposition for 

the victim. See State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990) (holding prior 

acts evidence involving same victim admissible to “demonstrate the sexual predisposition this defendant had for this particular victim”). We express no opinion 

about whether the evidence of defendant’s uncharged abuse of B is relevant context or predisposition evidence, whether that evidence is correctly viewed as relevant for a nonpropensity purpose under OEC 404(3), or what conclusion the trial 

court might reach, on remand, in evaluating the admissilibility of that evidence 

under OEC 403. 
406 State v. Baughman

admitted it under OEC 403, and defendant appealed to the 

Court of Appeals.

An appellate court reviews a trial court’s determination of whether proffered other acts evidence is relevant 

for a nonpropensity purpose under OEC 404(3) for errors 

of law. See State v. Pitt, 352 Or 566, 582, 293 P3d 1002 

(2012) (trial court committed legal error in admitting what 

amounted to evidence of propensity for nonpropensity purposes). In contrast, an appellate court reviews a trial court’s 

determination of whether the probative value of the proffered evidence substantially outweighs the danger of unfair 

prejudice under OEC 403 for abuse of discretion. Knight, 343 

Or at 483-84.

In this case, the Court of Appeals correctly considered whether the trial court had committed a legal error in 

its determination of whether the proffered evidence was relevant for a nonpropensity purpose. The court reasoned that 

the challenged evidence was relevant for only one nonpropensity purpose—to prove defendant’s intent under a Johns 

analysis—and not for the other two nonpropensity purposes 

on which the trial court had relied. Baughman, 276 Or App 

at 770-72. In this court, the state does not argue that defendant’s abuse of A was relevant to prove defendant’s intent or 

for any other nonpropensity purpose. For the reasons that 

follow, we conclude that defendant’s abuse of A was not relevant for the three nonpropensity purposes that the trial 

court identified.

First, as the Court of Appeals held, under Pitt, 352 

Or at 576-78, the challenged evidence regarding A is neither 

relevant to show identity nor admissible for a nonpropensity 

purpose of bolstering the victim’s credibility. Baughman, 

276 Or App at 767-69. Like Pitt, this is not a case in which 

the state seeks to prove defendant’s identity based on modus 

operandi. 352 Or at 577. And, as in Pitt, an argument that 

the evidence is admissible to bolster the victim’s testimony 

is no more than a propensity argument by another name. Id. 

at 577-78.

Second, although the Court of Appeals considered 

the evidence of defendant’s abuse of A to be relevant to his 
Cite as 361 Or 386 (2017) 407

intent to abuse B under Johns, this court explained the limited application of Johns in Turnidge. Specifically, the doctrine of chances, on which Johns is based, does not apply in 

every case in which the state must prove that a defendant 

acted intentionally. 359 Or at 435-36. Rather, under the doctrine of chances, the admissibility of the evidence depends 

on the proposition that multiple instances of similar conduct 

are unlikely to occur accidentally. State v. Leistiko, 352 Or 

172, 182, 282 P3d 857 (2012). But, where a defendant does 

“not advance any sort of defense (such as inadvertence or 

self-defense) that customarily would be countered by a doctrine of chances theory of relevancy,” and the state does not 

offer other acts evidence “to prove ‘intent’ in the ‘absence 

of mistake’ sense of the term,” then the doctrine of chances 

is inapplicable, and other acts evidence is not admissible to 

prove a defendant’s intent on that basis. Turnidge, 359 Or at 

437.

Here, as in Turnidge, defendant did not raise mistake or inadvertence as a defense. Instead, defendant argued 

that the charged acts had not occurred. And, although other 

acts evidence can be relevant to a defendant’s intent on theories other than the doctrine of chances, id. at 436, the state 

does not advance any such theory in this case. We therefore 

conclude that the evidence of defendant’s abuse of A was not 

relevant for any nonpropensity purpose under OEC 404(3) 

and that the trial court erred in considering it for such 

purposes.

That error at step one of the analysis significantly 

affected the trial court’s decision at the second step of its 

analysis and the court’s admission of the challenged evidence. The reason, as noted, is that evidence admitted for a 

nonpropensity purpose generally is admissible under OEC 

403, while evidence admitted solely to prove a defendant’s 

character generally is not. The trial court erred, and, as the 

state recognizes, the trial court’s admission of that evidence 

was not harmless. We cannot conclude that “there is little 

likelihood” that the evidence that defendant not only sexually abused B, but also abused A, affected the jury’s verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (error 

requires reversal unless reviewing court can conclude that 
408 State v. Baughman

there was little likelihood that trial court’s ruling affected 

jury’s verdict).11

That does not resolve the final issue that the state 

raises, however. The state argues that, when this court 

determines that a trial court has committed a “procedural” 

error, such as that committed in this case, the proper remedy is first to allow the trial court correctly to conduct an 

appropriate analysis under OEC 404 and OEC 403. Then, 

if the court determines that challenged other acts evidence 

is admissible, a new trial will not be necessary. In the past, 

the state submits, this court has ordered similar limited 

remands to make unresolved determinations or to redo procedurally flawed determinations. For that proposition, the 

state cites State v. Paulson, 313 Or 346, 352-53, 833 P2d 

1278 (1992) (case remanded to trial court for evidentiary 

hearing on whether police officers received consent to enter 

apartment and whether, alternatively, evidence would have 

inevitably been discovered); State v. McDonnell, 310 Or 98, 

106-07, 794 P2d 780 (1990) (case remanded for evidentiary 

hearing to determine how prosecutor would have exercised 

judgment and discretion on basis of proper criteria and facts 

that existed at time he declined to enter into plea agreement); and State v. Probst, 339 Or 612, 629-30, 124 P3d 1237 

(2005) (case remanded to trial court for defendant to put 

on evidence establishing that absence of counsel resulted in 

involuntary guilty plea).

Defendant responds that, if we were to accept the 

state’s argument, we would be abdicating our role in determining whether a trial court’s error is harmless and ceding 

it to the trial court. Defendant contends that, when a trial 

court errs in analyzing other acts evidence and revises its 

analysis on remand, retrial always will be necessary. For 

instance, defendant asserts, if a trial court were to admit 

such evidence for a different purpose than it did in the 

11 The Court of Appeals considered the trial court’s error to be a violation of 

defendant’s due process rights under the United States Constitution. Baughman, 

276 Or App at 772. For that reason, the court applied the federal harmless error 

test and determined that it could not confidently say that the error was harmless 

beyond a reasonable doubt. Id. Although we hold that the application of OEC 403 

is constitutionally required, we consider the trial court’s error to be a violation of 

that evidentiary rule, and we therefore apply our state harmless error test.
Cite as 361 Or 386 (2017) 409

original trial, that would affect the parties’ trial strategies 

and arguments, and the court’s jury instructions. In addition, defendant contends, if a trial court is given an opportunity to retrospectively review its prior decision to receive 

evidence, the court will have an incentive to make the same 

decision and avoid a new trial.

Defendant’s first argument is based on a misunderstanding of how an appellate court determines whether 

a trial court’s error in analyzing the admissibility of other 

acts evidence was harmless. When a trial court errs in 

determining that other acts evidence is relevant for a nonpropensity purpose, that decision necessarily affects the 

trial court’s weighing and admission of that evidence, and 

we, as an appellate court, can consider the effect of that evidence and whether its admission was harmless. What we 

cannot do, however, is determine what the trial court will do 

when it corrects such an analytical error on remand. This 

court’s decision in State v. Cartwright, 336 Or 408, 85 P3d 

305 (2004), demonstrates why remand for that purpose is 

necessary.

In Cartwright, this court held that the trial court 

had erred in failing to require the state to produce recordings that, the defendant contended, could contain impeaching witness statements. This court held that the trial court’s 

error was not harmless under Davis because the defendant 

did not have the benefit of those recordings and “crossexamining those witnesses on their prior statements could 

have been a very effective method of undermining the state’s 

case.” Id. at 420. Under those circumstances, the court said, 

it could not conclude that the trial court’s decision “had little 

likelihood of affecting the verdict.” Id. (citing Davis, 336 Or 

at 32). Rather than remanding for retrial, however, the court 

remanded for production of the recordings. Recognizing that 

the recordings might not contain impeaching material, the 

court granted the defendant an opportunity for review and a 

trial court hearing. After a hearing, the court said, the trial 

court could order a new trial, or, alternatively, make findings that “defendant’s inability to use the materials could 

not have affected the verdict,” and reinstate the original 

judgment of conviction. Id. at 421.
410 State v. Baughman

Similarly, in this case, we are not in a position to 

know whether the trial court will exclude or admit other acts 

evidence when it reconsiders the state’s proffer on remand. 

If the trial court excludes the evidence, then a new trial certainly will be necessary. If, however, the trial court again 

admits the evidence, then the question whether a new trial 

is required is more difficult.

Defendant is correct that the purposes for which a 

trial court admits other acts evidence may affect the parties’ 

trial strategies and arguments, and the court’s jury instructions, and, therefore, that a new trial may be required even 

if evidence previously admitted is again received. Defendant 

also is correct that judges are human and may be influenced 

by their prior decisions and concerns for efficient judicial 

administration. But recognizing and nevertheless putting 

aside such concerns, and fairly assessing how to ensure a 

fair trial for all parties, is the daily stuff of our trial courts. 

In this circumstance, we think it best to leave it to those 

courts to determine, on a case-by-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. A trial court’s decision 

about the appropriate proceedings on remand will depend, 

not on whether the trial court’s error in the original case 

was “procedural” or “substantive,” but on the facts of the 

original case, the arguments that the parties made, and 

the instructions that the court gave. Even if a trial court 

admits, on remand, the same evidence that it received in the 

original trial, the court may order a new trial if necessary or 

appropriate.

In this case, the trial court erred in admitting the 

evidence of defendant’s abuse of A for what it considered to 

be three nonpropensity purposes.12 On remand, the state 

12 The trial court also erred in admitting the evidence of defendant’s 

uncharged abuse of B for those three nonpropensity purposes. As noted, the trial 

court also admitted that evidence for a fourth purpose—to provide context—and 

the state argues that the evidence is relevant for a fifth purpose—to demonstrate 

defendant’s sexual predisposition for the victim. Because we reverse and remand 

for further proceedings, the trial court will have an opportunity to consider the 

parties’ arguments about whether that evidence is correctly viewed as relevant 

for a nonpropensity purpose under OEC 404(3), and to conduct balancing under 

OEC 403.
Cite as 361 Or 386 (2017) 411

will be entitled to make new arguments about the purposes, 

if any, for which proffered other acts evidence is relevant, 

and the trial court will have to determine whether the cognizable probative value of that evidence is substantially outweighed by the danger of unfair prejudice that it poses. No 

matter what decision the court makes, a new trial may be 

required to allow the parties to make new arguments, and 

the court to give new instructions, to the jury. For example, 

in the original trial, the trial court instructed the jury that 

it could consider defendant’s abuse of A to prove defendant’s 

intent in abusing B. If the court admits proffered evidence 

for a different purpose on remand, different instructions 

may be required. The trial court will be in the best position 

to assess the need for a new trial after it has determined 

the purposes for which the challenged evidence is relevant 

under OEC 404(3), and, if argued, under OEC 404(4), and 

whether to admit it. We leave it to the trial court to determine the nature of the proceedings that are necessary or 

appropriate on remand.

The decision of the Court of Appeals is affirmed. 

The judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings, consistently with this opinion.