State v. Holt

279 Or.App. 663

381 P.3d 897

State of Oregon, Plaintiff–Respondent,

v.David Henry Holt, Defendant–Appellant.

A154052

Court of Appeals of Oregon.

Argued and submitted February 26, 2015.

July 27, 2016

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Alice S. Newlin, Deputy Public Defender, Office of Public Defense Services. On the supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN, P.J.

In this criminal case, defendant appeals a judgment convicting him of two counts of sexual abuse in the third degree, ORS 163.415, for conduct involving a 16–year–old girl.¹ He challenges the trial court's denial of his motion in limine to exclude evidence of his prior conduct toward the victim. In light of the Supreme Court's decision in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), defendant argues that the trial court erred in failing to balance the probative value of the evidence against its potential for unfair prejudice before admitting it. We conclude that defendant preserved that argument, that the trial court erred in failing to conduct balancing before admitting the evidence, and that the error was not harmless. Accordingly, we reverse and remand for a new trial.

Defendant was charged with the crimes noted above for kissing the victim, a friend of his daughter, during a sleepover. Defendant moved in limine to exclude evidence that defendant had previously kissed the victim, snuggled with her, lain with her on the couch, talked to her on the phone, and asked her for photographs. Defendant's motion included an assertion that he was relying on OEC 403² and a quotation from State v. Mayfield , 302 Or. 631, 644, 733 P.2d 438 (1987) :

“[A] finding of logical relevance of uncharged misconduct evidence does not guarantee its admission. Evidence law demands not only logical relevance but also that the probative value of the evidence not be substantially outweighed by the danger of unfair prejudice as set forth in OEC 403. Evidence is prejudicial under OEC 403 if it tempts the jury to decide the case on an improper basis[.]”

At a pretrial hearing, the state argued that the evidence was admissible to show defendant's “sexual propensity toward [the] victim” under the reasoning set out in State v. McKay , 309 Or. 305, 308, 787 P.2d 479 (1990). Defendant argued that the evidence was not relevant and the court rejected that argument. Defendant did not reiterate his request for OEC 403 balancing, and the court admitted the evidence without conducting balancing. The jury convicted defendant, and this appeal followed.

After this case was argued, the Supreme Court decided Williams, in which it held that “the legislature intended OEC 404(4)^{[3 ]}to supersede OEC 404(3)^{[4 ]}in criminal cases, except, of course, as otherwise provided by the state or federal constitutions.” 357 Or. at 15, 346 P.3d 455. The court held that “propensity evidence is relevant in child sexual abuse cases to show that a defendant committed the charged acts.” State v. Turnidge , 359 Or. 364, 432, 374 P.3d 853 (2016) (Turnidge ) (discussing Williams ). And it decided that, “in child sexual abuse prosecutions where the state offered prior bad acts evidence to prove that the defendant had a propensity to sexually abuse children, due process ‘at least requires that, on request, trial courts determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice.’ ” Turnidge , 359 Or. at 431 (quoting Williams , 357 Or. at 19, 346 P.3d 455 ).

As noted above, in light of Williams, defendant asserts on appeal that the trial court erred in failing to balance the probative value of the evidence against the risk of unfair prejudice. The state responds that defendant did not preserve any request for balancing and, alternatively, that the balancing required by due process is narrower than OEC 403 balancing and would not require exclusion of the evidence at issue here. We conclude that defendant preserved his request for balancing by raising it in his motion in limine and that the trial court erred in failing to conduct the requested balancing. Under our post-Williams case law, the required balancing is OEC 403 balancing. Accordingly, we reverse and remand for a new trial.

We begin with preservation. As the Supreme Court has explained,

“the rule of preservation ‘gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.’ Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637 (2008). The rule also ensures fairness to opposing parties, by requiring that ‘the positions of the parties are presented clearly to the initial tribunal’ so that ‘parties are not taken by surprise, misled, or denied opportunities to meet an argument.’ Davis v. O'Brien , 320 Or. 729, 737, 891 P.2d 1307 (1995).”

State v. Walker , 350 Or. 540, 548, 258 P.3d 1228 (2011). Rather than relying on inflexible rules or any “neat verbal formula,” the Supreme Court has instructed us to evaluate preservation on a case-by-case basis, paying “attention to the purpose of the rule and the practicalities it serves.” Id. In light of those instructions, our task here is to decide whether defendant's assertion in his motion in limine that he was relying on OEC 403, coupled with his quotation from Mayfield explaining OEC 403 balancing, clearly presented his position to the trial court such that the state had the opportunity to meet the argument and the trial court had the opportunity to consider and rule on it.

In general, a party does not need to reraise at trial an objection that has been litigated and ruled on pretrial. State v. Pitt , 352 Or. 566, 574, 293 P.3d 1002 (2012). Moreover, where a defendant raises an argument in a pretrial motion, “the fact that [the] defendant did not ‘reiterate’ her argument at the hearing is not dispositive.” Walker, 350 Or. at 550, 258 P.3d 1228 ; see also Maxfield v. Nooth , 278 Or.App. 684, 687, 377 P.3d 650, 2016 WL 3197410 (2016) (“As the Supreme Court has explained, for preservation purposes, a party ordinarily need not reiterate orally the arguments that it has made in writing, and also need not renew those arguments after the court has made its ruling. Rather, the question ‘is whether a party provides sufficient information to enable opposing parties to meet an objection and the trial court to avoid error.’ ” (Internal citation omitted; quoting Walker , 350 Or. at 550, 258 P.3d 1228.)).

That is true even where the court does not specifically address the unreiterated argument. For example, in Walker, the trial court did not address the argument that the defendant sought to raise on appeal, which involved the scope of a search authorized by a warrant. We held that the defendant had failed to preserve the argument, which had been briefed pretrial, in part because she “never developed or reiterated” her argument at the hearing on her motion to suppress evidence and she “never took issue with the trial court's failure to address [the] matter[ at the hearing].” State v. Walker , 234 Or.App. 596, 607, 229 P.3d 606 (2010), aff'd on other grounds , 350 Or. 540, 258 P.3d 1228 (2011).

The Supreme Court disagreed with our preservation analysis. It first explained:

“This court has never required that each and every argument that has been asserted in writing must be repeated orally in court in order for the argument to be preserved. See, e.g. , State v. Roble–Baker , 340 Or. 631, 639–40, 136 P.3d 22 (2006) (rejecting contention that, because the defendant did not repeat all contentions raised earlier, those not repeated were not preserved).”

Walker , 350 Or. at 550, 258 P.3d 1228. The court also rejected our reliance on the defendant's failure to take issue with the trial court's omission. It explained that “the fact that [the] defendant did not take issue with the trial court's failure to address her argument likewise is not controlling. Once a court has ruled, a party is generally not obligated to renew his or her contentions in order to preserve them for the purposes of appeal.” Id. (internal quotation marks omitted).

Thus, our consideration of whether an argument presented in a pretrial motion is preserved depends only upon whether, under all of the circumstances, the argument was presented clearly enough to serve the purposes of preservation. It does not depend, as a categorical matter, on whether the defendant reiterated the argument at a hearing or whether, if the trial court failed to address the argument, the defendant took issue with the court's failure to do so. Id. at 549–50, 258 P.3d 1228 ; see also State v. Nelson , 246 Or.App. 91, 99, 265 P.3d 8 (2011) (“The fact that [the] defendant made his OEC 412 argument in his memorandum but did not orally repeat that argument at the hearing does not demonstrate that the argument was either waived or not preserved. * * * Nor was [the] defendant required to take issue with the trial court's failure to address his argument.”); accord State v. Parnell , 278 Or.App. 260, 266–67, 373 P.3d 1252 (2016) (where the defendant raised a broad and ambiguous argument in his motion and, at the hearing, focused entirely on one possible understanding of the argument, the defendant did not preserve an alternative argument that could have been encompassed by the motion, because “a fair reading of the record shows that [the] defendant did not put the state or the trial court on notice” of the alternative argument).

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