State v. Levasseur ( 2021 )

733
On respondent’s petition for reconsideration filed April 14; reconsideration
allowed, former opinion (309 Or App 745, 483 P3d 1167) clarified and adhered to
as clarified June 30, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RICKY ALLEN LEVASSEUR,
Defendant-Appellant.
Lane County Circuit Court
16CR73224; A166406
489 P3d 630
Clara L. Rigmaiden, Judge.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, for petition.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
PER CURIAM
Reconsideration allowed; former opinion clarified and
adhered to as clarified.
734 State v. Levasseur
PER CURIAM
The state petitions for reconsideration of our deci-
sion in State v. Levasseur, 309 Or App 745, 483 P3d 1167
(2021). In our original opinion, we relied upon State v.
Skillicorn, 367 Or 464, 479 P3d 254 (2021), and concluded
that the trial court erred in admitting evidence of defen-
dant’s prior crimes under OEC 404(3). We “[r]eversed and
remanded” the case. Levasseur, 309 Or App at 756. Noting
that a “reverse and remand” disposition can “give rise to
uncertainty * * * about the scope of the trial court’s author-
ity,” the state seeks reconsideration, asking only that we
clarify whether the trial court may conduct a limited hear-
ing on remand to determine whether the prior-crimes evi-
dence is admissible under OEC 404(4). We allow the state’s
petition to reconsider in order to clarify our disposition and
to avoid confusion.
When we “reverse and remand” a case to the trial
court, “we leave it to the trial court to determine and apply
the appropriate procedure and analysis[.]” State v. Sewell,
225 Or App 296, 298, 201 P3d 918, rev den, 346 Or 258(2009). That was our intent here. Because the trial court
admitted the prior crimes evidence under OEC 404(3), it did
not reach the issue of whether that evidence was admissible
under OEC 404(4), and we likewise declined to consider the
state’s OEC 404(4) arguments on appeal. Levasseur, 309 Or
App at 753. Our remand should not be interpreted as pro-
hibiting the trial court from analyzing OEC 404(4) admissi-
bility before deciding whether a new trial is necessary.1 We
leave that to the trial court to decide.
Reconsideration allowed; former opinion clarified
and adhered to as clarified.
1
We again express no view on whether the evidence would or would not be
admissible under OEC 404(4).