State v. Anderson

FLYNN, J.

Defendant appeals from a judgment of conviction for identity theft and second-degree theft. On appeal, he challenges the trial court’s decision to admit into evidence a video showing him being booked at the police station, over defendant’s objection that the video was unduly prejudicial. Defendant argues that the court erred by failing to make a record demonstrating that it balanced the probative value of the evidence against the danger of unfair prejudice, as required by State v. Mayfield, 302 Or 631, 733 P2d 438 (1987). We are persuaded that the record does not reflect that the court exercised the discretion that it is afforded under OEC 403 to determine whether the probative value of the evidence is substantially outweighed by other considerations, including the danger of unfair prejudice. We reverse and remand on that basis.¹

I. BACKGROUND

Defendant was convicted based on evidence that he stole an ATM card from a woman in whose home he was staying and that he then used the card to withdraw funds from the woman’s bank account. The evidence against defendant at trial included a photograph of a person using the stolen ATM card to withdraw funds from the owner’s bank account and a video of defendant being booked into jail while wearing clothing similar to the clothing worn by the person in the ATM photograph. Defendant argued as his theory of defense that another housemate stole and used the ATM card and that the ATM photograph was not sufficiently distinctive to identify the pictured person as defendant. The booking video, taken approximately 20 days after the date of the ATM theft, showed defendant at a police station following an arrest.

Defendant objected that the video should be excluded because its probative value was outweighed by the unfair prejudice that would flow from showing defendant in custody. Defense counsel added that showing this arrest video “becomes more problematic, because I think that” the video depicted defendant being brought into jail on a probation violation, rather than the charged crime. The state argued that the video was not prejudicial because it only showed the standard booking process that follows any arrest.

The court initially indicated that it wanted to view the video to “help [it] decide the balancing issue.” However, while the court watched the arrest video with counsel, the prosecutor emphasized that the video bore a date stamp of November 2, 2012, which the court understood to be a date several days earlier than the date of defendant’s arrest for the charged crimes. Immediately after that comment, the court advised the parties that it was admitting the video because “it’s relevant,” but that it planned to give the jury a cautionary instruction.²

II. ANALYSIS

A. The Trial Court’s Obligation to Conduct OEC 403 Balancing

In response to defendant’s objection that the video should be excluded as more prejudicial than probative, the trial court was required to conduct the balancing prescribed by OEC 403. See Mayfield, 302 Or at 645. That provision of the evidence code permits trial courts to exclude evidence that is relevant “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 403. Although we will review the trial court’s ultimate balancing determination for abuse of discretion, we do so only when the record reflects that the court consciously exercised that discretion. See State v. Pinnell, 311 Or 98, 112-13, 806 P2d 110 (1991) (court must engage in the “‘conscious process of balancing the costs of the evidence against its benefits’” as “‘a prerequisite to the exercise of discretion”’ (quoting Charles Alan Wright & Kenneth W. Graham, Jr., 22 Federal Practice and Procedure: Evidence § 5232, 263-64 (1978))); Mayfield, 302 Or at 647 (“[T]rial judges are granted broad discretion when findings are made on the record to back up this discretionary call.”). In ruling on a challenge to evidence based on OEC 403, “[t]he judge errs if the judge fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.” Mayfield, 302 Or at 645 (citing State v. Johns, 301 Or 535, 725 P2d 312 (1986)).

In Mayfield, the court prescribed an “‘approved method of analysis that should guide trial courts in their decision-making under OEC 403.’” State v. Mazziotti, 276 Or App 773, 778, 369 P3d 1200 (2016) (quoting State v. Borck, 230 Or App 619, 637, 216 P3d 915, adh’d to as modified on recons, 232 Or App 266, 221 P3d 749 (2009), rev den, 348 Or 291 (2010)). That prescribed method includes four basic steps: (1) “analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence”; (2) “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”; (3) balance those two factors; and (4) make a ruling to admit some, all, or none of the proponent’s evidence. Mayfield, 302 Or at 645. A trial court need not “expressly follow the Mayfield analysis,” but, rather, “meets the requirements of Mayfield if ‘the record establishes that, in deciding to admit [the evidence], the trial court considered the matters prescribed in Mayfield.'” State v. Corbin, 275 Or App 609, 616, 365 P3d 647 (2015) (quoting Borck, 230 Or App at 637 (citation and internal quotation marks omitted)). Appellate courts “examine whether the trial court properly applied the balancing test that OEC 403 prescribes for errors of law[.]” State v. Shaw, 338 Or 586, 614-15, 113 P3d 898 (2005).

B. The Ruling in this Case

Based on our review of the record in this case, we are persuaded that the record does not show that the court engaged in “the balancing test that OEC 403 prescribes.”³ See Shaw, 338 Or at 615. Rather, the court told the parties that it would admit the video because “it’s relevant.” Determining whether challenged evidence is “relevant” is a threshold inquiry, but it does not resolve any of the considerations that make up the balancing test that OEC 403 prescribes. The significance of a determination that evidence is “relevant” is addressed by OEC 402, which specifies that “[e]vidence which is not relevant is not admissible” but that “relevant” evidence is generally admissible. Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 401. However, “[e]vidence 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.” Mayfield, 302 Or at 644. Thus, describing evidence as “relevant” does not suggest OEC 403 balancing, because the purpose of OEC 403 is to determine when relevant evidence should be excluded.

Defendant’s objection was to the unfair prejudice from a video that showed defendant in custody. Regardless of whether the trial court initially planned to “decide the balancing issue,” the court did not address any of the considerations that defendant’s objection required the court to consider. Defendant argued that, “[j]ust as in trial” it is prejudicial for the jury to know that the defendant is in custody, and it would be unduly prejudicial for the jury to see defendant “with the walk of shame, handcuffs on, being taken to the jail.” See, e.g., State v. Washington, 355 Or 612, 627, 330 P3d 596, cert den,_ US _, 135 S Ct 685 (2014) (explaining that Oregon has long recognized that criminal defendants have a right “‘to appear free of physical restraints during a jury trial,”’ in part to protect the defendant’s right to an impartial jury, because “the use of physical restraints can impinge on the presumption of innocence to which a defendant is entitled” (quoting State v. Bowen, 340 Or 487, 489, 135 P3d 272 (2006), cert den, 549 US 1214 (2007))). The prosecutor responded that the video showed defendant wearing “very similar clothing” to the person in the ATM photo and would be highly probative. With respect to prejudice, the prosecutor acknowledged that letting the jury know that a defendant is in custody at the time of trial can be prejudicial but argued that the video would not be as prejudicial because “everybody has to get booked on charges.”

Yet the court’s ruling reflects no assessment of the “quantum of probative value” to showing defendant’s clothing at the time of the arrest. Nor does it reflect a determination of the extent to which the jury would observe that the video depicted defendant in custody or the extent to which that observation might improperly bias the jury. And it reflects no balancing of those competing factors. In other words, there is no record that the court “analyze [d] the quantum of probative value of the evidence” or determined the extent to which the video might “distract the jury from the central question whether the defendant committed the charged crime” and no indication that it balanced those countervailing considerations against each other. See Mayfield, 302 Or at 646. That is error.⁴

We recognize that we have described Mayfield’s balancing test as “a matter of substance, not form or litany” and have held that we look to whether the “totality of the attendant circumstances” shows that the trial court engaged in the balancing that Mayfield requires. See, e.g., State v. Conrad, 280 Or App 325, 330-31, 381 P3d 880 (2016). Indeed, in Conrad, we held that the court’s ruling satisfied Mayfield “given the totality of the attendant circumstances,” even though the court denied the motion by simply stating, “So that motion is * * * denied.” Id. at 331. But Conrad emphasizes that we considered it to be “the rare case,” in which we could conclude that the trial court satisfied Mayfield despite a “very thin record.” Id. at 332. We specifically cautioned that “the point oí Mayfield” is that “we can conduct meaningful review only when we can tell that the court exercised its discretion and how it did so” and that “[i]n many cases,” when a trial court fails “to articulate on the record, in the manner set forth in Mayfield, how it is exercising its discretion,” that failure “will preclude meaningful appellate review[.]” Id. at 331-32.

The record in this case differs from the record in Conrad in at least two important respects, both of which make this one of the “many cases,” in which the court’s failure to articulate its balancing of the Mayfield factors “preclude[s] meaningful appellate review[.].” 280 Or App at 332. First, among the circumstances that made Conrad a “rare case,” we emphasized that the defendant’s arguments regarding the challenged evidence were of “limited scope.” The defendant argued that videos showing interviews with his alleged victims were prejudicial only because the jury might place undue emphasis on video evidence during its deliberations. Id. He argued that this prejudice outweighed a probative value that he contended was “low” because the videos were not conducted under oath and because the victim’s answers were elicited by interviewers. Id. at 331. In other words, the full extent of the potential “danger of unfair prejudice” in Conrad could be resolved by the court answering “yes” or “no” to the defendant’s premise that the jury would place undue emphasis on videos during deliberations. And the full extent of his challenge to the probative value of the videos would, similarly, be resolved by the court answering “yes” or “no” to the defendant’s generic premise that interview answers are of low probative value when the interview is not conducted under oath. That “limited” focus permitted us to infer from the record as a whole that the court consciously engaged in the Mayfield analysis before rejecting the defendant’s objection. Id. at 332.

Here, by contrast, the trial court could balance the “quantum of probative value” of the video against the risk that the video would “distract the jury from the central question” only after evaluating where each consideration fell on a spectrum. To “analyze the quantum of probative value” of the video, the court first had to assess the extent to which the clothing that defendant wore in the video resembled the clothing worn in the ATM photo and the extent to which unique characteristics of the clothing made any resemblance significant. Similarly, in order to determine how prejudicial the evidence was, the court first had to assess the extent to which the jury would observe that the video depicted defendant in restraints or appreciate that the video meant defendant had been arrested more than once. Only after making those determinations could the court balance the weight of the evidence against the risk of unfair prejudice. None of those determinations appear on the record, and, without them, we cannot determine that the court exercised its discretion in the manner set forth in Mayfield.

The second significant distinction between the record in this case and the record in Conrad is the language of the court’s ruling. The trial court’s ruling in Conrad was a generic denial of the OEC 403 objection. That lack of specificity permitted us to infer from the other “rare” circumstances, that the court denied the objection after engaging in the balancing that Mayfield requires. Here, however, the trial court explained why it was “going to overrule the objection” to the video. And that explanation—because “it’s relevant”—precludes us from inferring that the court denied the objection based on an evaluation and balancing of the extent of probative value of the evidence and the risk of unfair prejudice. We decline the dissent’s invitation to treat the court’s statement that the video “is relevant” as short-hand for an articulation of the balancing that Mayfield requires. As explained above, “relevance” and “probative value” are distinct legal concepts, and nothing about the statement “it’s relevant” implies an assessment of the quantum of probative value of the evidence, let alone an assessment of the extent of potential prejudice and a balancing of the competing considerations. On the contrary, it implies that the court’s analysis never reached beyond the threshold question of “relevance.”

Moreover, the court’s reference to giving a “cautionary instruction” regarding the evidence does not change our conclusion that the record does not reflect the balancing that Mayfield requires. See State v. Altabef, 279 Or App 268, 270 & n 3, 379 P3d 755 (2016). In. Altabef as here, the trial court admitted evidence over the defendant’s OEC 403 objection because the evidence was “relevant,” but agreed to give a cautionary instruction. We concluded that, “[a]lthough the parties debated the probative value of the evidence, the record offers no indication that the trial court balanced the probative value of the evidence against its prejudicial effect.” Id. at 270 n 3. As in Altabef the offer of a curative instruction—although it may reflect the court’s recognition that the evidence is potentially prejudicial—does not change the fact that “the record offers no indication that the trial court balanced the probative value of the evidence against its prejudicial effect.” Id. The trial court’s “failfure] to make a record which reflects an exercise of discretion” is error. See Mayfield, 302 Or at 645.⁵

C. Harmless Error Analysis

Article VII (Amended), section 3, of the Oregon Constitution requires us to affirm despite the error if we conclude that “there was little likelihood that the error affected the verdict.” State v. Davis, 336 Or 19, 33, 77 P3d 1111 (2003). Under that standard, we conclude that the error in this case was not harmless and requires reversal. Defendant argues that by showing him in custody, the video "may have led the jury to believe that defendant posed a danger to officers or staff.” See, e.g., Washington, 355 Or at 628 (explaining why allowing the defendant to appear in restraints may have been prejudicial). In addition, he argues that the video presented the risk that the jury would “believe that he was a recidivist who was therefore likely guilty of the charged offenses.” See, e.g., State v. Johns, 301 Or 535, 549, 725 P2d 312 (1986) (“[E]ven if evidence that a defendant has committed other crimes has some legitimate probative value, the danger of unfair prejudice to the defendant may outweigh any such probative value.”). Finally, defendant argues that those substantial risks of prejudice outweighed a probative value that was “minimal” because the articles of clothing defendant wore “are so common that they have little value as indications of identity.”

Had the trial court engaged in the required exercise of evaluating and balancing those countervailing considerations, it may have been persuaded by defendant’s arguments for excluding the video. And exclusion of that evidence would have had a tendency to affect the verdict. Thus, we cannot conclude that the court’s error had little likelihood of affecting the verdict. See State v. Pierce, 189 Or App 387, 392, 76 P3d 172 (2003) (after explaining that trial court erred in failing to engage in the analysis that Mayfield requires, concluding that error was not harmless because the admitted evidence may have affected the jury’s verdict).

Reversed and remanded.

1 Defendant also argues that “[assuming, arguendo, that the trial court engaged in OEC 403 balancing,” then we should conclude that the court abused its discretion in admitting the evidence. To the extent defendant is arguing that he is entitled to exclusion of the evidence as a matter of law, we reject that argument without discussion.

2 The trial court did not identify what caution it planned to give and ultimately gave no cautionary instruction, but defendant did not object to that omission at trial and does not assign error on appeal to the court’s failure to give a cautionary instruction.

3 The state argues that defendant failed to preserve his challenge to the trial court’s failure to make a record reflecting the exercise of discretion because he did not specifically request that the court make a record. However, given Mayfield’s clear directive that the “judge errs if the judge * * * fails to make a record which reflects an exercise of discretion,” 302 Or at 645, defendant’s request for balancing advised the trial court of the need to both engage in balancing and make a record of that balancing and, thus, preserved the error. See State v. Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015) (“primary purposes of the preservation rule are to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record”) (citing Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008)).

4 Although we need not decide why the trial court addressed only “relevance” when explaining its ruling, it is possible that the court understood the prosecutor’s emphasis that the video showed a different arrest date as a suggestion that the video should be admitted under OEC 404(4), without OEC 403 balancing, because the video was connected with an offense other than one of the charged offenses. At the time of trial, our case law—since overruled—had construed OEC 404(4) as precluding OEC 403 balancing in a criminal trial, if “evidence of other crimes, wrongs or acts by the defendant” is “relevant.” See State v. Phillips, 217 Or App 93, 98, 174 P3d 1032 (2007), rev den, 345 Or 159 (2008), abrogated by State v. Brumbach, 273 Or App 552, 359 P3d 490 (2015).

5 The record of the ruling in this case is readily distinguishable from the record in State v. Brown, 272 Or App 424, 355 P3d 216, rev den, 358 Or 145 (2015)—on which the dissent relies. See 282 Or App at 37, 38-39 (DeVore, J., dissenting). The trial court in Brown, in addressing an OEC 403 objection to evidence of prior convictions, expressly concluded that the “probative value [of the evidence is] substantial” and explained why. Id. at 427. It also expressly articulated: “The second part of it is the weighing issue, and I want to be clear that I have done the weighing, and that the probative value is not substantially outweighed by unfair prejudice.” Id. Moreover, as we emphasized, the court in Brown ruled to exclude one of the offered prior convictions, thereby demonstrating that it was not admitting the challenged evidence “wholesale and indiscriminately.” Id. at 434. Thus, unlike the statement “it’s relevant,” here, the record of the ruling in Brown demonstrated that the court understood and applied the Mayfield balancing test.