STATE v. HERRING (2024)

The petition for review is allowed.

In this case, concerning the admissibility of other acts evidence of gang affiliation, the state proffered the evidence at trial under OEC 404(3), and has relied solely upon OEC 404(3) in its petition to this court. But, as we made clear in State v Davis, 372 Or. 618, 633, 553 P.3d 1017 (2024), “in criminal trials in Oregon, the applicable subsection of OEC 404 that applies to acts of a defendant offered in a criminal trial is OEC 404(4), not OEC 404(3).” That pronouncement in Davis was not new—indeed it merely reiterated what we said nearly a decade ago in State v. Williams, 357 Or. 1, 15, 346 P.3d 455 (2015), that “the legislature intended OEC 404(4) to supersede 404(3) in criminal cases.” I do not know how much clearer we can be at this point. In a criminal prosecution in Oregon, when the issue is the admission of other acts of the defendant, offered by the state, the state needs to address OEC 404(4). There is no other correct framing. OEC 404(3) is an analytical tool in performing OEC 403 balancing, it is not the operative rule for admissibility under OEC 404. As we have said, “[e]ven though OEC 404(3) is no longer technically controlling of other acts of a defendant in a criminal trial, considering how the proffered evidence would have fared under that rule ‘will have a significant effect on whether the trial court admits that evidence’ under the balancing required by OEC 403.” Davis, 372 Or. at 635, 553 P.3d 1017.

Because the petition for review in this case continues the intractable resistance of the state, both in trial courts around Oregon, and on appeal, to argue and address the correct rule of evidence—OEC 404(4)—I would deny review. Our shelves are filled with other acts cases discussing OEC 404(3), when OEC 404(4) and OEC 403 would be the correct analysis; we need not add another. However, having granted review in this case, the parties should at least expect questions on OEC 404(4). I respectfully dissent.

PER CURIAM

James, J., dissented and filed an opinion.