author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Ned Weckesser SPROW, III, Defendant-Appellant.
    A163410
    Court of Appeals of Oregon.
    Argued and submitted September 18, 2018. June 12, 2019
    Stacy Du Clos, Deputy Public Defender, argued the cause for the appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant appeals a judgment reflecting his conviction for first-degree criminal trespass. It is undisputed that defendant entered the residence of his former wife, E, during a sale that was being held there after she moved out, at a time when she still rented the home. The state prosecuted the trespass case on the theory that defendant knew it was unlawful for him to enter E's house; defendant argued that he had no reason to believe that he could not enter the house during the sale. At trial, a police officer testified that, when he interviewed defendant after the incident, defendant twice asserted that he had "nothing to say." Defendant objected to the officer's testimony, the trial court sustained the objection and struck that testimony, and defendant moved for a mistrial when the officer was done testifying. The trial court denied the motion. On appeal, defendant asserts that the trial court abused its discretion when it denied his mistrial motion. For the reasons set out below, we agree. Accordingly, we reverse and remand.

We review the trial court's decision to deny a mistrial motion for abuse of discretion, keeping in mind that the trial court "is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it." State v. Wright , 323 Or. 8, 12, 913 P.2d 321 (1996). "We will not find the denial of a mistrial to be an abuse of discretion unless the defendant was denied a fair trial." State v. Swanson , 293 Or. App. 562, 565, 429 P.3d 732 (2018).

The facts pertinent to this appeal are not disputed. During her opening statement, the prosecutor said that Police Officer McNeilly had interviewed defendant after the alleged trespass at E's home because McNeilly "wanted to take down [defendant's] statement, wanted to see what happened." She continued:

"What the defendant told the officer was I've got nothing to say. My ex-wife is messing with me. I have nothing to say. Not once did he say this is a mistake-"

Defendant objected. The court sustained the objection and told the prosecutor to "move on." Nonetheless, the prosecutor repeated what defendant had said before she wrapped up her opening statement to the jury: "Thank you. So what [he] told the officer was I've got nothing to say. My wife is messing with me."

Defense counsel's opening statement emphasized that "the element of intent" was the only real question for the jury. She asserted that defendant had no reason to believe that he "wasn't allowed to walk in and buy items from the sale," like "everyone else off the street."

After opening statements, the lawyers presented evidence to the jury establishing that defendant and E married years ago, had children, and divorced a few years before the alleged trespass incident. The children lived with E in a leased house, and defendant had parenting time. According to E, she did not allow defendant in her house.

E left Oregon with the children in February 2016, thinking she might move to New York, but she did not immediately cancel the lease on her Oregon home. Indeed, E had left many of her possessions at that house and, a few days after she left, a friend of hers (Grisa) held a sale at the house (apparently including inside the house) to help E dispose of some belongings. Defendant went to the house that day and spoke with Grisa. At trial, defendant and Grisa gave conflicting accounts of what happened, with defendant essentially testifying that he had no reason to believe that he could not enter the house, like any other member of the public interested in purchasing items for sale, and Grisa essentially testifying that he repeatedly told defendant that he could not enter. Both men agreed, however, that defendant did enter the home, went upstairs, and looked through personal effects that E had left behind. Grisa testified that defendant took items from the house; defendant testified that he did not.

Grisa called the police after defendant left E's house. Officer McNeilly responded to the call, talked with Grisa, and spoke with E by phone. McNeilly testified that he then attempted to locate defendant "[b]ecause *** whenever there's allegations of you know, potential criminal activity we like to find out both sides of the stories because sometimes there's reasonable explanations for things and sometimes there's not." About a week passed before McNeilly found defendant at home one Saturday morning. McNeilly testified that he told defendant that he was following up on an incident at E's house. McNeilly's testimony continued:

"He [defendant] said something along the lines of that his ex-wife was just trying to mess with him, and then I asked if he was at her house. He said I have nothing to say. I said okay. I asked him if he had taken anything from the house. He again told me that he had nothing to say."

Defense counsel objected. The trial court sustained the objection without seeking argument from the parties and ordered, "The last answer is stricken." The prosecutor asked McNeilly whether defendant had elaborated on his statement that E was "messing with him," and the officer responded, "No. That was-that was all I got was that his ex-wife was messing with him." The prosecutor persisted, asking whether there was "any other information [defendant] said about being at the house?" At that point, defense counsel again objected and asked to approach the bench. After a side-bar conversation, the prosecutor asked the officer what he did next, and his testimony continued without further incident, briefly describing his arrest of defendant.

Defense counsel did not immediately move for a mistrial, but instead cross-examined McNeilly on typical subjects like his training on report writing, the content of his report about this incident, what he understood from his conversation with Grisa, and whether McNeilly had located any other witnesses. After McNeilly finished testifying, the prosecutor reported that she had no further witnesses, the jury was excused, and defense counsel then moved for a mistrial:

"The first motion I would make is a Motion for a Mistrial, and [in the prosecutor's] opening she made statements that [defendant] didn't offer any explanation or didn't explain to the officer that all of this was a big mistake and then she elicited the same testimony from this officer that he first said I don't have anything to say to you, and then she elicited further testimony that he didn't offer any additional explanation, and I'd argue that that's an impermissible comment on his right to remain silent."

The court denied the mistrial motion without further discussion. However, the court warned the prosecutor that if she went "anywhere near that"-referencing defendant's assertion that he had "nothing to say"-during closing argument, the court would then grant a mistrial. The prosecutor did not offer any explanation for having elicited and referenced evidence that defendant had expressed a desire not to give a statement to McNeilly.

As noted, defendant assigns error to the trial court's denial of his mistrial motion. Defendant argues that his assertion that he had "nothing to say" to McNeilly was an unequivocal invocation of his right against self-incrimination under Article I, section 12, of the Oregon Constitution. He further contends the state acted impermissibly when it drew the jury's attention to his invocation of that right. Defendant concludes that the comment on his exercise of a constitutional right deprived him of a fair trial and the trial court was, therefore, required to grant his mistrial motion. He requests that we reverse and remand on that basis.

In response, the state focuses on the fact that defense counsel did not move for a mistrial immediately following McNeilly's testimony about defendant's statements, but first cross-examined McNeilly and waited until after the state had rested its case before making that motion. The state argues that the delay made the mistrial motion untimely and, accordingly, defendant did not properly preserve his claim of error for appeal. The state relies on State v. Walton , 311 Or. 223, 248, 809 P.2d 81 (1991), in which the Supreme Court held that, "[t]o preserve error, a motion for a mistrial must be timely." In Walton , the defendant objected to a question and answer that the defendant characterized as suggesting that he had "some burden * * * to come forward * * * with a defense." Id . at 247, 809 P.2d 81. The trial court sustained the objection and struck the testimony. Two additional witnesses testified on other subjects before the defendant eventually moved for a mistrial, which the trial court denied. Id . at 247-48, 809 P.2d 81. On review, the Supreme Court held that the motion was untimely, noting the general rule that a mistrial motion "is timely if it is made when the allegedly objectionable statements were made." Id . at 248, 809 P.2d 81. The state contends that the mistrial motion in this case "was no more timely than the one held to be untimely in Walton ." In reply, defendant points to more recent cases in which we have held that mistrial motions were timely despite not having been made immediately after the remarks or testimony claimed to be objectionable.

Considering the totality of the circumstances, we are unpersuaded by the state's lack-of-preservation argument. Although Walton can be read to articulate a bright-line rule that mistrial motions must be made immediately following any objectionable statements, the court's decision in that case did not depend on the existence of any such rule, as the defendant's request for a mistrial was significantly delayed. And, since Walton , courts have taken a more nuanced approach in determining when mistrial motions are timely and when they are not. In particular, we have emphasized that "[t]he purpose behind requiring an immediate mistrial motion is to allow the court to take prompt curative action if the court believes it is warranted." State v. Veatch , 223 Or. App. 444, 453, 196 P.3d 45 (2008). Accordingly, we have held that a mistrial motion "was timely, even if not instantaneously made, when made under such circumstances that 'the underlying purpose of that preservation requirement is fulfilled.' " State v. Cox , 272 Or. App. 390, 405, 359 P.3d 257 (2015) (quoting Veatch , 223 Or. App. at 454, 196 P.3d 45 ). In assessing timeliness, the appellate courts therefore have considered various factors, including how much time lapsed between the allegedly objectionable comments or testimony, whether additional testimony was heard, whether other issues were discussed, whether the trial court and state knew the defendant objected to the line of questioning, whether the defendant may have made a strategic choice in delaying the mistrial request, and whether the trial court had an opportunity to take prompt curative action. See State v. Larson , 325 Or. 15, 22, 933 P.2d 958 (1997) ; Cox , 272 Or. App. at 406-08, 359 P.3d 257 ; Veatch , 223 Or. App. at 453-54, 196 P.3d 45. We have also taken note when the state "did not object at trial to [a] defendant's motion for a mistrial as untimely." Cox , 272 Or. App. at 408, 359 P.3d 257.

Applying those factors to this case, we conclude that-although the question is close-the underlying purposes of the timeliness requirement were met. Several circumstances, considered together, lead us to that conclusion. First, defendant immediately objected when the state told the jury, in its opening statement, that defendant had told McNeilly that he had "nothing to say" about what happened at E's house. The trial court immediately sustained that objection and told the prosecutor to move on. And defendant promptly objected again when the state, notwithstanding the trial court's earlier ruling, elicited testimony from McNeilly on the same point. This is not a case in which there could have been any question about defendant's position on the admissibility of that testimony.

Second, the trial court not only had an opportunity to take immediate curative action following defendant's objection to McNeilly's testimony, it did so. Without further prompting, the court struck the testimony. This is not a case in which defendant failed to object or in which the defendant objected and the court did nothing other than sustain the objection. Cf . State v. Ysasaga , 146 Or. App. 74, 76, 932 P.2d 1182 (1997) (where the defendant did not object to the problematic evidence, and "waited until cross-examination had finished before moving for a mistrial," that mistrial motion was untimely).

Third, this is not a case in which it is plausible to believe that defendant strategically decided to delay a mistrial motion in hopes that something favorable would happen at trial. Although defendant cross-examined McNeilly before moving for a mistrial, defendant's questions did not seek to elicit testimony of a sort that could have meaningfully undermined the state's case. McNeilly was not a witness to the alleged trespass and, given the particular circumstances of this case, the outcome at trial was unlikely to hinge on any claim that his report was inaccurate or his investigation was flawed. Certainly there may be circumstances in which a defendant hopes that cross-examining a witness will yield such favorable results that the defendant intentionally forgoes a mistrial motion based on earlier statements by the witness, instead hoping for testimony that may prompt an acquittal. See Veatch , 223 Or. App. at 454, 196 P.3d 45 (it may be reasonable in some circumstances "to infer that the defense counsel made a tactical decision to delay making a motion for a mistrial in order to assess how the trial was unfolding and whether it was likely that the jury would return a favorable verdict-in which case, a mistrial would not be desirable"). In such circumstances, a later mistrial motion may well be deemed untimely. Here, however, given the limited scope of McNeilly's testimony and the cross-examination, it is not plausible to think that defendant "was waiting to see how devastating his cross-examination of [the witness] would be to the state's case before deciding whether to make the motion." Id .

Fourth, no other witnesses testified, no other evidence was offered, and no other topics were discussed before defendant moved for a mistrial. Again, no intervening events suggest that defendant might have intentionally delayed moving for a mistrial, hoping that one of those matters might influence the case in his favor. Finally, neither the trial court nor the state expressed a view that defendant's mistrial motion was untimely when made.

Given the totality of those circumstances, we conclude that defendant adequately preserved for appeal his contention that the trial court was required to grant a mistrial based on McNeilly's testimony that defendant had repeatedly stated that he had "nothing to say." We therefore turn to the merits of that question. As explained below, our consideration of "the merits" is limited, as we assume for purposes of this appeal, without deciding, that it was impermissible for the state to elicit and comment on McNeilly's testimony.

Under Article I, section 12, of the Oregon Constitution, "[n]o person shall * * * be compelled in any criminal prosecution to testify against himself." The right to remain silent is derivative of that broader right against compelled self-incrimination. State v. Hickman , 289 Or. App. 602, 606, 410 P.3d 1102 (2017). It is clear from the record that defendant was referencing a right to remain silent when he objected to the state's opening statement and to the evidence that defendant had told McNeilly that he had "nothing to say." As noted, the trial court sustained those objections and the state did not argue below that there was any reason that it could permissibly elicit evidence or comment on defendant's declaration that he did not wish to make a statement to police. In particular, the state did not assert that the Article I, section 12, right to remain silent had not attached because defendant was not in custody or compelling circumstances when he made that declaration. See State v. Schiller-Munneman , 359 Or. 808, 813, 377 P.3d 554 (2016) (Supreme Court has "not addressed whether, absent custody or compelling circumstances, a defendant's invocation of the right to silence in response to police questioning may be admitted as substantive evidence at trial."); State v. Anderson , 285 Or. App. 355, 357, 396 P.3d 984, rev. den. , 362 Or. 94, 405 P.3d 154 (2017) ( Article I, section 12, right to counsel had not attached in "noncompelling circumstances"). Because no argument was made below regarding whether defendant was in custody or compelling circumstances when he said that he had "nothing to say" to McNeilly, and because the trial court deemed the evidence and argument on that topic to be impermissible, we agree with the state that this appeal "presents no opportunity for this court to decide whether in fact that evidence and argument was impermissible under Article I, section 12, of the Oregon Constitution." Accordingly, the remainder of our analysis assumes, without deciding, that the trial court's ruling on that point was correct, that is, that the state impermissibly commented on defendant's invocation of his Article I, section 12, right to remain silent. The remaining question is whether the state's impermissible comment on defendant's invocation of his constitutional right required a mistrial. In that regard, the state points out (1) that the trial court sustained defendant's objections to the prosecutor's opening statement and to McNeilly's testimony and (2) that the jury was instructed to disregard matters to which the court had sustained objections. From those points, the state concludes that the trial court could reasonably conclude that a mistrial was unnecessary because the jury was unlikely to "draw any adverse inference from the fact that defendant had refused to answer the officer's questions."

We disagree. Evidence commenting on a suspect's invocation of the right to remain silent or the right to counsel may require a mistrial "if it raises the impermissible inference that the defendant did so because he * * * was guilty." State v. Hunt , 297 Or. App. 597, 600-01, 442 P.3d 232 (2019). Conversely, when the impermissible reference to an invocation of constitutional rights was made in a context that makes such inferences unlikely, the trial court does not abuse its discretion by denying a mistrial motion. Id . at 601, 442 P.3d 232. Significantly, curative jury instructions will not necessarily negate the need for a mistrial, if the defendant requests one. See id ., 297 Or. App. at 600, 605-06, 442 P.3d 232 (evidence that the defendant said to an officer that "he wanted to talk to [the officer], but did not want to waive his rights," required a mistrial even though the court instructed the jury to disregard the testimony). In determining whether an instruction was sufficiently curative, we consider whether the instruction effectively negated the prejudicial effect of the testimony. State v. Osorno , 264 Or. App. 742, 752-53, 333 P.3d 1163 (2014). At least in some circumstances, an instruction that simply tells the jury to disregard the offending testimony will not be adequate to negate that inference. See id . at 745, 752-53, 333 P.3d 1163 (instruction informing jury that certain testimony was not information that jury could consider and instructing jury to "disregard" that testimony was not effective to cure an officer's testimony that the defendant had said that she did not "want to say anything incriminating"; mistrial was required); see also Hunt , 297 Or. App. at 605-06, 442 P.3d 232 (summarizing decisions on the adequacy or inadequacy of curative jury instructions). Under the circumstances of this case, there was a strong likelihood that the jury would draw an adverse inference from McNeilly's testimony that defendant twice asserted that he had "nothing to say," particularly in light of the prosecutor's reference to that testimony in her opening statement-a reference that she repeated even after the court sustained defendant's objection to it. Defendant's theory at trial was that he believed he was permitted to be in E's house during the sale, like any other member of the public. The jury could find that theory less viable if it knew that, when McNeilly asked defendant whether he had been at E's house, defendant did not give that explanation for having been there, but instead refused to answer the officer's question. Under the circumstances, defendant's silence raised the inference that he was guilty. Indeed, even after the trial court sustained defendant's objection to the evidence, the prosecutor still asked, again, whether defendant had said anything else "about being at the house." That repeated emphasis on defendant's refusal to explain his presence at E's home created a significant risk that the jury would draw an adverse inference of guilt from defendant's invocation of his right to remain silent.

Moreover, the trial court's instruction to the jury did not negate the prejudice created by that inference. Here, the trial court simply sustained defendant's objection to McNeilly's testimony about what defendant had said and ordered that McNeilly's answer to the prosecutor's question be stricken. Having considered the challenged evidence about defendant's statements in context, together with defendant's objections to that evidence and the trial court's responses and instructions to the jury, we conclude that the instruction would not have effectively "unrung the bell" that rang when the state elicited evidence that defendant declined to answer McNeilly's questions about why he had been at E's house. See Hunt , 297 Or. App. at 607-08, 442 P.3d 232 (instruction for jury to "disregard" a question and answer and "not consider it" was insufficient); Osorno , 264 Or. App. at 752-53, 333 P.3d 1163 (instruction to "disregard" offending testimony was insufficient);

Veatch , 223 Or. App. at 461, 196 P.3d 45 (instruction informing jury specifically to ignore references to the defendant's request to speak to a lawyer and not to draw inferences from that evidence was insufficient because it still did "not negate the inference that the person chose to exercise the right because he was conscious of his guilt").

Reversed and remanded.

      We have taken a similar approach in other recent cases in which the parties appear to have litigated motions based on a shared assumption that the defendants' Article I, section 12, rights had attached, despite not having addressed on the record whether those defendants were in custody or compelling circumstances when questioned by police. See, e.g. , State v. Dodge , 297 Or. App. 30, 44-45, 441 P.3d 599 (2019) (declining to address whether the defendant was in compelling circumstances when questioned because that argument had not been made below and was not fully developed on appeal); Swanson , 293 Or. App. at 565, 565 n. 1, 429 P.3d 732 (noting that the "trial court's ruling and the parties' arguments at trial and on appeal all assume that the trooper's testimony-that defendant initially refused to speak with the trooper without her attorney's advice-was a comment on defendant's invocation of a constitutionally protected right" and expressing "no opinion as to whether defendant's constitutional right to counsel *** had attached when the trooper questioned her" because the state did not dispute that point in the trial court and the record might have developed differently if it had).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Steven Michael JONES, aka James Michael Stevens, Defendant-Appellant.
    A163957
    Court of Appeals of Oregon.
    Submitted September 28, 2018. June 19, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Shorr, Judge, and Landau, Senior Judge.
   LANDAU, S. J.

ORS 164.354 provides that, to prove the offense of second-degree criminal mischief, the state must offer evidence that a defendant engaged in conduct that "damages" the property of another. At issue in this case is what "damages" means. Defendant contends that it requires proof of economic loss to the owner of the property and, because there was no evidence of such economic loss in this case, the trial court should have granted a motion for a judgment of acquittal on that offense. The state argues that, because the statute requires proof of only harm to the property of another-regardless of whether any economic loss resulted-the trial court correctly denied defendant's motion. We agree with the state and affirm.

When, as here, the trial court denies a defendant's motion for judgment of acquittal, we state the facts in the light most favorable to the state and review those facts to determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

Beginning in the early 1970s, the New Copper Penny in Portland housed a restaurant, nightclub, and conference facility. Palindrome Communities acquired the New Copper Penny in April 2016 to redevelop the property into an apartment community. The redevelopment plan called for "gut[ting]" the interior, selling anything of value-including scrap metal-to a salvage company for recycling, and then demolishing the building.

On an evening when the building was vacant, boarded shut, and surrounded by a secure, chain-link fence, Gibson, the vice president of development for Palindrome, checked on the property and noticed that a door had been pried open. Gibson went inside, where he saw defendant touching flexible copper water supply pipes. Gibson told defendant that he needed to leave, but defendant did not respond. He then called the police, who later escorted defendant out of the building. When Gibson went back inside, the copper piping defendant had been touching had been broken in half. The conduct of breaking the pipe in half neither decreased its salvage value nor caused any other economic loss for Palindrome.

Defendant was tried on two offenses: second-degree criminal trespass, ORS 164.245, and second-degree criminal mischief, ORS 164.354. At the close of the state's case, defendant moved for a judgment of acquittal on the criminal mischief charge. He argued that the state had failed to prove that, when he broke the copper pipe, he caused its owner any economic loss. According to defendant, evidence of such economic loss is necessary to establish the statutory element that his conduct "damage[d]" the property of another. The trial court denied the motion. Defendant waived a jury, and the trial court found him guilty of both charges.

On appeal, defendant argues that the trial court erred in denying his motion for a judgment of acquittal on the criminal mischief charge. He reprises his contention that the statute requires proof of economic harm to establish that he "damage[d]" the property of another within the meaning of ORS 165.354. He argues that the plain meaning of the verb "damage" necessitates an element of economic loss and that the plain meaning of the term is confirmed by the context of the statute-specifically, the fact that the alternate ways of committing the offense specify a dollar amount of loss. The state contends that second-degree criminal mischief does not require proof of economic harm.

The issue, then, is one of statutory construction-that is, whether the reference to "damages" in the statute defining the offense of second-degree criminal mischief requires proof of economic loss. To address that issue, we examine the text of the statute in context and in light of any relevant legislative history to determine the meaning that the legislature most likely intended. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

We begin with the text of the statute. ORS 164.354 (1)(b) provides that "[a] person commits the crime of criminal mischief in the second degree if *** [h]aving no right to do so nor reasonable ground to believe that the person has such right, the person intentionally damages property of another[.]" The statute does not define the term "damages." The verb "damages," however, is a term of common usage, and when statutes do not define such terms, we assume that the legislature intended them to have their plain, ordinary meanings. State v. Dickerson , 356 Or. 822, 831, 345 P.3d 447 (2015). The usual source for determining the ordinary meaning of statutory terms is a dictionary of common usage. State v. Murray , 340 Or. 599, 604, 136 P.3d 10 (2006) ("Absent a special definition, we ordinarily would resort to dictionary definitions, assuming that the legislature meant to use a word of common usage in its ordinary sense.").

In this case, the dictionary defines the verb to "damage" as "to do or cause damage to: hurt, injure, impair." Webster's Third New Int'l Dictionary 571 (unabridged ed. 2002). The dictionary defines the synonyms to the verb damage as follows. "Hurt" is "to do damage or material harm to: damage, impair." Id. at 1104. "Injure" is "to inflict material damage or loss on." Id. at 1164. "Impair" is "to make worse: diminish in quantity, value, excellence, or strength: do harm to: damage, lessen." Id. at 1131. Additionally, in addressing the nuances of the synonyms of "injure," the dictionary explains that "damage implies injury resulting in loss of value, completeness, efficiency, function." Id. at 1164.

As the foregoing definitions demonstrate, to "damage" certainly may include action that causes economic harm, but there is nothing about the verb that necessitates it. The term also includes any form of "material harm," loss of "completeness, efficiency, [or] function." In ordinary speech, it is common to speak of "damaged relationships," "damaging information," and the like without reference to economic loss. Defendant's argument that the plain meaning of "damage" requires proof of economic loss is simply incorrect.

Of course, we do not interpret statutes by reference to the plain meaning of words in isolation. The meaning of statutory terms most likely intended by the legislature is determined by reference to the use of the terms in context. See, e.g ., State v. Gonzalez-Valenzuela , 358 Or. 451, 461, 365 P.3d 116 (2015) ("[A] dictionary definition-although providing some evidence of meaning-should not be relied on to resolve a dispute about plain meaning without critically examining how the definition fits into the context of the statute itself."); Kohring v. Ballard , 355 Or. 297, 304, 325 P.3d 717 (2014) ("[W]e examine word usage in context to determine which among competing definitions is the one that the legislature more likely intended.").

In this case, the term "damage" is used in reference to "property of another." ORS 164.305(2) defines property of another as "property in which anyone other than the actor has a legal or equitable interest that the actor has no right to defeat or impair." In turn, ORS 164.005(5) defines "property" to mean "any article, substance or thing of value."

In State v. Waterhouse , 359 Or. 351, 358, 373 P.3d 131 (2016), the Oregon Supreme Court concluded that, for the purposes of criminal property offenses, the term "property" necessarily involves an element of monetary value: "[U]nder the Oregon Criminal Code, the concepts of 'property' and 'value' are inextricably linked in that the former does not appear to exist apart from some evidence of the latter." See also State v. Nyhuis , 251 Or. App. 768, 774, 284 P.3d 1229 (2012) (for purposes of arson statutes, "property of another" refers to property that has monetary value). Although defendant does not make the argument, it could be asserted that, in light of Waterhouse , the fact that "property" must be something of value suggests that "damage" to that property must entail some diminution in that value.

But the argument does not necessarily follow. The fact that property must have value does not necessarily mean that any damage to it requires a diminution in that value. Value is not always merely economic value. Property may be damaged in the sense of being physically harmed or losing completeness, efficiency, or function. It may be damaged even if such loss of efficiency or function has no appreciable affect on the economic value. Even objects with no economic value at all can be damaged if the harm affects some other value-like sentimental value. No one would contest, for example, that denting a vehicle damages it. Yet, depending on the circumstances, the damage may result in no appreciable loss in the monetary value of the vehicle.

By itself, then, the fact that "property" refers to things of value does not answer the question whether proof that one "damaged[d]" that property requires proof of a diminution in value. That can be resolved only by reference to the way the terms are used in the statute defining the offense itself. In that regard, Waterhouse itself is instructive. In that case, the court said that, although the term "property" refers to a thing of value, whether the state must prove a particular value will depend on the statutes defining the offense. Waterhouse , 359 Or. at 357, 373 P.3d 131. The statute defining third-degree theft, ORS 164.043, does not specify a minimum valuation of the property stolen. As a result, the court held that all that the statute requires is what was stolen was "property," not that it had any particular value. Id . at 359, 373 P.3d 131.

We turn, then, to the statutes defining the offense of second-degree mischief. ORS 164.354(1), in its entirety, provides:

"A person commits the crime of criminal mischief in the second degree if:
"(a) The person violates ORS 164.345 [criminal mischief in the third degree], and as a result thereof, damages property in an amount exceeding $ 500; or
"(b) Having no right to do so nor reasonable ground to believe that the person has such right, the person intentionally damages property of another, or, the person recklessly damages property of another in an amount exceeding $ 500."

ORS 164.345 provides that a person commits third-degree criminal mischief by tampering or interfering with the property of another "with intent to cause substantial inconvenience."

The statute thus establishes three different ways of committing the offense of second-degree criminal mischief: first, by committing third-degree criminal mischief and "damag[ing] property in an amount exceeding $ 500"; second, by "intentionally damag[ing] property of another"; and, third, by "recklessly damag[ing] property of another in an amount exceeding $ 500." Significantly, only two of those three different ways of committing second-degree criminal mischief require proof of the economic value of the property damage. In the case of intentionally damaging property of another, there is no mention of any particular amount of resulting economic harm.

Defendant argues that, because two of the three ways of committing the offense involve specific monetary amounts of value, it stands to reason that the third one must as well. Defendant, however, has it precisely backwards. Generally speaking, when the legislature includes a term in one or more statutes, but omits the term in another, we assume that it did so purposefully. State v. Bailey , 346 Or. 551, 562, 213 P.3d 1240 (2009) ("[W]hen the legislature includes an express provision in one statute and omits the provision from another related statute, we assume that the omission was deliberate."); PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993) ("[U]se of a term in one section and not in another section of the same statute indicates a purposeful omission[.]"). In this case, then, when ORS 164.354 provides that second-degree criminal mischief may be committed by intentionally damaging the property of another-without reference to resulting economic harm-we assume that the omission was intentional. Any monetary amount of damage to the property of another, in other words, is irrelevant.

A related principle of statutory construction is that courts are constrained not to insert words that the legislature chose to omit. See, e.g. , Comcast Corp. v. Dept. of Rev ., 363 Or. 537, 545, 423 P.3d 706 (2018) (rejecting proposed interpretation because it "would require this court to insert" wording that the legislature chose not to include); see also ORS 174.010 (courts are to "ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted"). Again, the statute defining the offense of second-degree criminal mischief provides three ways of committing the offense: first, by committing third-degree criminal mischief and "damage[ing] property in an amount exceeding $ 500"; second, by "intentionally damag[ing] property of another"; and, third, by "recklessly damag[ing] property of another in an amount exceeding $ 500." Defendant's proposed reading of the statute effectively rewrites the second of the three to state that the offense may be committed by "intentionally damag[ing] the property of another" in an amount less than $ 500 . When the legislature intends to require proof of such an amount, it knows how to do so. See, e.g ., ORS 164.043 (1)(b) (defining third-degree theft as theft of property if "[t]he total value of the property in a single or aggregate transaction is less than $ 100"); ORS 164.125(5)(b) (defining theft of services as a Class C misdemeanor "if the aggregate total value of services that are the subject of the theft is less than $ 100"). That it chose to omit any such reference to value we must credit in interpreting ORS 164.354(1).

To the extent that there are any doubts about the legislature's intended meaning of ORS 164.354, an examination of the legislative history easily resolves them. What is now ORS 164.354 originated as section 146 of the comprehensive revision of Oregon's criminal code in 1971. Or. Laws 1971, ch. 743, § 146. Section 146 of the Final Draft and Report is essentially the same as ORS 164.354. The Commentary explained that the section

"defines three ways of committing the crime of criminal mischief in the second degree by damaging the property of another. Note that damaging the property of another in any amount is a violation, but recklessly damaging requires the damage to exceed $ 100."

Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 145-47, 153 (July 1970) (emphasis in original). The use and emphasis of the word "any" suggests that even damage that results in zero economic loss suffices.

Even more to the point, though, are recorded discussions of a subcommittee of the commission, which led to the preparation of the Final Draft and Report. See State v. Branch , 362 Or. 351, 363, 408 P.3d 1035 (2018) ("This court has looked to commentaries produced by both the commission and its subcommittees as legislative history for the revised criminal code."). The discussions referred to a working draft of section 146, which again is essentially the same as what became ORS 164.354 :

"A person commits the crime of criminal mischief in the second degree if:
"(1) He violates section 1 [third degree criminal mischief], and as a result thereof, damages property in an amount exceeding $ 100; or
"(2) Having no right to do so nor reasonable ground to believe that he has such right, he:
"(a) Intentionally damages property of another; or
"(b) Recklessly damages property of another in an amount exceeding $ 100."

Criminal Law Revision Commission Proposed Oregon Criminal Code, Preliminary Draft No. 3, Art 16 (June 1968).

Project director Donald Paillette explained that the differences between the types of criminal mischief in the second degree lie in their "elements." Tape Recording, Criminal Law Revision Commission, Subcommittee 1, June 22, 1968, Tape 7, Side A (statement of Director Donald Paillette). He noted that "[w]e don't explicitly state or place a level of value on 2(a)," but they did for section 2(b), because "the crime that is prohibited under 2(b) has one more element than under [2(a) ], and that is the value of the damage." Id . To illustrate that, Paillette explained that criminal mischief in the second degree with intent to damage property would apply if "I get mad at my wife and drive through her petunias" or "I drive across the courthouse lawn because I am mad at somebody[,]" but not "if I'm engaged in the act of reckless driving," where the damage would need to exceed $ 100. Id.

Paillette further explained the distinction by reference to petty and grand larceny statutes, as they existed at the time:

"[F]or example, a petty larceny statute could say that a man commits petty larceny if he steals property. Then you can have a statute that says he commits grand larceny if he steals property of a value of 'X' number of dollars and you're just adding an element to the crime, that's all."

Id. Therefore, "value is not an [element] of second degree [criminal mischief] any more than value is an element of petty larceny. It becomes an element when you get into grand larceny[,]" just as it becomes an element when you get into first-degree criminal mischief. Id.

In light of that explanation, there can be no doubt that the drafters of ORS 164.354 did not intend that the term "damages," as it is used in that statute, always requires proof of economic loss.

Returning to the facts of this case, it is not disputed that the copper pipe in the New Copper Penny that defendant broke had some monetary value and that it was therefore "property of another" within the meaning of ORS 164.354. It is likewise uncontested that defendant broke the pipe and, in doing so, caused the pipe physical harm. Defendant's sole contention is that causing such physical harm is legally insufficient to establish that he had "damage[d]" the pipe in violation of ORS 164.354, because there was no evidence of the dollar value of economic loss that resulted. For the reasons we have set out above, that argument is incorrect. Whether he caused the owners of the pipe to suffer economic loss is immaterial. Defendant advances no other argument on appeal. The trial court did not err in denying defendant's motion for judgment of acquittal on the second-degree criminal mischief charge.

Affirmed.

      Section 146 of the Final Draft and Report of the proposed criminal code provided:
      "(1) A person commits the crime of criminal mischief in the second degree if:
      "(a) He violates section 145 of this Act [third-degree criminal mischief], and as a result thereof, damages property in an amount exceeding $ 100; or
      "(b) Having no right to do so nor reasonable ground to believe that he has such right, he intentionally damages property of another, or, he recklessly damages property of another in an amount exceeding $ 100."
      Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 146 (July 1970).

      In 2009, the amounts in ORS 164.354 were amended from $ 100 to $ 500. Or Laws 2009, ch 16, § 5.


author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jack Allen CAVE, Defendant-Appellant.
    A164020
    Court of Appeals of Oregon.
    Argued and submitted October 4, 2018. June 12, 2019
    Thaddeus Betz, Bend, argued the cause and filed the brief for appellant.
    Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, four counts of first-degree rape, and two counts of first-degree sodomy involving his two minor granddaughters. We reject his second assignment of error without discussion, and write to address defendant's first assignment of error, in which he argues that the trial court erred in admitting the testimony of his adult daughter that he sexually abused her when she was a child. Defendant contends that the trial court erred as a matter of law when it failed to analyze the admissibility of that evidence under the framework prescribed in State v. Baughman , 361 Or. 386, 393 P.3d 1132 (2017), a failure that then impacted the OEC 403 balancing. Defendant also argues that the trial court erred in admitting the evidence of the uncharged acts for several nonpropensity purposes under OEC 404(3) and in finding that the probative value of the evidence substantially outweighed the danger of unfair prejudice under OEC 403.

On appeal, the state defends the trial court's admission of the evidence on one theory, to show defendant's sexual purpose in committing the charged acts, which it characterizes as a nonpropensity theory. Therefore, even assuming the trial court erred in failing to follow the Baughman framework, the state urges us to affirm because nonpropensity evidence is generally admissible under State v. Williams , 357 Or. 1, 346 P.3d 455 (2015). We agree with defendant that the trial court erred when it failed to first assess the probative value of the evidence as nonpropensity evidence under OEC 404(3) and OEC 403 and then turn to its admissibility as propensity evidence under OEC 404(4) and OEC 403 only if it was inadmissible under OEC 404(3). Accordingly, we reverse and remand for the trial court to follow the framework outlined in Baughman .

BACKGROUND

Defendant was charged with crimes committed against his granddaughters MB and LB. Two of the counts involved first degree sexual abuse based on allegations that defendant touched MB's vagina. Four of the counts alleged first-degree rape for sexual penetration of LB, and two of the counts alleged first-degree sodomy for deviate sexual penetration of LB. All counts were alleged to be separate criminal acts.

Before trial, defendant filed a written motion to exclude the expected testimony by his daughter, JB (who is also LB's mother) that defendant had sexually abused her in childhood. As ultimately allowed by the trial court, JB later testified that, when she was between 8 and 14 years old, defendant touched her breasts a number of times, touched her vagina one time, and put his penis in her mouth one time. She said that this occurred in the living room and in her parents' bedroom when her siblings were likely in their bedroom and her mother was at work. Defendant argued that JB's proposed testimony was inadmissible under OEC 401, OEC 404(4), and OEC 403, and under the Fourteenth Amendment to the United States Constitution and Article I, section 11, of the Oregon Constitution. The state responded that the evidence would not be relevant unless defendant "open[ed] the door." On the first day of trial, the state filed a trial memorandum detailing the various ways in which the evidence would be admissible if the defendant "opened the door," and it also argued for the admission of JB's testimony as relevant on "proof of motive, lack of mistake or accident as well as [a] sexual predisposition toward pre-pubescent girls, under OEC 404(4), 404(3), 403, and 401." As to its relevance to establish a lack of mistake, the state contended that "[i]f the defendant * * * puts forth a claim that any touching was innocent, or accidental, the state must * * * disprove the defense theory." The court did not rule on the state's motion to admit JB's testimony before trial.

Both MB and LB testified at trial. MB, then 19, testified that, when she was five or six years old, defendant touched her inappropriately at a family gathering. She explained that while she was sitting on his lap when he was in a recliner in the living room, defendant touched her vagina and breast. She testified that the same thing happened again that same day when, with other children around, she was on defendant's lap in a hot tub and he touched her "skin-to-skin."

LB, then 25, testified to numerous incidents of sexual abuse beginning when she was roughly six to eight years old. She described how defendant sexually penetrated her in the bedroom and front room of his home and in his truck. She explained that defendant would take her with him to take his dog out to play in a rural area. She described how, on more than one occasion, defendant would have her sit on his lap, pull down her pants, and sexually penetrate her. LB also described how defendant put her mouth on his penis once in his bedroom and once in the front room of his home. She explained that the abuse stopped when she was a young teenager because defendant had found out that she had begun menstruating, and he told her that "it couldn't happen anymore because [she] was now a woman."

The state also called two detectives who testified that, when they interviewed him, defendant denied the conduct described by his granddaughters.

The defense called a number of family members who testified that MB and LB acted normal around defendant and that they did not observe anything unusual between the two girls and defendant. Several witnesses testified that defendant did not like to be around children, was not affectionate with his grandchildren, and never had them sit on his lap or spent time alone with them. Defendant's wife testified that defendant did not take care of his own children. The witnesses also testified that it would have been impossible for defendant to sexually abuse the victims during the holiday family gatherings because of the number of people in the home and their visibility due to its layout.

Lastly, the defense elicited testimony from three witnesses about defendant's sexual propriety around other children. His wife testified that she had never observed any concerning behavior by defendant toward any child. Defendant's daughter-in-law likewise testified that she had never observed any concerning behavior between defendant and any other child, including her own. And LB's younger sister testified that she had sat on defendant's lap in the hot tub before and that he had hugged her in the past, but that he had never made her feel uncomfortable.

After the defense rested, the state argued that defendant had "opened the door" for JB's proposed testimony by asking several witnesses "what they had seen, how *** defendant acted around children within the residence, how the children reacted toward *** defendant, essentially implying this couldn't have happened because [MB] and [LB] were not afraid of [him]." According to the state, through this testimony, there is "some inference or implication [that] *** everybody in the family thinks [defendant] is the perfect grandfather, father, has no inappropriate contact at any point." The state further argued that the evidence was admissible under Williams "to show defendant's sexual predisposition towards a certain age of child."

In an OEC 104 hearing outside the jury's presence JB testified to the details of the sexual abuse. The state then argued that her testimony was admissible under OEC 404(4) and OEC 404(3) for two purposes: (1) "to show *** defendant's sexual predisposition towards children *** between five and nine" and (2) "to prove there was no accidental touching; that this was sexual touching that occurred." The state asserted that the prior conduct and charged acts were admissible under State v. Johns , 301 Or. 535, 725 P.2d 312 (1986), and that the probative value of the evidence was not substantially outweighed by any prejudice under OEC 403. Defendant disagreed that he had "opened the door" to the evidence and argued that the prejudicial effect of JB's proposed testimony "far outweigh[ed]" its probative value.

In making its ruling, the court began by stating that it was evaluating the admissibility of the testimony under

" State vs. Williams [,] *** State vs. Turnidge and State vs. Brumbach , which is a very similar case to this, as was Williams . [S]o I'm evaluating this under 404(4) and *** I'm very clearly conducting a balancing analysis under 403."

The court explained that the evidence was admissible because defendant had "open[ed] the door" to it by presenting an "impossibility defense" that he "would never have had an opportunity because he was literally never alone with children, always observed by other adults." Further, the court noted that the defense had presented evidence that "no children ever demonstrated any sort of concern for his behavior and that *** he's a loving grandfather," and also that defendant did not like to be around children. The court explained,

"[T]he need for this [evidence] *** I think under this case would classify as uncharged misconduct[.] Prior bad acts evidence. And it's clearly necessary in this case, so there's certainly a strong reason to admit it.
"And in *** analyzing the probative value versus the prejudicial impact, of course there's prejudicial impact. There's always prejudicial impact when there's evidence present that would tend to support that a defendant has committed a crime. But I don't think it's unfair in this case. In fact, I think it would be really unfair to the State not to be able to counter this impossibility defense with the testimony of the defendant's own daughter, who is in the 104 hearing testifying that the defendant *** touched her vagina, that he at some point had his penis in her mouth;
conduct that is completely consistent with the testimony of [MB] and [LB]."

The court continued,

"[I'm] making the decision that the probative value outweighs the prejudicial impact. And under 404(4) and 404(3), and after a 403 analysis, this evidence is admissible and it's going to be allowed.
"It's probative on motive. In other words, sexual gratification. ***
"It's probative on the issue of opportunity[ ] *** [t]o contradict the evidence that there could be no opportunity.
"It's probative on intent. And again going to the sexual gratification.
"It's probative value on *** some sort of a plan, in the sense of being alone with children. ***
"And the absence of mistake or accident. There was some suggestion that, oh, well, if he was in the hot tub with one of the girls, maybe he touched her, but it would have been a mistake or accident. Well, this is probative that that was not a mistake or accident."

Defendant did not request a limiting instruction. After the close of evidence, defendant was convicted on all counts.

On appeal, defendant argues that the trial court's OEC 403 balancing was flawed because the court failed to first identify whether the evidence was admissible as propensity or nonpropensity evidence before conducting the OEC 403 balancing, which requires reversal under Baughman . Defendant also argues that the trial court erred in determining that the evidence was relevant for a non-propensity purpose to show plan, opportunity, absence of mistake or intent, or motive.

At oral argument, the state narrowed its argument in response, defending only a single theory of admissibility-to show defendant's sexual purpose, which the state characterized as a nonpropensity theory. The state argues that evidence showing that defendant acted with a sexual purpose, which is an element of the crime of first-degree sexual abuse, is nonpropensity evidence, and is admissible under OEC 404(4) and OEC 403. Therefore, the state argues, even though the trial court evaluated admissibility under OEC 404(4), which applies to propensity evidence, we should nonetheless affirm because, as Williams instructs, evidence that is relevant for a nonpropensity purpose "generally will be admissible" under OEC 403 balancing. 357 Or. at 19, 346 P.3d 455.

STANDARD OF REVIEW

We review a trial court's determination that other acts evidence is relevant for a nonpropensity purpose under OEC 404(3) and OEC 404(4) for legal error. Baughman , 361 Or. at 406, 393 P.3d 1132. We review a trial court's determination as to whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice under OEC 403 for abuse of discretion. Id.

ANALYSIS

We begin by concluding that the trial court erred in admitting the evidence under the nonpropensity theories of plan, opportunity, absence of mistake, or motive. The state's decision not to defend those bases for admission is sound.

The prior act in this case, defendant's sexual abuse of his daughter, was not sufficiently connected in either time or operation to the charged acts to show that defendant was acting in accordance with a plan. See State v. Leistiko , 352 Or. 172, 189, 282 P.3d 857 (2012) (stating that "something more than the similarity required for other crimes evidence to be admissible to prove intent is necessary for it to be admissible to prove plan"); State v. Kaylor , 252 Or. App. 688, 700-04, 289 P.3d 290 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013) (the defendant's threats to the victim and another resident at the same nursing home six months before the defendant's assault on the victim while attending to his care were not sufficiently similar to demonstrate defendant's intent or plan to treat the victim abusively). Moreover, JB's testimony that defendant abused her when she was a child does not actually speak to the issue of whether he had an opportunity to be alone and unobserved with his grandchildren or other children.

Additionally, the absence of mistake or doctrine of chances does not apply in this case because defendant denied that the charged conduct occurred. State v. Tena , 362 Or. 514, 524, 412 P.3d 175 (2018) ("[T]he doctrine of chances applies only to explain whether or not an act that a defendant performed was performed intentionally. It does not apply when there is a dispute about whether the defendant performed the act at all.").

Lastly, treating evidence that defendant sexually abused his daughter when she was a child as relevant to his motive in sexually abusing his minor granddaughters is rooted in impermissible character-based reasoning. The logical inference of such an argument is based on a character trait of defendant-a motive to sexually abuse child victims because he has a sexual interest in children in general. See State v. Davis , 290 Or. App. 244, 246, 255, 414 P.3d 887 (2018) (defendant's two handwritten notes to women expressing a desire to engage in violent sexual acts was not admissible to show that defendant acted with a sexual purpose in kidnapping the victim because that "inference depends upon the existence of a persistent trait intrinsic to defendant: that defendant has an interest in sexually assaulting any female stranger") (emphasis in original).

Having determined that the trial court erred in giving weight to the prior conduct evidence under nonpropensity theories, we conclude that the OEC 403 balancing that it engaged in was flawed as a consequence. In Baughman , the Supreme Court laid out the framework that trial courts must follow in assessing the admissibility of uncharged misconduct evidence under OEC 404(3) and OEC 404(4). 361 Or. at 404-05, 393 P.3d 1132. The court explained,

"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. 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 court determines that proferred 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."

Id .

In this case, the trial court did not, as Baughman instructs, begin at step one and consider the potential nonpropensity theories of relevance and move to step two and apply the OEC 403 balancing to those theories. Rather, the trial court first considered whether the evidence was relevant under OEC 404(4). Following that, the court assessed the relevancy of the evidence due to defendant "opening the door." The trial court next applied its OEC 403 balancing to those theories combined. The trial court ended its analysis by identifying additional nonpropensity theories of relevance under OEC 404(3). Combining propensity and nonpropensity theories of relevance when conducting the OEC 403 balancing will significantly affect the outcome of that balancing. As Baughman explains,

"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. * * * 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 405, 393 P.3d 1132 (citing Williams , 357 Or. at 19-20, 346 P.3d 455 ). Therefore, the trial court's error in finding the prior conduct evidence to be probative on multiple nonpropensity theories resulted in the trial court giving undue weight to the quantum of probative value of the uncharged conduct, which affected its OEC 403 balancing in this case.

Despite the court's error, the state contends that, even if the trial court erred in its OEC 403 balancing, we should nevertheless affirm because evidence of defendant's sexual purpose, an element of one of the charged crimes, is a nonpropensity theory, and as explained in Williams and Baughman , nonpropensity evidence generally will be admissible under OEC 403. Defendant takes a different position and characterizes evidence to establish defendant's sexual purpose towards the minor victims as propensity evidence. However, even assuming the state is correct that the evidence was admissible as nonpropensity evidence, we nonetheless conclude that the error was not harmless.

Whether the testimony is labelled propensity or nonpropensity evidence, we cannot say, as a matter of law, that evidence to establish a defendant's sexual purpose is sufficiently probative as to outweigh any potential prejudicial impact. The decision whether to admit evidence under OEC 403 is a matter of discretion for the trial courts. See State v. Sewell , 257 Or. App. 462, 468-69, 307 P.3d 464, rev. den. , 354 Or. 389, 315 P.3d 420 (2013). The defendant in this case argues that the evidence should have been excluded under OEC 403 balancing for a number of reasons, including that the need for the evidence was low because the "jury had already heard from two separate victims recount[ing] their sexual abuse" by defendant and that "a decade's [old] prior tale of abuse" held little probative value on the issues in the case. Unlike State v. Zavala , 361 Or. 377, 393 P.3d 230 (2017), where the court concluded that the trial court's error in failing to conduct OEC 403 balancing was harmless because the defendant "did not contend that * * * the particular facts of his case demonstrated a risk of unfair prejudice that substantially outweighed the probative value of the evidence," defendant has raised such an argument in this case, and we cannot say that a trial court could not be persuaded to exclude the evidence. See State v. Holt , 292 Or. App. 826, 833-34, 426 P.3d 198 (2018) (concluding that the trial court's error in admitting uncharged nonpropensity evidence without conducting an OEC 403 balancing was not harmless where the court "permissibly could have exercised its discretion to admit or exclude some or all of the evidence of defendant's previous conduct with [the victim]; either decision would have fallen within the permissible range of outcomes"). Therefore, we cannot conclude that there was little likelihood that the trial court's error affected the verdict. See State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) (for harmless error review, the question is whether there is little likelihood that the trial court's error affected the verdict). We reverse and remand for the trial court to follow the framework as outlined in Baughman and assess the admissibility of the challenged evidence.

Reversed and remanded.

      Defendant also argues that the trial court erred in failing to engage in a conscious balancing test under OEC 403 because the record does not demonstrate that it gave due consideration to the matters discussed in State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987). After briefing was filed in this case, the Supreme Court decided State v. Anderson, 363 Or. 392, 423 P.3d 43 (2018), clarifying that, while "Mayfield sets out the factors that trial courts should consider in resolving an OEC 403 objection, * * * it does not require that trial courts go through a checklist on the record in order to avoid a reversal or a remand." Id. at 409, 423 P.3d 43. The court explained that "appellate courts should consider the trial court's ruling in light of the arguments that the parties made on the merits of the issues raised by an OEC 403 objection, as well as whether either party asked the court to provide a more complete explanation of its ruling." Id. Applying that standard, we reject defendant's argument.

      At oral argument, the state advanced the view that the evidence was also relevant to show a "lack of mistake" as another way of saying that the touching was intentional. The relevance of evidence to establish the absence of mistake or accident under OEC 404(3) is often interchangeable with the theory of the doctrine of chances, but the state conceded that the doctrine of chances did not apply in this case. However, the state failed to develop, either in its appellate briefing or at oral argument, specifically how the lack of mistake in this case is distinct from the doctrine of chances. We understand the state's argument regarding lack of mistake to mean simply that the evidence is relevant to establish that defendant acted with a sexual purpose, which is to say that defendant acted intentionally. See Baughman , 361 Or. at 407, 393 P.3d 1132 ("other acts evidence can be relevant to a defendant's intent on theories other than the doctrine of chances"). Therefore, we consider those arguments to be the same and address them together.

      She did not specify whether, on that occasion, defendant touched her vagina or breast, or both.

      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."

      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."

      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."

      While explaining its findings, the trial court stated that there had been some "some suggestion that *** if he was in the hot tub with one of the girls, maybe he touched her, but it would have been a mistake or accident." However, after a thorough search of the record, we were unable to find a single witness who testified to such a suggestion, and defendant did not raise that argument during the trial or on appeal.

      The trial court also appeared to have partially based its reasoning that defendant had "opened the door" to the prior conduct evidence by presenting evidence "that no children ever demonstrated any sort of concern for his behavior and that-essentially *** he's a loving grandfather and couldn't possibly have done this." Neither defendant nor the state substantively address this theory of admission in their appellate briefing or oral argument. However, because this basis for admissibility will likely arise on remand, we note that, once defendant presented testimony that he acted appropriately around all children, defendant put in issue his sexual propriety around children. See State v. Oliver , 275 Or. App. 552, 555, 365 P.3d 151 (2015) ("Once defendant testified that he was a 'caring man' who would not use force to harm another person, the evidence of defendant's prior acts-which tended to refute defendant's characterization of himself-became probative to impeach that testimony."); State v. Apodaca , 291 Or. App. 268, 278, 420 P.3d 670 (2018) ("Once defendant sought to imply that he had not engaged in the type of repeated abuse that he contends would be typical in a domestic-violence situation, the state could offer evidence demonstrating that, in fact, defendant had assaulted [the victim] more than once."). The trial court, therefore, may consider this as a basis for admissibility on remand.

      Whether evidence establishing a defendant's sexual purpose toward a child is propensity or nonpropensity evidence is a question that has not yet been resolved by the Supreme Court, and it is the subject of significant confusion. See State v. Skillicorn , 297 Or. App. 663, 678-79, 443 P.3d 683 (2019). For example, Williams held that the uncharged conduct evidence in that case-defendant's possession of children's underwear-was relevant to show his sexual purpose and analyzed its admissibility under OEC 404(4), the provision aimed at assessing the admissibility of propensity evidence. 357 Or. at 20-24, 346 P.3d 455. However, Williams also explained that "there is a slim but distinct difference between using the underwear evidence to establish defendant's character and propensity to act accordingly, and offering that evidence to establish defendant's sexual purpose." Id. at 23, 346 P.3d 455. The court, therefore, drew a distinction between evidence to show a sexual purpose and character evidence, thereby implying that evidence to show a sexual purpose is nonpropensity evidence. However, the court went to considerable lengths to assess the admissibility of the evidence under OEC 404(4), which applies only to character or propensity evidence. Despite this apparent conflict, this case does not present the need to squarely address the issue.

      Since Williams was decided, we have addressed the admissibility of evidence in a child sexual abuse case to show that a defendant acted with a sexual purpose in State v. Moles , 295 Or. App. 606, 435 P.3d 782 (2019). On remand, the trial court can apply the Moles test to determine the admissibility of this type of evidence.