370	                            April 27, 2017	                           No. 22

               IN THE SUPREME COURT OF THE
                     STATE OF OREGON

                    STATE OF OREGON,
                     Petitioner on Review,
                               v.
               BRETT NICHOLAS MAZZIOTTI,
                    Respondent on Review.
           (CC 201218698; CA A153713; SC S064085)

    On appeal from the Court of Appeals.*
    Argued and submitted November 14, 2016.
   Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
   Kristin A. Carveth, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Ernest G. Lannet, Chief Defender,
Office of Public Defense Services and Mary M. Reese, Deputy
Public Defender.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, and Nakamoto, Justices, and Baldwin,
Senior Justice, Justice pro tempore.**
    WALTERS, J.
   The decision of the Court of Appeals is affirmed. The judg-
ment of the trial court is reversed, and the case is remanded
to the trial court for further proceedings, consistently with
this opinion.




______________
	**  On appeal of a judgment of the Lane County Circuit Court, Josephine H.
Mooney, Judge. 276 Or App 773, 369 P3d 1200 (2016).
	  **  Flynn, J., did not participate in the consideration or decision of this case.
Cite as 361 Or 370 (2017)	371

    Case Summary: Today, the Oregon Supreme Court, following State v.
Baughman, 361 Or __, __ P3d __ (2017), explained that the legislature intended
that trial courts, in determining whether to admit evidence under OEC 404(4),
conduct the balancing required by OEC 403 according to its terms. Trial courts
may exclude evidence, in the exercise of their discretion, when they determine
that its probative value is substantially outweighed by the danger of unfair prej-
udice. In this prosecution for failure to perform the duties of a driver, reckless
endangerment, and reckless driving, the trial court improperly admitted other
acts evidence without conducting OEC 403 balancing.
    The Court affirmed the decision of the Court of Appeals, reversed the judg-
ment of the circuit court, and remanded the case to the trial court for a deter-
mination of the relevant purposes of other acts evidence that the state proffers
under OEC 404(3) or OEC 404(4), balancing under OEC 403, and a determina-
tion of whether a new trial is necessary or appropriate.
372	                                        State v. Mazziotti

	       WALTERS, J.
	        In this case, a prosecution for failure to perform the
duties of a driver, reckless endangerment, and reckless driv-
ing, the trial court admitted other acts evidence over defen-
dant’s objection and, the state concedes, without conducting
OEC 403 balancing. We agree with the Court of Appeals
that that was reversible error. State v. Mazziotti, 276 Or
App 773, 360 P3d 1200 (2016). We affirm the decision of the
Court of Appeals, reverse the trial court’s judgment of con-
viction, and remand the case to the trial court for further
proceedings.
	        Defendant was charged with crimes arising from
a 2012 traffic accident that occurred after defendant, who
was driving a motorcycle, had been speeding. When a car
turned in front of defendant, he was unable to avoid a colli-
sion, and his passenger was thrown from the motorcycle and
sustained injuries. After the accident, defendant moved his
passenger to the side of the road, moved the motorcycle from
the roadway, and then accepted a ride from the scene from a
passerby. Ultimately, defendant was charged with failure to
perform the duties of a driver, reckless endangerment, and
reckless driving.
	        Before trial, the state moved to admit evidence of
two prior police encounters that defendant had had with
police officers and the criminal convictions that resulted
from those encounters. The first encounter had resulted in
convictions for reckless driving and attempting to elude. A
police officer testified that, when defendant failed to stop at
a stop sign, the officer had initiated a traffic stop and defen-
dant had driven away with the police in pursuit. Defendant
had increased his speed to roughly 55 miles per hour, led
the police into a residential neighborhood, and made two
immediate turns at a high rate of speed. During the sec-
ond encounter, defendant had driven through a stop sign
at a high rate of speed and lost control of his vehicle, nearly
hitting a police vehicle. Defendant again was convicted of
reckless driving.
	       Before the trial court, the state argued that that
other acts evidence was relevant for nonpropensity pur-
poses, viz., to prove “motive and knowledge” and to show
Cite as 361 Or 370 (2017)	373

defendant’s “criminal intent and in this case the awareness
and disregard, and the recklessness.” Defendant argued
that the evidence should be excluded because it was not rele-
vant for any nonpropensity purpose and that, even if it were
relevant, its probative value was substantially outweighed
by the danger of unfair prejudice, under OEC 403. The state
countered that balancing was not required “unless [there
was] some sort of constitutional issue at stake.” Without
stating whether it had engaged in any sort of balancing, the
trial court admitted the evidence. Defendant was convicted
of all charges.
	        On appeal to the Court of Appeals, defendant
assigned error to the trial court’s admission of the other
acts evidence. Id. at 777. Defendant initially challenged
the admission of that evidence as improper character evi-
dence under OEC 404(3). Id. After this court’s decision in
State v. Williams, 357 Or 1, 346 P3d 455 (2015), defendant
filed a supplemental brief arguing that, under Williams, the
trial court was required to conduct OEC 403 balancing to
determine whether the other acts evidence was admissi-
ble. Mazziotti, 276 Or App at 777. The state responded that,
although the trial court had not explicitly stated whether it
had conducted OEC 403 balancing, the court implicitly had
done so. Id. The state also argued, in the alternative, that,
even if the court had not conducted OEC 403 balancing,
the balancing required under Williams is purely a “legal,
due process question,” and that the Court of Appeals there-
fore could conduct the balancing itself, without remand. Id.
The Court of Appeals rejected the state’s arguments and
held that, “where a defendant requests that the trial court
exclude other acts evidence under OEC 403 because the pro-
bative value of the evidence is outweighed by the danger of
unfair prejudice, it is error for the court to admit the other
acts evidence without first conducting OEC 403 balancing.”
Id. at 780. Because the Court of Appeals could not conclude
that the trial court’s error was harmless, it reversed defen-
dant’s convictions and remanded the case for a new trial. Id.
at 780-81.
	       The state sought, and we granted, review. The state
argues that we should reverse the decision of the Court of
Appeals and affirm the judgment of the trial court because
374	                                        State v. Mazziotti

the trial court was not required to conduct “traditional” OEC
403 balancing and admission of the challenged evidence did
not violate due process. If this court disagrees, the state con-
tends, we should order a remand, but only for rebalancing,
and not for a new trial.
	        Our decision today in State v. Baughman, 361 Or
386, __ P3d __ (2017), answers the state’s first argument. In
Baughman, we held that, in a criminal case, when a defen-
dant objects to other acts evidence that is relevant only to
prove the defendant’s character under OEC 404(4), the trial
court must conduct balancing under OEC 403, according to
the terms of that rule, to determine whether the probative
value of the evidence is substantially outweighed by the risk
of unfair prejudice. Id. at 402. The same is required when a
defendant objects to other acts evidence that is relevant for
a nonpropensity purpose under OEC 404(3). Id. at 404. The
difference is not in the nature of the balancing, but in the
likely result. As we explained in Baughman, nonpropensity
evidence generally will be admissible under OEC 403, but
evidence of defendant’s character generally will not. Id. at
405. The latter category of evidence poses a more substan-
tial risk of unfair prejudice and raises greater due process
concerns. Id. Thus, the first step in conducting an analysis
of the admissibility of other acts evidence is to determine
whether the evidence is relevant for a nonpropensity pur-
pose. Id. at 404.
	        In this case, the state proffered evidence of defen-
dant’s previous police encounters and driving-related con-
victions for a nonpropensity purpose, that is, to establish an
element of two of the charged crimes—reckless endanger-
ment and reckless driving. The state argued that the chal-
lenged evidence tended to prove that defendant had a sub-
jective awareness of the risks of driving at excessive speeds
and in an unsafe manner but chose to disregard those risks,
establishing that defendant drove with a reckless state of
mind. Defendant countered that he had done everything that
he could to avoid the accident and that he had left the scene
only to get immediate medical help. Defendant objected to
the proffered evidence as not relevant for any nonpropensity
purpose under OEC 404(3) and as inadmissible under OEC
403.
Cite as 361 Or 370 (2017)	375

	         The trial court did not expressly determine the pur-
poses for which it considered the evidence, and it did not
conduct OEC 403 balancing. The state acknowledges that,
“[g]iven the affirmative suggestion in the record that the
trial court may have been conducting due process balanc-
ing,” it is not fair to assume that the court in fact conducted
“ordinary” OEC 403 balancing according to the terms of
that rule. Consequently, we conclude, as did the Court of
Appeals, that the trial court erred.
	        The state does not contend that that error was
harmless; it acknowledges that the record does not demon-
strate “that the admission of the other acts evidence did not
contribute to the verdict.” Instead, the state argues, as it
did in Baughman, that we should not remand this case for
retrial; we should remand to allow the trial court to correct
its “procedural error,” by conducting OEC 403 balancing.
If the trial court then determines that the challenged evi-
dence is admissible, a retrial will not be necessary. Before
we address the state’s argument, we pause to consider
defendant’s argument that it is not a retrial, but OEC 403
balancing, that is unnecessary. Defendant reasons that,
when a defendant is not charged with child sexual abuse
but is instead charged with another type of crime, evidence
that goes to character is categorically inadmissible. Because
that is the circumstance here, defendant argues, the trial
court, on remand, must preclude the challenged evidence as
a matter of law and grant him a new trial. See Williams,
357 Or at 17 (noting that, if defendant had been charged
with crimes other than child sexual abuse, court might be
persuaded that due process precludes the admission of other
acts evidence).
	        The distinction that defendant makes between evi-
dence offered to prove a defendant’s propensity to commit
sexual abuse and evidence offered to prove other criminal
acts is an important one. However, in this case, the evidence
that defendant challenges is not offered solely to prove defen-
dant’s propensity to commit the charged acts. The evidence
that defendant had, on two prior occasions, driven at high
rates of speed under dangerous circumstances was evidence
of defendant’s subjective awareness of the risks that such
conduct posed and was relevant to an element of two of the
376	                                        State v. Mazziotti

charged crimes. Defendant may be correct that some of the
other acts evidence proffered by the state—for instance, his
conviction for attempting to elude—was relevant only to his
character. However, the fact that other evidence proffered
by the state undoubtedly was relevant for a nonpropen-
sity purpose means that the evidence as a whole cannot be
considered solely character evidence subject to categorical
exclusion. Consequently, we need not decide, at this junc-
ture, whether evidence admitted in a criminal case, other
than a prosecution for child sexual abuse, solely to prove a
defendant’s propensity to commit the charged acts, neces-
sarily would violate due process.
	        Turning back to the state’s contention that a lim-
ited remand is the appropriate remedy in this case, we
again find our response in Baughman determinative. 361
Or at 410-11. As we did there, we leave the decision about
the appropriate proceedings on remand to the trial court.
We recognize that, on remand, the trial court may exclude
at least some of the other acts evidence that it previously
admitted and that, as a consequence, retrial may be neces-
sary. See id. at 403 (noting that other acts evidence that goes
only to character generally will have little or no cognizable
probative value and will present increased danger of unfair
prejudice and significant due process concerns). However,
that decision and others are for the trial court in the first
instance. Consistently with Baughman, we remand to the
trial court for a determination of the relevant purposes of
other acts evidence that the state proffers under OEC 404(3)
or OEC 404(4), balancing under OEC 403, and a determina-
tion of whether a new trial is necessary or appropriate.
	       The decision of the Court of Appeals is affirmed.
The judgment of the trial court is reversed, and the case is
remanded to the trial court for further proceedings, consis-
tently with this opinion.
