No. 23	                         April 27, 2017	377

               IN THE SUPREME COURT OF THE
                     STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
               EDWARD JONES ZAVALA,
                 Respondent on Review.
   (CC 122847, 130820; CA A154491 (Control), A154492;
                 SC S064072) (Control)
                  STATE OF OREGON,
                 Respondent on Review,
                             v.
               EDWARD JONES ZAVALA,
                   Petitioner on Review.
   (CC 122847, 130820; CA A154491 (Control), A154492;
                       SC S064051)

    On review from the Court of Appeals.*
    Argued and submitted November 14, 2016.
  Erica Herb, Deputy Public Defender, argued the cause
and filed the briefs for petitioner on review Edward Zavala
and respondent on review Edward Zavala. Also on the briefs
was Ernest G. Lannet, Chief Defender, Office of Public
Defense Services.
   Doug M. Petrina, Assistant Attorney General, argued
the cause and filed the brief for respondent on review State
of Oregon and petitioner on review State of Oregon. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, and Nakamoto, Justices, and Baldwin,
Senior Justice, Justice pro tempore.**
______________
	**  On appeal from a judgment of the Lincoln County Circuit Court, Thomas
O. Branford, Judge. 276 Or App 612, 368 P3d 831 (2016).
	   **  Flynn, J., did not participate in the consideration or decision of this case.
378	                                                           State v. Zavala

    WALTERS, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
    Case Summary: Today, the Oregon Supreme Court held that, in this prose-
cution for child sexual abuse, even assuming that defendant preserved his argu-
ment that the trial court erred in failing to conduct balancing under OEC 403,
the trial court’s error, if any, did not significantly affect the court’s decision to
admit the evidence. The Court explained that, in this case, the trial court admit-
ted the challenged other acts evidence for the nonpropensity purpose of proving
defendant’s sexual predisposition for the victim. The trial court gave defendant
an opportunity to argue that his case was different, but defendant did not do so or
argue that the particular facts of his case demonstrated a risk of unfair prejudice
that substantially outweighed the probative value of the evidence. Accordingly,
the Court concluded, the trial court’s failure to conduct balancing under OEC 404
did not significantly affect its decision to admit that evidence.
    The Court reversed the decision of the Court of Appeals and affirmed the
judgment of the circuit court.
Cite as 361 Or 377 (2017)	379

	       WALTERS, J.
	        In this case, a prosecution for child sex abuse, the
trial court admitted other acts evidence over defendant’s
objection and without conducting OEC 403 balancing. The
Court of Appeals concluded that that failure to balance was
error apparent on the record under ORAP 5.45(1), in light of
this court’s decision in State v. Williams, 357 Or 1, 346 P3d
455 (2015), and exercised its discretion to correct the error.
State v. Zavala, 276 Or App 612, 614, 368 P3d 831 (2016).
The Court of Appeals vacated defendant’s convictions and
remanded to the trial court to permit that court to conduct
OEC 403 balancing and determine whether defendant was
prejudiced by the admission of the challenged evidence. Id.
at 622. For the reasons that follow, we reverse the decision of
the Court of Appeals and affirm the trial court’s judgment of
conviction.
	        Defendant was charged with three counts of first-
degree sexual abuse of K and T, the daughters of defendant’s
ex-girlfriend. Defendant admitted to tickling the victims,
but he denied that he had intentionally touched a sexual
or intimate part of the victims with a sexual purpose. To
sustain a conviction under ORS 163.305(6), the state was
required to prove that the contact was “for the purpose
of arousing or gratifying the sexual desire of” defendant.
During defendant’s bench trial, the state sought to intro-
duce evidence of an uncharged incident of inappropriate sex-
ual conduct by the defendant against one of the victims, in
the form of the testimony of a former coworker of the victims’
mother. Defendant objected to the testimony, arguing that it
was “an inadmissible prior bad act.” The court stated that
the evidence appeared to be admissible for the nonpropen-
sity purpose of proving defendant’s sexual predisposition for
the victim, under State v. McKay, 309 Or 305, 308, 787 P2d
479 (1990), but the court invited the parties to conduct addi-
tional research and raise the issue later. Defendant did not
raise the issue again, and the trial court found defendant
guilty on all three counts.
	        Defendant appealed to the Court of Appeals, assign-
ing error to the trial court’s admission of the uncharged mis-
conduct evidence. The Court of Appeals affirmed without
380	                                                           State v. Zavala

opinion. State v. Zavala, 270 Or App 351, 350 P3d 234 (2015).
Thereafter, this court decided Williams, and defendant peti-
tioned for reconsideration in light of that case, arguing that
the trial court had erred in failing to subject the other acts
evidence to OEC 403 balancing.
	        The Court of Appeals granted defendant’s petition
and considered defendant’s argument to be unpreserved.
Zavala, 276 Or App at 616-17. Nevertheless, the court eval-
uated whether there was error “apparent on the face of
the record,” under ORAP 5.45(1). Id. at 617. To make that
decision, the court looked to whether the trial court’s fail-
ure to conduct balancing under OEC 403 was error when
measured against the law at the time of the petition for
reconsideration, not the law as it existed at the time of the
trial court’s decision. Id. (citing State v. Jury, 185 Or App
132, 139, 57 P3d 970 (2002), rev den, 335 Or 504, 72 P3d
636 (2003)). Under that rubric, the court concluded that,
because Williams requires OEC 403 balancing and because
it was apparent from the record that the trial court had
not engaged in that balancing, the error was “plain.”1 Id. at
617-18.
	        The next step in the Court of Appeals’ analysis
was to decide whether to exercise its discretion to correct
that error. Id. at 618. First, the court said, “the error was
grave and the ends of justice incline toward correcting it.”
Id. Second, the court determined, “exercising our discretion
in this case to correct the error would not undermine the
policies behind the general rule requiring preservation.” Id.
The court understood Williams to require that a defendant
request balancing, but considered as countervailing factors
both that, pre-Williams, “the essential role of OEC 403 bal-
ancing was not manifest” and that failure to conduct that
balancing could be corrected by a limited remand for that
purpose. Id. The court explained that “defendant may not
have been at all prejudiced by the trial court’s failure to con-
duct OEC 403 balancing”; if the court had balanced, it may
have admitted the evidence. Id. at 621. As a result, the court
	1
       When used to describe a trial court’s ruling that was not erroneous under
existing law, the term “plain error” is a misnomer; it does not imply any mistake
by a trial court. Instead, it is a label that an appellate court uses when it decides
that a party is entitled to a benefit of a change in the law.
Cite as 361 Or 377 (2017)	381

deemed it unclear “that an outright reversal is permitted or
appropriate.” Id. In that circumstance, the court said,
   “a conditional remand is appropriate because, in essence,
   we have an inadequate record on which to conduct plain
   error review; a conditional remand offers a means to bal-
   ance the defendant’s interest in having his trial conducted
   in a manner that complies with due process, with the con-
   stitutional and prudential constraints on reversing judg-
   ments when the harm to the defendant is speculative on
   the record before the appellate court.”
Id. at 622. The court vacated defendant’s convictions and
remanded the case to the trial court for balancing. Id.
	        Both parties petitioned for review in this court, and
we allowed review of both petitions. In this court, each party
challenges a different aspect of the Court of Appeals’ analy-
sis. The state challenges the court’s conclusion that the trial
court’s failure to balance constitutes “plain error.” The state
argues that, when evidence is offered under OEC 404(4), a
trial court has no duty to conduct OEC 403 balancing unless
a party specifically requests it. Because defendant in this
case did not do so, the state contends, the trial court neither
erred nor committed “plain error.” Defendant, on the other
hand, applauds the Court of Appeals’ “plain error” analysis
but challenges its decision to remand the case to the trial
court for rebalancing. Retrial, defendant argues, is required.
	        Before we address ORAP 5.45(1) and how it may
apply in this case, we think it important to clarify the pur-
pose for which the challenged evidence was admitted and
the rules of evidence that govern its admission. In State
v. Baughman, 361 Or 386, 403-04, __ P3d __ (2017), also
decided today, this court clarified what it meant when it said,
in Williams, that, in criminal cases, OEC 404(4) supersedes
OEC 404(3). We explained that OEC 404(4) supersedes only
the first sentence of OEC 404(3) and that a trial court may
admit nonpropensity evidence under the second sentence of
that rule:
   “In criminal cases, OEC 404(4) makes other acts evidence
   admissible to prove a defendant’s character, subject to
   specified rules of evidence and the state and federal con-
   stitutions. Consequently, OEC 404(4) supersedes the first
382	                                                 State v. Zavala

      sentence of OEC 404(3), which provides that ‘[e]vidence of
      other crimes, wrongs or acts is inadmissible to prove the
      character of a person in order to show that the person acted
      in conformity therewith.’ (Emphasis added.) However,
      OEC 404(4) does not supersede the second sentence of
      OEC 404(3), which provides that other acts evidence ‘may
      be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity,
      or absence of mistake or accident.’ If other acts evidence is
      not proffered to prove a defendant’s character, but instead
      is offered for a nonpropensity purpose, then analysis under
      OEC 404(4) is unnecessary; the evidence ‘may be admissi-
      ble’ under the second sentence of OEC 404(3).”
Id.
	        In this case, the trial court admitted evidence of
defendant’s uncharged sexual acts for the nonpropensity
purpose of demonstrating defendant’s sexual predisposition
for the victim. See McKay, 309 Or at 308 (holding prior acts
evidence involving same victim admissible to “demonstrate
the sexual predisposition this defendant had for this par-
ticular victim”). That evidence was relevant under the sec-
ond sentence of OEC 404(3) and admissible under OEC 403,
unless its probative value was substantially outweighed by
the danger of unfair prejudice. Baughman, 361 Or at 404.
	         When we then consider ORAP 5.45(1), it is there-
fore more correct to focus not on the steps that a party must
take to preserve an objection to the admission of evidence
under OEC 404(4), but on the steps that a party must take
under OEC 404(3). Whether we focus on OEC 404(4) or OEC
404(3), however, the state is correct that, when a party con-
tends, on appeal, that a trial court erred in admitting other
acts evidence, the party generally is required to demonstrate
that it objected to that evidence. See State v. Turnidge, 359
Or 364, 430, 374 P3d 853 (2016) (court assesses admissibil-
ity of evidence under OEC 404(3) and OEC 403 “in response
to a proper motion”); Williams, 357 Or at 19 (when party
objects to evidence offered under OEC 404(4), trial court
must conduct balancing under OEC 403).
	       In this case, defendant met that requirement: He
objected to the evidence of defendant’s uncharged acts of
abuse as “improper character evidence.” Thus, when the
Cite as 361 Or 377 (2017)	383

state argues that trial courts should not be required to
“comb through evidence on their own to see if any part might
be objectionable,” it is making an argument that is inappo-
site. The state’s more pertinent argument is that, when a
party objects to evidence proffered for a nonpropensity pur-
pose under OEC 404(3), the party specifically must request
balancing under OEC 403, or balancing is not required.
Whether that was required, pre-Williams, was not entirely
clear.
	        In pre-Williams cases, parties generally objected
to the improper admission of other acts evidence that was
offered for nonpropensity purposes as improper character
evidence, under OEC 404(3). See State v. Andrews, 262 Or
App 161, 164-65, 324 P3d 534 (2014) (characterizing parties’
arguments before trial court as focusing on admissibility of
other acts evidence under OEC 404(3)). In State v. Shaw,
338 Or 586, 611-12, 113 P3d 898 (2005) (quoting State v.
Johnson, 313 Or 189, 195, 832 P2d 443 (1992)), this court
explained that a three-part test governs the admissibility
of other acts evidence under OEC 404(3), which includes
determining whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice
under OEC 403:
   “ ‘(1) The evidence must be independently relevant for a non-
   character purpose * * *; (2) the proponent of the evidence
   must offer sufficient proof that the uncharged misconduct
   was committed and that defendant committed it; and
   (3) the probative value of the uncharged misconduct evi-
   dence must not be substantially outweighed by the dangers
   or considerations set forth in OEC 403.’ ”
However, after Shaw, the Court of Appeals continued
to hold, as it had before Shaw, that, when other acts evi-
dence is proffered for a nonpropensity purpose, OEC 404(4)
“essentially prohibits balancing ‘the probative value of rele-
vant uncharged misconduct evidence against its prejudicial
effect.’ ” Andrews, 262 Or at 167 (quoting State v. Teitsworth,
257 Or App 309, 316 n 4, 304 P3d 793 (2013)). Thus, in this
case, the trial court may not have understood defendant’s
OEC 404(3) objection as seeking application of Shaw’s three-
part test, and the trial court could have been adhering to
the instruction of the Court of Appeals in Andrews when it
384	                                                      State v. Zavala

admitted the evidence of defendant’s uncharged misconduct
without balancing under OEC 403.
	       Because it was unclear, pre-Williams, whether bal-
ancing was required in response to an objection under OEC
404(3), post-Williams appellate review of cases tried pre-
Williams poses thorny questions. On the one hand, it seems
counterintuitive to say that, in a pre-Williams case, a trial
court committed error, much less plain error, by not con-
ducting OEC 403 balancing, when the trial court reasonably
could have understood that such balancing was prohibited.
And, because other acts evidence offered for a nonpropensity
purpose often will have probative value that outweighs the
unfair prejudice that it poses, admission of such evidence is
not necessarily erroneous. As we said in Williams, 357 Or at
19, and reiterated in Baughman, 361 Or at 405,
    “ ‘other acts’ evidence that is offered for nonpropensity
    purposes—i.e., to prove motive, intent, identity, or lack of
    mistake or accident—generally will be admissible as long
    as the particular facts of the case do not demonstrate a risk
    of unfair prejudice that outweighs the probative value of
    the evidence.”
On the other hand, in this case, defendant arguably pre-
served his OEC 403 argument under Shaw and, even if he
did not, his failure to do so does not necessarily preclude
appellate review under ORAP 5.45(1).
	        We need not work our way through that briar patch
today.2 Even giving defendant the benefit of the doubt and
assuming, for the purposes of this case, that he preserved
his argument that the trial court erred in failing to con-
duct balancing under OEC 403, the trial court’s error, if any,
did not significantly affect the court’s decision to admit the
evidence.
	       This is not a case, like Baughman, in which the
court committed legal error by giving the challenged evi-
dence weight for nonpropensity purposes when it was not rel-
evant for those purposes. 361 Or at 410-11. As we explained
in Baughman, such an error may significantly affect the

	2
      We also need not decide what a defendant must do, post-Williams, to pre-
serve an objection to the admission of other acts evidence.
Cite as 361 Or 377 (2017)	385

court’s decision about whether to admit the evidence. Id. at
409. Rather, this is a case, like McKay, 309 Or at 308, in
which the evidence appeared to be relevant for a nonpropen-
sity purpose—to prove defendant’s sexual disposition for the
victim. Such nonpropensity evidence is generally admissi-
ble, unless, of course, the particular facts demonstrate a risk
of prejudice that substantially outweighs its probative value.
Williams, 357 Or at 19-20; Shaw, 338 Or at 612. At trial
in this case, the court cited McKay and gave defendant an
opportunity to argue that his case was different. Defendant
did not contend that it was or that the particular facts of his
case demonstrated a risk of unfair prejudice that substan-
tially outweighed the probative value of the evidence. See
Williams, 357 Or at 19 (permitting that demonstration). And
defendant again fails to make either argument before this
court.3 In the absence of a meritorious argument that could
persuade a trial court to exclude the challenged evidence,
we conclude that the trial court’s failure to conduct balanc-
ing under OEC 403 did not significantly affect its decision
to admit that evidence. Consequently, we also conclude that
there was little likelihood that the trial court’s error affected
its judgment of conviction. See State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003) (error requires reversal unless review-
ing court can conclude that there was little likelihood that
trial court’s error affected conviction).
	       The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.




	3
       In this court, defendant contends that his theory of the case was that the
victims’ mother was angry with him and that she convinced the victims to fal-
sify their accusations against defendant. Thus, defendant argues, evidence that
another woman saw defendant commit uncharged acts of abuse was extremely
prejudicial because it directly refuted defendant’s theory. The problem with that
argument is that it does not take into consideration the cognizable probative
value of the evidence—to establish that defendant had a sexual predisposition
toward the victims. Defendant does not argue that any unfair prejudice that the
evidence poses substantially outweighs that probative value.
