State v. Davis

618                            July 25, 2024                           No. 27

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                   STATE OF OREGON,
                    Petitioner on Review,
                              v.
                THOMAS ALAN DAVIS, JR.,
                   Respondent on Review.
          (CC 131383CR) (CA A169891) (SC S069688)

   On review from the Court of Appeals.*
   Argued and submitted May 11, 2023.
   Doug Petrina, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   David O. Ferry, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the briefs
for respondent on review. Also on the briefs was Ernest G.
Lannet, Chief Deputy Defender, Criminal Appellate Section.
  Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog,
James, and Masih Justices, and Balmer, Senior Judge,
Justice pro tempore.**
   JAMES, J.
   The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
   Duncan, J., concurred and filed an opinion.
  Garrett, J., concurred and filed an opinion, in which
DeHoog, J., joined.
______________
    * Appeal from Washington County Circuit Court, James Lee Fun, Jr.,
Judge. 

, 

 (2022).
    ** Bushong J., did not participate in the consideration or decision of this
case. Baldwin, Senior Judge, Justice pro tempore, participated in oral argument,
but did not participate in the consideration or decision of this case.
Cite as 

 (2024)   619
620                                              State v. Davis

         JAMES, J.
         In this case, we return again to the subject of “other
acts” evidence, character, propensity, and OEC 403 balanc-
ing. The state prosecuted defendant for attacking a woman,
a complete stranger, who was jogging by him on a sidewalk.
Defendant tackled the victim from behind, knocking her out,
and then dragged her into a secluded nearby ditch. The victim
eventually fought off the attack, and defendant fled the scene.
Defendant was charged with, among other things, attempted
first-degree sexual abuse—a crime that requires a specific
intent to sexually assault. However, in this case, the state
faced a problem: There was no direct evidence that defendant
intended to sexually assault the victim. Therefore, to prove
that intent at trial, the state offered evidence of highly offen-
sive, sexually explicit notes that defendant had previously
written and delivered to two other women whom he did not
know in the weeks preceding the attack on the victim. In
those two notes, defendant expressed his desire to forcibly sex-
ually assault the two women. The trial court admitted those
notes, over defendant’s objection, relying upon OEC 404(3),
which provides that other acts evidence otherwise inadmissi-
ble under OEC 404(3) may “be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Once
admitted, the state asked the jury to infer from those two
notes that, when defendant physically attacked the victim in
this case, he had the intent to ultimately sexually assault her.
Defendant was convicted on all charges.
        On defendant’s first appeal, the Court of Appeals
held that the notes were inadmissible character evidence
under OEC 404(3), because the relevance of the notes to
defendant’s motive to commit a sexual assault depended on
a character-based propensity inference. State v. Davis, 

, 

 (2018) (Davis I). The Court of
Appeals remanded the case to the trial court for a determi-
nation of whether the notes were nevertheless admissible
under OEC 404(4). Admission under OEC 404(4) is limited
by OEC 403, which provides that otherwise admissible evi-
dence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.”
Cite as 

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         On remand, the trial court ruled that the notes
were admissible under OEC 404(4) and exercised its discre-
tion to not exclude the evidence under OEC 403. On appeal
from that ruling, the Court of Appeals, in a divided opinion,
ruled that the trial court had abused its discretion in failing
to exclude the evidence under OEC 403, because the danger
of unfair prejudice resulting from the admission of the notes
substantially outweighed the notes’ probative value. State v.
Davis, 

, 

 (2022) (Davis II).
          We allowed the state’s petition for review. Before
this court, the state argues that the Court of Appeals erred
in holding that the trial court abused its discretion under
OEC 403 in admitting the evidence. Defendant argues that
the Court of Appeals was correct, or, in the alternative, that
if the trial court was within its discretion to admit the evi-
dence under OEC 403, principles of due process prohibited
the use evidence “offered only to prove propensity.” For the
reasons explained below, we conclude that the trial court’s
decision to not exclude the notes evidence under OEC 403
was within the permissible range of discretion. As we
explain, we decline to address defendant’s alternative argu-
ment under the Due Process Clause because that argument
was not preserved before the trial court. Accordingly, we
reverse the decision of the Court of Appeals and remand the
case to that court for further proceedings.
    I. FACTS AND PROCEDURAL BACKGROUND
        In 2012, the victim was jogging on a sidewalk
near her home when defendant tackled her from behind,
knocking her out temporarily. Defendant dragged the vic-
tim face down off the sidewalk and placed her in a secluded
ditch nearby. The victim came to and began to fight back.
Defendant stood over her and held one of her hands down.
The victim was able to flip herself over, and, using her other
hand, shoved two of her gloved fingers into defendant’s
mouth. Defendant then ran away. The victim suffered abra-
sions and an injury to her shoulder.
        The victim could not identify her attacker but test-
ing of her glove revealed defendant’s DNA. Defendant was
charged with first-degree kidnapping under ORS 163.235,
622                                                             State v. Davis

fourth-degree assault under ORS 163.160, and attempted
first-degree sexual abuse under ORS 163.427. To prove
attempted sexual abuse, the state was required to prove
that defendant intended to forcibly subject the victim to sex-
ual contact when he physically attacked her.1
         Defendant did not say or do anything during the
attack that amounted to direct evidence of a sexual motive. To
prove defendant’s sexual intent, therefore, the state offered
evidence that, in the weeks preceding the attack, defendant
had left handwritten notes on the cars of two female strang-
ers at two different store parking lots. Both notes graphi-
cally expressed, in nearly identical terms, defendant’s desire
to engage in violent, painful anal sexual intercourse with
the women.2 Defendant left one of the notes approximately
two months before the attack on the victim in this case, and
he left the other note ten days before the attack. Defendant
admitted authoring the notes, but claimed that they were
not directed to strangers, but rather left for his girlfriend.
        In opening statements to the jury, the prosecutor
referenced the notes, stating:
      “[PROSECUTOR]:               * * * What was his intent? What
    was his motive?
       “And the evidence that—part of the evidence of that
    point are some statements that [defendant] had been mak-
    ing in the weeks leading up to this particular attack.
       “He had been going—he’d been leaving these notes for
    women he had never met before, complete strangers to
    him.”
     1
       See ORS 163.427(1)(a)(B) (defining first-degree sexual abuse as “subject[ing]
another person to sexual contact” in circumstance where the victim “is subject to
forcible compulsion by the actor”); ORS 163.305(5) (defining “sexual contact” as
“any touching of the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor for the purpose of
arousing or gratifying the sexual desire of either party”); ORS 161.405(1) (defin-
ing attempt as “intentionally engag[ing] in conduct which constitutes a substan-
tial step toward the commission of” a crime).
     2
       As described by the Court of Appeals,
    “[t]he two notes are very similar: Both are written in the second person (using
    the words ‘you’ and ‘your’), both graphically describe the women’s bodies, and
    both express, in nearly identical terms, a desire to engage in anal intercourse
    with the women in a way that would cause them pain.”
Davis I, 

.
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        This prompted an objection from defense counsel
on OEC 404 grounds and discussions outside the presence
of the jury. In response, the state argued that the notes
were not “other acts” evidence at all, but rather, properly
conceived of only as hearsay—statements of defendant that
showed his thoughts, offered to prove sexual intent:
      “[PROSECUTOR]: So the—my intent all along was to
  offer these notes into evidence in this case, not to prove
  that [defendant] is the perpetrator that attacked [the vic-
  tim]. That can be done through DNA and other purposes.
     “* * * * *
     “These notes would be offered solely to prove [defen-
  dant’s] intent. Because frankly, [j]udge, identity is not my
  problem in this case, but intent is, and I’m being very can-
  did here.
     “* * * * *
     “* * * [T]o me the notes are being offered as party oppo-
  nent admissions, so they’re statements of the defendant
  that I’m offering to prove that his intent was to have sexual
  contact with a woman, with a woman that he didn’t know.
     “* * * [T]he analogy is this is no different than the defen-
  dant sitting next to his buddy and saying, ‘I’m going to go
  out, and, you know, and rape me a woman tonight,’ or some-
  thing like that. ‘I’m going to go out there and—and take
  what I want from this—from this woman.’
     “* * * * *
      “* * * [T]he notes would be offered as a party opponent
  admission in—in no different way than if I called a friend
  of the defendant to the stand who would say, ‘You know, the
  defendant told me these things.’
     “I’m not offering them as a part of that act contrary to
  what my opponent has asserted a couple times today. The
  defendant is not accused of sexually assaulting anybody
  else, nor do I intend to suggest to the jury that he has.
     “* * * * *
    “* * * [T]hese are being offered not as prior bad acts
  under 404—
     “* * * * *
624                                                State v. Davis

     “—but as relevant statements of the defendant [under
   OEC] 403. * * *
      “* * * * *
       “Even though the notes are in some ways almost shock-
   ing when you see the little illustration, the—the—the
   reason they’re shocking is because they’re so darn proba-
   tive. They’re so darn informational about the defendant’s
   intent.”
        At a later hearing, the state reiterated its theory of
relevance:
      “[PROSECUTOR]: * * * These are the defendant’s own
   words. These—these—these are things that the defendant
   himself said.
       “And he said it about strange women. He said it about
   violent sex. And he clearly expressed his intent to want to
   sexually assault a strange woman.
       “If these notes said something like, you know, ‘Heil
   Hitler, I am a Nazi,’ or, you know, some other very, very
   inflammatory, but unrelated topic, which they don’t, then
   there would be a good argument that, ‘Hey, the [s]tate’s just
   trying to paint my—a picture of my client as a bad guy.
      “And—and that’s not the case. * * *
       “We are offering the notes to summarize as relevant
   evidence of the defendant’s—a statement of the defendant
   relevant to his—his intent, his motive. And it is distinct
   from any evidence we might be offering as past conduct
   that he has engaged in with respect to any acts.
      “Because—for those reasons we don’t go through a[n]
   [OEC 404(3)] analysis, but we do go through a basic rele-
   vance test.”
         The trial court accepted defendant’s arguments
that the notes should be viewed as “other acts” evidence
under OEC 404, but agreed with the state that they were
admissible as evidence of intent. However, it redacted some
of the more graphic and inflammatory statements from the
notes, and it limited the state’s presentation of the evidence
to the fact that defendant had penned the notes and had left
them, in public places, on the vehicles of two women whom
he did not know.
Cite as 

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        On direct examination of the investigating officer,
the state introduced the following testimony about circum-
stances surrounding the discovery of the notes:
        “[PROSECUTOR]: Did you recently—by ‘recently’ I
    mean about a year and five months ago—become involved
    in an investigation regarding some notes that were being
    left on women’s vehicles?
        “[OFFICER]:        Yes, sir.
        “[PROSECUTOR]: All right. Were those notes being
    left in vehicles that were in public places, specifically in
    shopping centers?
        “[OFFICER]:         Yes, sir.”
         The state then introduced the redacted notes into
evidence, and their contents were read to the jury. The offi-
cer also testified that defendant had admitted leaving the
notes and that he did not know either of the women on whose
cars he left the notes. At the conclusion of the trial, the court
delivered a limiting jury instruction concerning the two
notes, advising the jury that the notes “may only be consid-
ered for their value, if any, in determining the defendant’s
motive in committing the alleged crimes” and that they
could be considered “only if the jury has first determined
that defendant is, in fact, the person involved in the alleged
crimes.” The jury found defendant guilty on all charges.3
         Defendant appealed his convictions to the Court
of Appeals, assigning error to, among other things, the
trial court’s ruling admitting the two notes as evidence of
defendant’s motive or intent in attacking the victim.4 The
     3
       The trial court imposed the presumptive sentence of life without the possi-
bility of parole for the conviction for attempted first-degree sexual abuse, because
defendant had two previous convictions and sentences for felony sex crimes: In
2000, defendant was convicted of sexual exploitation of a minor, and in 2009, he
was convicted of attempted first-degree sexual abuse. See ORS 137.719(1) (estab-
lishing life without the possibility of parole as presumptive sentence for a sex
crime where the defendant has been sentenced for felony sex crimes at least two
times prior to the current sentence).
     4
       Defendant also argued that the trial court erred in failing to grant his
motion for judgment of acquittal on the attempted first-degree sexual abuse con-
viction and in imposing a sentence of life without the possibility of parole on that
conviction. The Court of Appeals held that the trial court did not err in denying
defendant’s motion for judgment of acquittal, because there was sufficient evi-
dence in the record for a rational juror to find beyond a reasonable doubt that
626                                                         State v. Davis

Court of Appeals reversed, holding that the notes were not
admissible as noncharacter evidence of motive or intent
under OEC 404(3), because “the logical relevance of the note
depends on a character-based inference, i.e., that defendant
has a propensity to commit acts of sexual violence against
female strangers.” Davis I, 

. The court fur-
ther concluded that the error was not harmless. 

 at 257-
58. The court declined to address the state’s argument on
appeal that, even if the notes did invoke a character-based
propensity inference, they were admissible under OEC
404(4), because the state had not raised that issue below.

. For that reason, it remanded the case to the trial
court for a determination of the admissibility of the notes
evidence under OEC 404(4).
         On remand, the trial court determined that the
notes were admissible under OEC 404(4). That rule pro-
vides that, “[i]n criminal actions, evidence of other crimes,
wrongs or acts by the defendant is admissible if relevant,
except as otherwise provided by” certain other evidentiary
rules, including OEC 403, the Oregon Constitution, and
the United States Constitution. OEC 404(4). The trial court
found that the notes were relevant evidence that demon-
strated defendant’s interest in violent, nonconsensual
sex with strangers and explained defendant’s purpose in
attacking the victim:
       “I do conclude that this evidence is an inference of behav-
   ioral disposition or propensity that relies upon a chain of
   inferences that employs the evidence—that is the notes—to
   establish that defendant is more inclined to act or think in
   a given way [than] is typical and is, therefore, more likely
   to have acted or thought that way on a particular occasion,
   which is exactly what the issue in this case was.
      “It is whether or not defendant acted or thought the way
   charged by the [s]tate on this particular occasion. That is
   the central issue. When viewed in that light, the evidence
   does explain that act.
       “* * * * *

defendant intended to subject the victim to sexual contact when he attacked her.
Davis I, 

. The court declined to address defendant’s argu-
ment concerning sentencing, given its conclusion that the trial court erred in
admitting the notes and that that error required remand. 

 at 262 n 6.
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      “And as I’ve said earlier, in the [c]ourt’s opinion, on a
   character analysis, there is sufficient evidence, the evi-
   dence that [defendant] is more inclined to think or act in
   a given way than is typical and, therefore, more likely to
   have acted or thought that way on a particular occasion.
   There is a logical connection between other acts evidence
   and the charged offense.”
The court also considered the notes evidence under OEC
4035 and found that the probative value of the notes was not
substantially outweighed by the danger of unfair prejudice.
The court observed that the trial court, in the original trial,
had redacted the notes to reduce their prejudicial effect and
that it had given a special jury instruction to focus the jury’s
attention on the act at issue in the case and to restrict the
use of the evidence.
           The trial court then concluded,
      “* * * [The notes are] admissible, in the [c]ourt’s opin-
   ion, under OEC 404(4). [They are] admissible to explain the
   defendant’s purpose [or] motive for attacking the victim;
   give[ ] rise to reasonable inference, which is a general inter-
   est in violent, nonconsensual sex with women he does not
   know; and relevant to explain purpose or motive for the
   attack.
      “There is a general interest in nonconsensual sex with
   females that are strangers, which is probative of whether
   defendant intended to have sexual contact with the victim
   when he attacked her on this occasion. That inference of a
   peculiar sexual interest in nonconsensual sex with female
   strangers is probative of that general interest to prove
   he was acting in conformity with that interest when he
   attacked the victim in the incident case.”
The trial court ruled that a new trial was unnecessary, and
it reinstated the original judgment.
         Defendant appealed that ruling to the Court of
Appeals, arguing that the notes were not relevant to the
issues in the case, and that, even if they were relevant, the
   5
       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.”
628                                                            State v. Davis

notes should have been excluded under OEC 403, because
the danger of unfair prejudice substantially outweighed any
probative value of the evidence. The Court of Appeals agreed
with defendant and reversed in a divided opinion. The
court began by stating that it reviews a trial court’s deter-
mination under OEC 403 for abuse of discretion. Davis II,

. The majority then went on to describe
the notes as “uncharged evidence of sexual misconduct,”
which, in a prosecution for sex crimes, it stated, “presents
a ‘due-process-jeopardizing danger of unfair prejudice’ and
has an ‘inflammatory nature’ ” and is therefore “particularly
pernicious.” 

 at 748-49 (quoting State v. Terry, 

, 

 (2021)). For that reason, the majority
concluded that, although the notes were relevant to a fact
of consequence to the state’s case and thus had probative
value,6 their probative value was substantially outweighed
by the danger of unfair prejudice to defendant, because the
extremely graphic nature of the notes “[gave] rise to the risk
that the jury would convict defendant not because defendant
engaged in the charged conduct but, instead, because the
jury believed that defendant serially engaged in threatening
conduct toward female strangers—something for which he
is not on trial in this case.” Id. at 752 (emphasis in origi-
nal). The majority therefore determined that the trial court
had abused its discretion in reaching a contrary result and
declining to exclude the notes.
         Judge Armstrong dissented. He opined that the
notes’ relevance did not depend on character reasoning, and
that Davis I had erred in holding otherwise, reasoning:
    “A jury could infer defendant’s intention to make the victim
    he dragged face down into the ditch scream from pain from
    anal sex not because of a ‘persistent trait’ they inferred
    from the notes but because that’s what the notes said he
    wanted to do to a stranger.”

    6
        The court found that
    “there is a relationship between the proffered evidence (describing a desire
    to engage in violent sexual acts with strangers) and the proposition sought
    to be proved (that if defendant was the person who engaged in violent con-
    duct toward [the victim], he did so intending to subject [the victim] to sexual
    contact).”
Davis II, 

.
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 (Armstrong, S. J., dissenting) (emphasis in
original).
                      II. ANALYSIS
         We begin by explaining how the procedural his-
tory of this case circumscribes the evidentiary question on
review. As noted earlier, the state did not seek review of
Davis I, which held that the notes were inadmissible under
OEC 404(3) because the state’s theory of relevance depended,
at least in part, on character-based reasoning. On remand,
the trial court began from that premise but again admit-
ted the evidence, this time under OEC 404(4) after conduct-
ing OEC 403 balancing. Thus, the ruling now on review is
whether the trial court abused its discretion in (1) allowing
the state to show that defendant had a sexual intent when
he attacked the victim, by (2) admitting evidence—the notes
and testimony about the notes—that, according to the Court
of Appeals in Davis I, depended for its logical relevance, at
least in part, on inferences about defendant’s character.
         In light of that history, the underlying premise
of the trial court’s ruling—that the relevance of the notes
depended, at least in part, on character-based reason-
ing and could not be admitted under OEC 404(3)—is not
squarely before this court and never has been. The parties
have argued the case to us on the assumption that the hold-
ing in Davis I controls the analysis in this case, and that
OEC 404(4) is the only possible vehicle for admission. That
point bears emphasis, because our analysis that follows
works with that premise—that part of the notes was, argu-
ably, character evidence of a type that would be prohibited
under OEC 404(3).
         We also point out that OEC 404(3) precludes the
admission of evidence that depends, for its relevance, on
character-based reasoning, when present in any amount.
Thus, once the Court of Appeals determined in Davis I that
any degree of character-based reasoning was present, its
analysis under OEC 404(3) was complete. That court was
not called upon to further consider the degree of character-
based reasoning that is present. As we will explain, how-
ever, that consideration is central to performing the OEC
630                                              State v. Davis

403 balancing of evidence admitted under OEC 404(4).
However, to properly analyze the probative value and preju-
dicial effect of the evidence in this case, we find it necessary
to first discuss OEC 404(3) and OEC 404(4) in some detail.
A. OEC 404(1), (2), and (3)
          OEC 404 generally makes “character” evidence
inadmissible to prove that a person acted in conformity
with the person’s character. The original version of the rule,
enacted in 1981, contained only three subsections, con-
sisting of what today is found in OEC 404(1), (2), and (3).
Or Laws 1981, ch 892, § 24. Those three subsections have
remained unchanged since their enactment. They provide
only limited instances when evidence of character is admis-
sible. First, OEC 404(1) provides that “[e]vidence of a per-
son’s character or trait of character is admissible when it is
an essential element of a charge, claim or defense.” Second,
OEC 404(2) provides that “[e]vidence of a person’s character
is not admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion,” but
it sets out four exceptions to that general bar:
      “(a) Evidence of a pertinent trait of character offered
   by an accused, or by the prosecution to rebut the same;
       “(b) Evidence of a pertinent trait of character of the
   victim of the crime offered by an accused, or by the pros-
   ecution to rebut the same or evidence of a character trait
   of peacefulness of the victim offered by the prosecution to
   rebut evidence that the victim was the first aggressor;
      “(c) Evidence of the character of a witness, as provided
   in ORS 40.345 to 40.355; or
       “(d) Evidence of the character of a party for violent
   behavior offered in a civil assault and battery case when
   self-defense is pleaded and there is evidence to support
   such defense.”
         OEC 404(3) speaks to evidence of other crimes,
wrongs, or acts. Generally, in the context of a trial, which
is focused on considering specific alleged actions, evidence
of acts disconnected from the allegations at issue frequently
has little, if any, relevance. However, one way an “other act”
can be minimally relevant to satisfy OEC 401 is to show
Cite as 

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that the act is indicative of a character trait, that the per-
son is likely to have acted in conformity with that charac-
ter trait during the events at issue at trial (what is known
as propensity), and that therefore the otherwise irrelevant
other act is relevant to determining if defendant committed
the alleged act.
        Using character in that way—to make otherwise
irrelevant acts relevant in the trial—is prohibited by OEC
404(3):
       “Evidence of other crimes, wrongs or acts is not admissi-
   ble 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(3) expressly states that an “other act” may
be admissible for certain purposes, but not to prove “character”
“in order to show that the person acted in conformity there-
with.” That second sentence of OEC 404(3) does not make some
types of character evidence admissible. Rather, that sentence
explains the limits of the first sentence’s reach. It expresses
the notion that, at times, other acts evidence may be relevant
without invoking a person’s character at all. Relevance of an
other act due to intent, motive, etc., is not an exception to OEC
403(3)’s prohibition on character evidence, it is an example of
reasoning that is not dependent on character. See, e.g., State
v. Johnson, 

, 

 (2006) (“As a general
proposition, evidence of a defendant’s other crimes, wrongs
or bad acts is not admissible in a criminal case to prove the
defendant’s antisocial or criminal propensities. * * * However,
such evidence may be admissible to prove other facts that are
relevant in the case, as long as the chain of logical relevance
connecting the evidence to the ‘other’ fact or facts does not
ultimately rely on an inference relating to the defendant’s
character or propensities.” (Emphasis in original.)).
         Importantly, while OEC 404(3) appears on its face
to regulate only the ultimate purpose for which evidence is
offered, this court’s case law makes clear that the prohibi-
tion on character evidence is more expansive than that. As
we made clear in State v. Jackson, 

, 

                                                              State v. Davis

788 (2021), it is the responsibility of the proponent of other
acts evidence to establish, under OEC 404(3), that character
and propensity reasoning is not being used:
     “If the proponent’s ‘theory of relevance requires the fact-
     finder to employ propensity reasoning’—to rely on an infer-
     ence about the defendant’s bad character and resultant
     propensity to commit criminal acts—at any link in the
     chain of logical relevance, then the evidence is subject to
     the limits on character evidence in OEC 404(3).”
OEC 404(3) prohibits character and propensity reasoning
entirely. If character and propensity reasoning is necessary,
in any amount, to establish relevance and connect the other
act to the issues at trial, OEC 404(3) requires its exclusion.
See, e.g., Julius Stone, The Rule of Exclusion of Similar Fact
Evidence: England, 46 Harv L Rev 954, 975 (1933) (explain-
ing that the other-acts-evidence rule was a “broad rule of
admissibility where there is relevance, except where the
only relevance is via disposition” to commit crimes (empha-
sis in original)).
B.       OEC 404(4) and OEC 403
         In 1997, the legal landscape surrounding the admis-
sibility of other acts evidence in criminal cases changed
when the legislature amended OEC 404 to add subsection (4).
Or Laws 1997, ch 313, § 29. Unlike the other three sections
of OEC 404, OEC 404(4) does not mention the word “char-
acter.” Rather, that rule provides that, in criminal cases,
evidence of “other crimes, wrongs or acts” by the defendant
generally is admissible if it is relevant.7 In State v. Williams,

, 

 (2015), we held that “the legisla-
ture intended OEC 404(4) to supersede 404(3) in criminal
cases, except, of course, as otherwise provided by the state
or federal constitutions.”
     7
         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) [certain other rules of evidence] 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.”
Cite as 

 (2024)                                                      633

         Now, in criminal trials in Oregon, the applicable
subsection of OEC 404 that applies to acts of a defendant
offered in a criminal trial is OEC 404(4), not OEC 404(3).8
OEC 404(4), unlike OEC 404(3), does not require the state
to prove to the court that other acts evidence is offered for a
purpose other than to prove character or that the relevance
of that evidence does not rely on propensity reasoning. OEC
404(4) therefore, on its own, is not the barrier to admission
that OEC 404(3) might have been.9
         There are, however, constraints on the admissi-
bility of other acts evidence under OEC 404(4). The rule
provides that other acts evidence is admissible if it is “rel-
evant” and, if so, only “except as provided by,” among other
things, OEC 403 “to the extent required by the United
States Constitution or the Oregon Constitution,” as well as
other requirements imposed by the state and federal con-
stitutions. OEC 404(4). In Williams, we held that, in using
the word “relevant” in OEC 404(4), the legislature intended
to incorporate the requirements of logical relevance found
in OEC 401. 

. In addition, we held that “OEC
403 balancing” is required before other acts evidence can be
admitted under OEC 404. 

.10 However, we did not
    8
       Although, as with all evidence, other rules may apply, such as OEC 401 and
OEC 403 which apply to nearly all evidence.
    9
       In State v. Baughman, 

, 

 (2017), we said that
OEC 404(4) supersedes the first sentence of OEC 404(3) but it “does not supersede
the second sentence of ORC 404(3)[.]” As we have explained earlier, the second
sentence of OEC 404(3) provides examples of ways that other acts may not rely on
character. OEC 404(4) did not supersede that sentence, because that sentence is
not itself a barrier to admissibility, it explains what is not captured by the first
sentence of OEC 404(3).
    10
        The court in Williams held that, in a prosecution for child sexual abuse,
    “the historical record may not definitively establish that it is always improper
    to admit ‘other acts’ evidence to prove propensity, but it at least demonstrates
    a historical concern for the prejudice that such evidence poses and the impor-
    tance that balancing plays in protecting against the harm that may result
    from its admission. In our view, the only way that a court can ensure that the
    admission of ‘other acts’ evidence is not unfairly prejudicial and a violation of
    ‘fundamental concepts of justice’ is to conduct OEC 403 balancing. We there-
    fore hold that that balancing is required by the Due Process Clause. Even
    if due process does not categorically prohibit the admission of ‘other acts’
    evidence to prove propensity in prosecutions for child sexual abuse, it at least
    requires that, on request, trial courts determine whether the probative value
    of the evidence is outweighed by the risk of unfair prejudice.”

.
634                                             State v. Davis

explain in Williams precisely what was meant by the phrase
“OEC 403 balancing.”
         Later, in State v. Baughman, 

, 

 (2017), we explored whether the “OEC 403 balanc-
ing” required before evidence may be admitted under OEC
404(4) is “traditional” or “subconstitutional” balancing—i.e.,
balancing the probative value against the prejudicial effect
of the evidence—or, as the state had argued, due process
balancing, which would preclude the admission of other acts
evidence only if its admission would render the trial funda-
mentally unfair as a matter of law. Ultimately, we concluded
that, when the legislature enacted OEC 404(4), it “intended
trial courts to conduct the balancing required by OEC 403
according to its terms,” by which the court meant that a
trial court must exclude even relevant evidence under OEC
404(4) when, in the exercise of its discretion, it determines
that the probative value of the evidence is substantially out-
weighed by the danger of unfair prejudice. 

.
         Under OEC 403, relevant evidence may be excluded
if, among other things, “its probative value is substantially
outweighed by the danger of unfair prejudice.” “Probative
value” is “essentially a measure of the persuasiveness that
attaches to a piece of evidence.” State v. Lawson, 

, 

 (2012). Evidence is unfairly prejudicial if
it “improperly appeals to the preferences of the trier of fact
for reasons that are unrelated to the power of the evidence
to establish a material fact.” State v. Shaw, 

, 

 (2005) (internal quotation marks omitted).
In the context of OEC 403, “unfair prejudice” means “an
undue tendency to suggest decisions on an improper basis,
commonly although not always an emotional one.” State v.
Naudain, 

, 

 (2021) (internal cita-
tion omitted). Evidence is not unfairly prejudicial simply
because it is harmful to the defense. Id.; Shaw, 

 (same); State v. Lyons, 

, 

(1996) (same). The key question is not whether the evidence
is prejudicial, but whether it is unfairly prejudicial. State v.
Moore, 

, 

 (1996).
         Thus, to be admissible under OEC 404(4), evidence
of other acts by the defendant must be relevant under OEC
Cite as 

 (2024)                                     635

401, and it must withstand OEC 403 balancing to determine
whether its probative value is substantially outweighed by
its prejudicial effect. In Baughman, we suggested to courts a
methodological approach for how to undertake the OEC 403
balancing required of evidence admitted under OEC 404(4).
There, we suggested that, even though OEC 404(3) no longer
applied to other acts of a defendant offered in a criminal
trial, it was conceptually helpful to first consider “whether
the proffered evidence” would have been admissible for “one
or more nonpropensity purposes” under the previously appli-
cable OEC 404(3) scheme. Baughman, 

.
         Even though OEC 404(3) is no longer technically
controlling of other acts of a defendant in a criminal trial,
considering how the proffered evidence would have fared
under that rule “will have a significant effect on whether
the trial court admits that evidence” under the balancing
required by OEC 403. As we explained:
   “At one end of the spectrum, other acts evidence that is rel-
   evant for a nonpropensity purpose under OEC 404(3) gen-
   erally will be admissible under OEC 403 as long as the par-
   ticular facts of the case do not demonstrate a risk of unfair
   prejudice that substantially outweighs the probative value
   of the evidence. Williams, 

. At the other end
   of the spectrum, when evidence is relevant only to prove
   a defendant’s character, more significant due process con-
   cerns are implicated, and, generally, the danger of unfair
   prejudice will substantially outweigh the probative value of
   the evidence. 

.”
Baughman, 

.
          Accordingly, even though “character” is not mentioned
in OEC 404(4) and, for that reason, the rule does not expressly
prohibit evidence of a person’s character (as does OEC 404(2)),
or prohibit character and propensity reasoning to establish
relevance, as does OEC 404(3), a court is still advised to deter-
mine whether other acts evidence that is being offered under
OEC 404(4) is either explicitly, or by inference, evidence of
character and whether propensity reasoning is at play. That
is so, because evidence that goes to establish a person’s char-
acter and that is offered solely to prove that a person acted in
conformity with their character “generally will have little or
636                                                  State v. Davis

no cognizable probative value, and the risk that the jury may
conclude improperly that the defendant had acted in accor-
dance with past acts on the occasion of the charged crime will
be substantial.” Williams, 

.
        As discussed, under OEC 404(3), using character
and propensity reasoning to establish relevance, in any
amount, renders the other act inadmissible. OEC 404(4)
removed that barrier for other acts of a defendant offered in
a criminal trial, to some degree. In Williams and Baughman
we described admissibility of evidence under OEC 404(4) as
a spectrum depending on whether character reasoning is
present and how it is used:
   “At one end of the spectrum, ‘other acts’ evidence that is
   offered for [noncharacter] 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 out-
   weighs the probative value of the evidence. Shaw, 

. At the other end of the spectrum, as the state rec-
   ognizes, when ‘other acts’ evidence ‘goes only to character
   and there are no permissible inferences the jury may draw
   from it,’ it is more likely that the evidence will be excluded.”
Williams, 

 (emphasis in original). Williams
described the two ends of the spectrum but did not expressly
discuss what types of evidence fall between those poles.
Given how this court described the ends of the spectrum,
however, it follows that the middle of that spectrum consists
of evidence where character reasoning may be implicit to
some degree, or where, despite a noncharacter purpose being
offered by the proponent of the evidence, a jury or factfinder
could perceive the evidence as relying on character and
action in conformity with character as its source of relevance
to the trial. This potential for admission, subject to OEC 403
balancing, of character and character-based propensity rea-
soning, to some degree, is the essence of the change wrought
by OEC 404(4). Williams described as classically “impermis-
sible” evidence that “goes only to character,” where “there
are no permissible inferences the jury may draw from it.”

 (emphasis in original). That exists at one end of
the spectrum and, as Williams said, is likely to be excluded.
Thus, evidence that supports other, permissible inferences
Cite as 

 (2024)                                                     637

does not “go[ ] only to character” and may potentially be
admissible, even though character reasoning may be pres-
ent, in some degree.
C. Evaluating the notes evidence under OEC 403.
          As explained earlier in this opinion, the posture of
this case leads us to work within the holding by the Court of
Appeals in Davis I that the relevance of the notes depends
at least to some degree on character-based reasoning,
although we offer no opinion on whether that was correct.
However, even assuming that premise, to properly assess
the probative value and prejudicial effect of the notes evi-
dence, we are called upon to decide the relative value of that
degree—that is, to what degree is character, or propensity
reasoning, present here? Does the relevance of the notes evi-
dence derive primarily or substantially from character, or
does the relevance of the notes derive primarily or substan-
tially from a noncharacter source? To tease out the relative
degree to which character may be present, we find it use-
ful to consider two aspects of the notes’ evidentiary value.11
First, we consider the notes’ contents. Do the contents of the
notes—defendant’s statements—depend on character, or
propensity, to be relevant in this context? Or rather, is their
relevance due to reasoning that does not invoke character?
         At oral argument in this case, defense counsel
asserted that the content of the notes was evidence of the
character of defendant: namely, that defendant possessed
the “character of someone who would say such a thing.”
Under defendant’s conceptualization of character, every act
is an act of character—the character of a person who would
engage in that act. That improperly injects character where
it does not exist.
    11
       For purposes of assessing the OEC 403 probative value and prejudicial
effect of other acts evidence admitted under OEC 404(4), when the factfinder
could perceive both character and propensity reasoning as well as another non-
character-based line of reasoning, it can be analytically helpful to divide the evi-
dence into conceptual parts, where possible. Just as hearsay within hearsay may
require careful parsing of components of evidence, assessing other acts evidence
may require parsing of the “act” into its constituent parts to assess which aspects
go to establish character, as opposed to noncharacter. Not only does such division
aid in analysis, it facilitates discussion amongst the court and the parties about
potential redactions or limiting instructions to minimize problems associated
with the proffered evidence.
638                                            State v. Davis

         Generally, when a person’s statements of their
desires or intentions are offered at trial, the relevance of
that evidence is not because it establishes that declarant
has a particular character. Rather, the relevance of such
statements is that they are direct evidence of defendant’s
thoughts, desires, and intentions. Litigants cannot trans-
form every other act into character evidence simply by say-
ing that it shows that the defendant had the “character of
someone who would perform the act.” Here, the relevance of
the content of the notes was not because defendant possessed
the “character” of a person who would say that they desire to
violently sexually assault a stranger; the contents were rele-
vant because they were evidence that defendant had, in fact,
expressed his desire to violently sexually assault a stranger.
As Judge Armstrong noted in his dissent in Davis II,
the contents of the notes were defendant’s expressions of
what “he wanted to do to a stranger.” 

(Armstrong, S.J., dissenting) (emphasis in original).
         If defendant had told the person next to him at a
bar that he wanted to sexually assault a woman later that
evening, those statements, if offered in a trial for sexual
assault allegedly perpetrated later that night, would gener-
ally not be conceived of as other acts evidence of defendant’s
character, or reliant on character-based propensity reason-
ing. Character is not needed to establish the relevance of
the other act. Instead, they would be direct evidence of what
he wanted to do. And, if evidence of those expressions were
offered at trial to prove defendant’s mental state, it would
be evaluated for relevance under OEC 401 and its probative
value would be weighed against its prejudicial effect under
OEC 403, but it would not be evaluated under OEC 404 as
other acts evidence using character as a means to imbue
the statement with relevance. See, e.g., State v. Turnidge
(S059155), 

, 

 (2016) (evalu-
ating the defendant’s statements about his views about law
enforcement and other related beliefs for relevance under
OEC 401, and not as other acts evidence under OEC 404).
         In characterizing the contents of the notes through-
out the briefing in this case, the parties have used the term
“propensity evidence” liberally, at times using the phrase
Cite as 

 (2024)                               639

“propensity evidence offered to prove propensity.” Such lan-
guage may be distracting. In this case, the content of the
notes was offered to show that when defendant assaulted
the victim in this case he desired to sexually assault her, a
stranger, because he had made admissions that he desired
to sexually assault multiple strangers in the weeks preced-
ing the attack. That is certainly evocative of probabilistic
reasoning, but the wellspring of that reasoning is defen-
dant’s own admissions, not his character, and its disconnec-
tion from character means it is not propensity reasoning, as
defendant argues.
          In sum, in this trial for attempted sexual assault,
where the central issue is whether that physical assault was
intended to lead to a sexual assault, defendant’s statements
contained in the notes are relevant not because of charac-
ter, but because they establish defendant’s continuous intent
repeatedly expressed close in time to the act. The primary
inference created by the contents of the notes is the non-
character-based inference that defendant—having repeat-
edly, and within a short period, intentionally and deliber-
ately expressed, without ambiguity, his intent to violently
sexually assault strangers—possessed the same continuous
intent when he assaulted the victim in this case mere weeks
later.
         However, as we stated earlier, the Court of Appeals
held in Davis I that some degree of relevance of the notes
was dependent on character. Again, working with Davis I,
we do not foreclose that a jury could also, and at the same
time, see the notes as evidence of defendant’s character, in
addition to his intent. That possibility can be due to their
contents, but also, in part, to evidence of the placement of
the notes. Defendant admitted that he authored the notes,
but denied they were left for strangers, claiming they
were instead written to his girlfriend. The state needed to
present evidence not just of the notes’ contents, but their
placement on the windshields of vehicles, parked in public
places, belonging to women whom defendant did not know.
Accordingly, in offering testimony about the placement, the
state was implicitly asking a factfinder to infer that defen-
dant had observed strange women, knew their vehicles, and
640                                             State v. Davis

targeted them based on their appearance. Seen through
that lens, we do not foreclose that the jury could perceive
the notes as both relevant to defendant’s intent, as well as
indicative of his character and actions in conformity with
character: that defendant stalked strangers in the past, has
the character of a stalker of strangers, and now, in this case,
acted in conformity with that character by stalking the vic-
tim here, who was a stranger to him.
         As we have tried to illuminate, the relevance of the
content of the notes, in this context, is derived primarily
from their expressions of intent, and does not depend on
character. However, the contents and placement of the notes,
viewed in toto, could be seen as potentially invoking charac-
ter as the link to establish relevance—that defendant was a
stalker, and thus invite the factfinder to view the contents
as indicative of character, in addition to intent. Therefore,
the notes invoke multiple potential chains of reasoning.
Accordingly, the notes were not, by definition, at the far end
of the spectrum identified in Williams: other acts evidence
that “goes only to character.” 

 (emphasis added).
         However, even working with the Davis I holding
that some character inference is embedded in the logic that
makes the notes relevant to show defendant’s sexual intent,
the relevance of the notes is not dependent, primarily or
substantially, on character. The relevance of the notes pri-
marily or substantially is derived from their contents, which
derive their relevance from being expressions of continuous
intent, not character. As direct expressions of defendant’s
intent, those statements are highly probative. They describe,
in defendant’s own words, his desire to engage in violent
sexual acts with strangers and the proposition sought to be
proved by the state was that defendant intended to subject
the victim, a stranger, to sexual contact. We emphasize that
what makes the statements here particularly probative is
that the statements are repeated—not a single utterance.
Further, that repetition occurred over a period of weeks, not
months, or years. The statements were written, not over-
heard and therefore more easily misunderstood due to vocal
tone, body language, etc. The statements were unambigu-
ous. And the statements were very intentionally made, not
Cite as 

 (2024)                                                     641

said in reaction to another statement, or in the dynamics of
a larger conversation.12
          The notes evidence was, without question, highly
prejudicial. But it is often the case that evidence that is most
probative is also the most prejudicial, and that does not ren-
der the prejudice unfair. Certainly, the prejudicial effect of
character evidence is great, but as discussed, even if the
notes are arguably reliant on some degree of character, that
degree is marginal, and character is certainly not the pri-
mary or substantial source of their relevance. In addition,
the trial court took numerous actions to mitigate any unfair
prejudice, including redacting some of the most incendiary
wording from the notes to limit their inflammatory effect,
limiting the state’s use of the notes evidence, and giving the
jury a limiting instruction.
          Under OEC 403, relevant evidence may be excluded
only “if its probative value is substantially outweighed by the
danger of unfair prejudice.” The rule favors admissibility,
but ultimately is discretionary. As we noted in State v. Titus,
    “[a] decision to exclude evidence under OEC 403 is reserved
    to the trial court’s discretion. * * * That is so because appli-
    cation of OEC 403 may allow for more than one legally cor-
    rect outcome. * * * For example, in some cases, the record
    may support either the admission or exclusion of otherwise
    admissible evidence under OEC 403, and neither result
    legally would be incorrect.”

, 

 (1999).
         The question before us is not whether the trial court
was required to admit, or exclude, the notes evidence under
OEC 403. Rather, the question is whether, on this record,
admission of the evidence was one—among multiple—legally
permissible outcomes. See, e.g., State v. Rogers, 

, 

 (2000) (“ ‘Discretion’ refers to the author-
ity of a trial court to choose among several legally correct

     12
        Before us, the state additionally argues that the prosecution’s need for the
evidence is a factor for consideration when evaluating the probative value of the
evidence. Here, because the reasons we articulate are sufficient to support our
holding that the trial court was within its discretion to rule that the probative
value of the notes was not substantially outweighed by the risk of unfair preju-
dice, we need not, and do not, determine to what extent, if any, a party’s “need”
for evidence is properly considered in evaluating probative value.
642                                             State v. Davis

outcomes.”). For the reasons just discussed, we hold that
because the primary or substantial value of the notes was not
derived from character, or character-based propensity rea-
soning, declining to exclude the evidence under OEC 403 was
within the permissible range of the trial court’s discretion.
          Finally, we briefly address defendant’s alterna-
tive argument that, if the trial court was within its discre-
tion to admit the evidence under OEC 403, principles of due
process prohibited the use evidence “offered only to prove
propensity.” Although defendant developed that argument
before the Court of Appeals, and before this court, we do
not read the trial court record as fairly presenting that con-
stitutional argument to the trial court. Before the Court of
Appeals defendant acknowledged his due process argument
was unpreserved, stating, “Defendant acknowledges that, on
remand, he did not place any specific emphasis on * * * a due
process requirement of exclusion of propensity-only evidence
* * *.” As we see this record, the only passing reference to the
trial court hinting at the constitutional argument now being
made was that “the admission of the notes renders the trial
fundamentally unfair because the notes so clearly become the
focus of attention to the distraction of the factfinder from the
elements of the charged offenses.” As we recently noted, “In
some cases, a ‘short-hand reference’ may be sufficient to pre-
serve an issue, when ‘such short-hand references [are] used
in a way and context that the other parties and the court
would understand from that single reference the essential
contours of the full argument.’ ” State v. Skotland, 

, 

 (2024) (quoting State v. K. J. B., 

, 

 (2018) (brackets in Skotland)). Defendant’s
statements to the trial court here were insufficient, even as
shorthand, to afford the trial court a “meaningful opportu-
nity to engage an argument on its merits and avoid error at
the outset.” 

         In light of the lack of preservation of defendant’s
constitutional argument, our decision here today is purely
statutory—explaining how OEC 404(4) and OEC 404(3)
operate, in conjunction, to authorize a permissible range of
discretion to admit other acts evidence of a defendant, in a
criminal trial, when character is present in some degree that
Cite as 

 (2024)                                                643

is less than the primary or substantial source of relevance.
We save for another day whether any provision of the state
or federal constitutions limits that statutory discretion.
        The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.
            DUNCAN, J., concurring.
          I agree with the majority’s conclusion that the trial
court did not err in admitting evidence of the notes. I write
separately because I believe that the majority’s analysis is
based on a false premise and, as a result, is unnecessarily
complicated and could cause confusion. In this concurrence,
I offer an alternative analysis with the hope that it will clar-
ify the issues in this case, as well as in future cases.
         The majority’s false premise is that the evidence of
the notes was inadmissible under OEC 404(3). The majority
assumes that premise because of the particular history of
this case. As the majority recounts, when this case was tried,
the state offered the evidence on the theory that the notes
supported an inference that defendant intended to sexually
assault women that he did not know. The prosecutor argued
that the notes were relevant to show what defendant had
said about his own intent. Over defendant’s objection, the
trial court admitted the evidence based on that theory of
relevance. Accordingly, the case was tried, and the jury was
instructed, based on that theory.
         On appeal, defendant argued that the trial court
had erred because the evidence of the notes was inadmis-
sible under OEC 404(3). That rule prohibits the admission
of other-acts evidence “to prove the character of a person in
order to show that the person acted in conformity therewith.”
But it does not prohibit the admission of other-acts evidence
for other purposes, including to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.”1 As this court explained in State v.
   1
       In full, 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
644                                                             State v. Davis

Skillicorn, 

, 

 (2021), when deter-
mining whether evidence is barred by OEC 404(3), parties
and courts cannot simply look at whether the ultimate infer-
ence that the proponent wants the factfinder to draw from
the evidence relates to one of those listed purposes. Instead,
the proponent of the evidence must identify its theory of rel-
evance and the parties must analyze the inferences that the
factfinder would have to draw from the evidence to make the
finding that the proponent wants it to make. 

         To use a simple example, if the state wanted to use
evidence of a defendant’s prior theft to prove a charged theft,
the state could not simply state that the prior thefts were
relevant to show the defendant’s intent or motive at the time
of the charged theft. Instead, it would have to identify its
theory of relevance. If that theory would require the fact-
finder to draw an inference about the defendant’s charac-
ter, then the evidence would be barred by OEC 404(3). For
example, if the state’s theory of relevance was “once a thief,
always a thief,” the evidence would be barred.2

    of motive, opportunity, intent, preparation, plan, knowledge, identity, or
    absence of mistake or accident.”
    2
      When referring to evidence that would be “barred” by OEC 404(3), I am
referring to evidence described in the first sentence of that provision: evidence
offered “to prove the character of a person in order to show that the person acted
in conformity therewith.” OEC 404(3). But OEC 404(3)’s bar on the admission
of such evidence has been superseded by OEC 404(4), which applies in criminal
cases and allows for the admission of a defendant’s other acts. See State v. Zavala,

, 

 (2017) (explaining “that OEC 404(4) supersedes
only the first sentence of OEC 404(3) and that a trial court may admit nonpro-
pensity evidence under the second sentence of that rule”). Nevertheless, whether
evidence would be barred by OEC 404(3) is relevant to whether the evidence is
admissible under OEC 404(4). As we explained in State v Baughman, 

, 

 (2017):
    “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 constitutions. Consequently, OEC 404(4) supersedes the first sen-
    tence 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 pro-
    vides 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 admis-
    sible’ under the second sentence of OEC 404(3).”
Cite as 

 (2024)                                  645

         In the first appeal in this case, the Court of Appeals
held that the theory of relevance that the state explained
to the trial court before the trial was barred by OEC 404(3)
because it required the factfinder to make an inference about
defendant’s character. State v. Davis, 

,

 (2018) (Davis I). As I will explain, I disagree
with that holding, and I believe that it has put this case
on the wrong analytical path. It has caused the majority to
ask whether the trial court erred by admitting “character
evidence” and then answer that question by concluding that
the evidence was not really “character evidence.”
         First, was the evidence of the notes “character evi-
dence” or “propensity evidence”? By those terms, I mean
evidence that would be barred by OEC 404(3) because it is
other-acts evidence that is offered to prove a person’s char-
acter in order to show that the person acted in conformity
therewith. I do not think it was “character evidence” because
I do not think that a factfinder would have to draw an infer-
ence about the defendant’s character in order to find the
fact that the state wanted it to find, which was that, at the
time of the charged crime, defendant had the intent to sex-
ually assault women that he did not know. As I understand
it, the state wanted to use the notes to show that, in the
weeks leading up to the charged crime, defendant had per-
sonally, intentionally, and clearly expressed in writing his
intent to sexually assault two women he did not know. From
those actions, the state wanted the factfinder to infer that
(1) defendant’s intent was not specific to those two women,
who were complete strangers to him, but applied to other
women, and (2) given the nature of that intent, as evidenced
by its intensity, specificity, and duration, it likely persisted
at the time of the charged crime. Thus, as I see it, the infer-
ences that the state wanted the factfinder to draw related to
the nature of defendant’s expressed intent. I do not believe
that the line of reasoning that the state wanted the fact-
finder to follow required the factfinder to make inferences
about defendant’s character.
        To analogize, if, on January 1, a person told a friend
that he wanted to rob Bank A and then, on January 2, the
person told the friend that he wanted to rob Bank B, OEC
646                                               State v. Davis

404(3) would not preclude the admission of those statements
in a trial prosecuting the person for robbing Bank C on
January 3, if the state’s theory of relevance was that the
defendant had expressed an intent to engage in specific con-
duct and it was likely that that intent persisted at the time
of the charged crime. (Of course, as with all other-acts evi-
dence, there would be a risk that the evidence could be used
for another, impermissible purpose, for example, to show
that the defendant was a bad or dangerous person. That risk
does not mean that the evidence is barred by OEC 404(3),
but it is something that a court must consider when assess-
ing whether the evidence should be excluded under OEC 403
and whether limiting instructions should be given.)
          I believe that, when determining whether other-
acts evidence is admissible, it is important to determine
whether the evidence was admitted under OEC 404(3) or
whether it was admitted only under OEC 404(4). In State v.
Baughman, 

, 

 (2017), this
court explained how those provisions relate to each other
and prescribed a framework for analyzing the admissibil-
ity of other-acts evidence that takes both of those provisions
into account. We stated:
   “When a party objects to the admission of other acts evi-
   dence, a trial court first should determine whether the
   proffered evidence is relevant for one or more nonpropen-
   sity 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 dan-
   ger of unfair prejudice under OEC 403. If the trial court
   determines that the evidence is relevant for a nonpropen-
   sity 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 proffered evidence is not rel-
   evant 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.”
      “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
Cite as 

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   admits that evidence at step two. At one end of the spec-
   trum, other acts evidence that is relevant for a nonpropen-
   sity 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 sub-
   stantially outweighs the probative value of the evidence.
   [State v. Williams, 

, 

 (2015)]. At the
   other end of the spectrum, when evidence is relevant only
   to prove a defendant’s character, more significant due pro-
   cess concerns are implicated, and, generally, the danger of
   unfair prejudice will substantially outweigh the probative
   value of the evidence. 

.”
Baughman, 

 (footnote omitted); see also
State v. Sperou, 

, 

 (2019) (stat-
ing that Baughman “clarified the methodology for ruling on
‘other acts’ evidence with respect to evidence that could be
admissible under either OEC 404(3) or (4)”); State v. Tena,

, 

 (2018) (under Baughman, “the
admissibility of evidence of other acts is determined by
means of a two-part test”).
         Thus, if evidence is admitted solely for a purpose
that is permissible under OEC 404(3)—and, therefore is not
character evidence—there is no need to analyze its admis-
sibility under OEC 404(4), which was enacted to allow for
the admission of evidence that was not already admissible
under OEC 404(3).
          Applying the analytical approach that this court
prescribed in Baughman, I would hold that the state’s theory
of relevance, articulated before the evidence was admitted
in trial, was a noncharacter theory of relevance and, there-
fore, the evidence of the notes was not barred by OEC 404(3).
I would then review the trial court’s discretionary decision
not to exclude the evidence under OEC 403, which allows a
court to exclude evidence if its probative value is substan-
tially outweighed by the danger of unfair prejudice. On the
“probative value” side of the balance, I would consider the
trial court’s assessment of how probative the evidence was of
the fact that it was offered to prove: whether defendant had
an intent to sexually assault the victim. On the “unfair prej-
udice” side of the balance, I would consider the trial court’s
assessment of the risks of admitting the evidence, including,
648                                             State v. Davis

but not limited to, the possibility that the evidence might be
misused as character evidence. And I would conclude that
the trial court did not abuse its discretion in admitting the
evidence of the notes, given the state’s noncharacter theory,
as well as the trial court’s partial redaction of the notes and
its limiting instructions.
         The majority takes a different path. That is under-
standable given the history of this case. As mentioned,
when this case was on appeal the first time, the Court of
Appeals held that the evidence of the notes was barred by
OEC 404(3) because it was character evidence. Davis I, 

. The Court of Appeals remanded the case to
the trial court to consider the state’s argument, raised for
the first time on appeal, that the evidence was admissible
under OEC 404(4). 

 The state did not seek review of the
Court of Appeals’ decision.
        On remand, there was not a new trial. Instead, the
parties litigated the hypothetical question of whether the
evidence could have been admitted as character evidence
under OEC 404(4). The trial court held that it could have.
Defendant appealed for the second time, and the Court of
Appeals reversed. State v. Davis, 

, 

 (2022) (Davis II).
         So, now, on review, the majority treats the question
as whether the trial court erred in concluding that the evi-
dence was admissible under OEC 404(4). Before admitting
evidence under OEC 404(4), a trial court must conduct OEC
403 balancing. That is, it must balance the probative value
of the evidence against the danger of unfair prejudice. As an
appellate court, we review that balancing.
         The majority concludes that the trial court did not
err in admitting the evidence of the notes because the trial
court did not abuse its discretion in balancing the probative
value of the evidence against the danger of unfair prejudice.
In reviewing the trial court’s balancing, the majority pro-
ceeds as if we must assume that the evidence was admitted
under OEC 404(4) because of what occurred on remand. I do
not think that we have to. If parties and a trial court agreed
that a statement was hearsay but disagreed about whether
Cite as 

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a hearsay exception applied, I do not think that we would
have to proceed as if the statement was hearsay if it was
not. We do not have an obligation to perpetuate a misunder-
standing of the law. We would not want to issue an opinion
holding that a statement was admissible under a hearsay
exception because it was not actually hearsay.
         But if we had to treat the evidence of the notes as
character evidence, then I think we would have to analyze
the trial court’s balancing differently than the majority does.
We would have to assess its probative value as character
evidence, not as noncharacter evidence. Correspondingly,
we would have to assess the danger of unfair prejudice that
would result from using the evidence as character evidence.
Character evidence has long been prohibited for good rea-
sons. See Skillicorn, 

 (describing history of,
and reasons for, the prohibition). We would have to assess
whether, in light of the reasons underlying the centuries-old
prohibition, the trial court abused its discretion in its OEC
403 balancing.3
         As we said in Baughman, “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.” 361 Or at 405. In other words, evi-
dence admitted “solely to prove a defendant’s character” is
generally not admissible under OEC 403. Id. at 407.
         In Baughman, this court stated that there is a
“spectrum” of other-acts evidence. Id. at 405. The majority
reads the court’s statement to mean that we should con-
sider to what “degree” the relevance of evidence depends on

     3
       In this case, the issue on review is whether the trial court erred in its OEC
403 balancing, a required component of the analysis that must be done to deter-
mine whether evidence is admissible under OEC 404(4). But, of course, that bal-
ancing is not the only component of the analysis. Under OEC 404(4), evidence of
a defendant’s other acts is admissible in a criminal case only if (1) it is relevant,
(2) not barred under certain rules of evidence, (3) not barred by the state constitu-
tion, (4) not barred by the federal constitution, and (5) admissible under OEC 403.
Thus, in a case where evidence is proffered under OEC 404(4), a trial court should
determine whether, among other things, evidence is barred by the state or federal
constitutions. If it is, it is not admissible under OEC 404(4). If it is not, then the
trial court can proceed to determine whether the evidence should nevertheless be
excluded based on OEC 403 balancing.
650                                             State v. Davis

character reasoning. But, as I understand it, when assess-
ing the admissibility of other-acts evidence, we need to focus
on the proponent’s theory of relevance and determine if the
theory requires character reasoning. A proponent may have
several theories of relevance, some of which may involve
character reasoning and some of which may not. The type
and number of theories of relevance can affect where evi-
dence falls on the Baughman spectrum.
         If a proponent has only one theory of relevance and
it involves character reasoning, then the evidence is likely
to be on the “inadmissible” end of the spectrum; it will likely
have to be excluded under OEC 403 because of due process
concerns. But, because the extent of due process protections
can depend on “historical practice,” Williams, 

,
there may be some types of evidence that involve character
reasoning that are not all the way at the “inadmissible” end
of the spectrum because the exclusion of such evidence is not
so deeply rooted as to be “fundamental” for due process pur-
poses, as this court suggested in Williams regarding other-
acts evidence in child sexual abuse cases, 

.
        If a proponent has multiple theories of relevance,
some of which involve character reasoning and some of
which do not, the evidence might fall between the ends of
the spectrum. In such a situation, a trial court might bar the
character-based theories but allow the noncharacter-based
theories.
        Continuing across the spectrum to the other end, if
a proponent’s theory or theories of relevance do not involve
character-based reasoning, then the proponent’s evidence is
more likely to be admissible.
         In my view, the theory of relevance that the state
proffered in support of admission of the evidence of the notes
when that issue was litigated before trial was a nonchar-
acter theory, putting the evidence on the more-likely-to-be-
admitted end of the spectrum. I agree with the trial court’s
ruling that the evidence was not barred by OEC 404(3) and
could be admitted under OEC 403. I do not think that this
court is required to proceed as if the evidence was barred
by OEC 404(3), but if we were to bind ourselves to the trial
Cite as 

 (2024)                                 651

court’s ruling on remand, then we would treat the theory of
relevance as a character theory, and the evidence would be
on the more-likely-to-be-excluded end of the spectrum.
         Because I agree with the majority’s conclusion that
the evidence of the notes was admissible, but disagree with
its analysis, I respectfully concur.
        GARRETT, J., concurring.
         Although I agree with the majority’s conclusion that
the trial court acted permissibly in admitting the evidence
that defendant left two notes on women’s cars, I reach that
conclusion for different reasons. In my view, the majority
opinion unnecessarily complicates the issues, introducing
new concepts that will be difficult to apply in future cases.
         This case presented an important opportunity to
address how courts should evaluate the admission of char-
acter evidence under OEC 404(4) and OEC 403, in light of
the due process constraints that this court recognized in
State v. Williams, 

, 

 (2015). The Court
of Appeals majority approached that question by relying on
a nonexclusive set of factors set out by the Ninth Circuit
in United States v. LeMay, 

 (9th Cir
2001), cert den, 

 (2002)—which this court cited
with approval in Williams—for use in determining whether
character evidence may be admitted to prove a defendant’s
sexual purpose in a criminal case. The panel majority held
that, although the notes had probative value to show defen-
dant’s sexual purpose when he attacked the victim, that pro-
bative value was substantially outweighed by the risk that
the factfinder would unfairly rely on the evidence to punish
defendant for being a “serial” assaulter of women, a charge
for which he was not on trial. State v. Davis, 

, 

 (2022) (Davis II).
         The panel majority reached that conclusion “partic-
ularly in view of [this court’s] cautionary words in [State v.
Baughman, 

, 403 n 8, 

 (2017)]—viz.,
‘that the federal constitution may, as a matter of law, pro-
hibit the admission of other acts evidence to prove propen-
sity in a criminal case in which the defendant is charged
with crimes other than child sexual abuse.’ ” Davis II, 319
652                                                               State v. Davis

Or App at 752. Thus, the panel majority’s review of the trial
court’s OEC 403 balancing was intertwined with due pro-
cess considerations, and plainly was driven by this court’s
anticipatory statements in Williams and Baughman about
how the Due Process Clause might apply outside the child
sexual abuse context.
          Applying the same case law and principles, the
dissenting judge concluded that the trial court had acted
“well within” the permissible range of OEC 403 discretion in
admitting the evidence of the notes. Id. at 758 (Armstrong,
S. J., dissenting). In the dissent’s view, the “sexual-purpose
theory in this case is not meaningfully distinguishable from
the one that Williams recognized as having probative value.”
Id. The dissent concluded that the Williams analysis was
applicable outside the narrow context of child sexual abuse,
reasoning that, to the extent that Williams had suggested
otherwise, that suggestion was not controlling and was ana-
lytically dubious. Id. at 760 & n 2.
         In short, the divided opinions in the Court of
Appeals squarely present the issue left open in Williams
(and flagged again in Baughman), which is how OEC 404(4),
OEC 403, and due process principles apply to the admission
of character evidence in criminal cases other than child sex-
ual abuse prosecutions. That, I thought, is why this court
allowed review.1
         I would reverse for the reasons discussed by Judge
Armstrong in his dissenting opinion below. To paraphrase
those reasons, the trial court did not abuse its OEC 403
discretion because, although the evidence of the notes does
present some risk of unfair prejudice, that risk does not
“substantially outweigh” the notes’ probative value. That

   1
       The state’s petition for review presented two questions:
          (1) “When the state offers evidence under OEC 404(4) that
          the defendant previously engaged in uncharged sexual mis-
          conduct to prove that the defendant intended to commit the
          charged sex crime, how should the trial court conduct its OEC
          403 balancing to decide whether to admit the evidence?”
          (2) “Does the Due Process Clause prohibit the admission of
          other-acts evidence to prove the defendant’s propensity in a
          criminal case where the defendant is charged with crimes
          other than child sexual abuse?”
Cite as 

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probative value is high because it is the only available evi-
dence tending to show that defendant had a sexual purpose
when he attacked the victim. And the use of that evidence
to show that defendant had a sexual purpose on a particular
occasion is permissible because it is distinct from using it
only to show a likelihood that defendant acted in conformity
with his bad character. See Williams, 

 (recogniz-
ing “a slim but distinct difference” between those theories of
relevance).
         In reaching the contrary conclusion, the Court of
Appeals majority obviously was influenced by this court’s
statement in Baughman (repeating a statement in Williams)
that, in any criminal case other than a child sexual abuse
prosecution, this court might conclude that the Due Process
Clause completely prohibits the admission of character evi-
dence. That comment in Williams, however, was dictum,
offered without supporting authority. And, as the Court
of Appeals dissent correctly observed, the authorities that
Williams did cite do not differentiate between child sexual
abuse and other sex offenses.2 No principled reason has been
offered for why the approach this court took in Williams
should not apply equally here.
         Today, rather than answer the question on which
the Court of Appeals panel split—whether the notes were
admissible as character evidence to establish defendant’s
sexual purpose—the majority changes the premise, mini-
mizing the “degree” to which the evidence depends on char-
acter reasoning. The majority goes about that by dividing
the notes into two component parts: (1) their contents and
(2) the fact of their placement on women’s cars. __ Or at __
(slip op at 24:20-26:9). The majority then concludes that the
notes’ relevance comes “primarily” from their contents, and
the contents of the notes do not depend on character rea-
soning because they simply reflect defendant’s “continuous
intent.” 

    2
      See LeMay, 

 (explaining that “courts have routinely allowed
propensity evidence in sex-offense cases,” including “prosecutions for offenses
such as rape, incest, adultery, and child molestation” (emphasis added)); United
States v. Castillo, 

 (10th Cir 1998) (broadly considering “the his-
torical record regarding evidence of one’s sexual character” in “cases involving
sex offenses”).
654                                                             State v. Davis

         I have difficulty following what the majority means
in its assessment of the “degree” of character reasoning
that is present. A character inference either is logically nec-
essary to the chain of reasoning that makes the evidence
relevant, or it is not. If a character inference is part of the
logical chain, then our analysis under OEC 404(4) and OEC
403 should shift, as explained in Williams, to evaluate
(1) whether the evidence is relevant for a legitimate pur-
pose (i.e., other than to show defendant’s bad character),
and (2) the risk that the jury will nonetheless misuse the
evidence to decide guilt based on its assessment of defen-
dant’s character. See 

 (explaining that, when
“other acts” evidence is offered under OEC 404(4), a trial
court must engage in OEC 403 balancing, which involves
evaluating other “nonpropensity purposes” for the evidence
as well as the risk of juror misuse). The majority’s approach
adds an intervening, apparently quantitative assessment of
the “degree” of character reasoning. If, by that, the majority
means to ask to what extent the logical chain depends on a
character inference, I am not sure that question makes any
more sense than asking how much a physical chain depends
on a single link.
         The majority’s answer to the question is, like the
question itself, problematic. To weigh how much character
reasoning is present, the majority disaggregates the evi-
dence of the notes into (1) the fact of what defendant wrote
and (2) the fact that the notes were placed on women’s cars.

. But no one, throughout this case, has ever
suggested that those are distinct threads of relevance, and
for good reason. The fact that notes were placed on women’s
cars would have virtually no significance if not for what the
notes said. And the “intent” that the majority infers from
the notes—an intent to commit sexual violence against
“female strangers”—is inferable only because the notes
were left for female strangers. The contents and placement
are of a piece.3 If the majority’s analysis of the “degree” of
    3
      The majority’s conclusion that the “contents” are relevant for reasons hav-
ing nothing to do with character, 

, is also inconsistent with the
conclusion reached in the first appeal, State v. Davis, 

, 

(2018) (Davis I). The majority is not bound by that decision, of course, but it pur-
ports to accept Davis I as “circumscribing” the issues on review. However, in stat-
ing that the notes are direct, noncharacter evidence of defendant’s “continuous
Cite as 

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character reasoning requires parsing the evidence in such
a counter-intuitive fashion, litigants and courts will strug-
gle to follow this approach. What if the evidence cannot be
broken out into (supposedly) distinct threads of relevance?
How does a court measure the “degree” of character-based
reasoning in such a case?
          When character evidence is offered under OEC
404(4), some “weighing” must occur, of course, but it is the
weighing required by OEC 403: the probative value of the
evidence against the risk of unfair prejudice. The other-
acts evidence must be probative, as Williams explained, of
something other than defendant’s character, such as intent,
motive, or identity; if it is probative only of bad character,
then “no permissible inference” may be drawn from it, and it
will fail OEC 403 balancing. 

. And character
also must be considered on the other side of the scale: The
risk of unfair prejudice, in this context, is the risk that the
evidence, though relevant for a noncharacter purpose (such
as intent), will be misused to decide guilt based on a charac-
ter judgment. See 

 at 18 (citing risk of factfinder “ ‘gener-
alizing a defendant’s earlier bad act into bad character and
taking that as raising the odds that he did the later bad act
now charged’ ” (quoting Old Chief v. United States, 

, 

, 

 (1997))).
         In short, when a character inference is present
somewhere in the logical theory of relevance, the due pro-
cess danger also is present: that the jury may render a
verdict based on the defendant’s character and not the evi-
dence. That danger is addressed through OEC 403 balanc-
ing. I am not convinced that trying to ascertain the “degree”
of character reasoning in the logical theory of relevance is a
coherent step in the analysis.
       Finally, having concluded that the trial court’s
weighing of the evidence passes muster under OEC 403, the

intent,” 

, the majority departs altogether from Davis I, which
held that any inference about defendant’s intent toward the victim, derived from
notes written several weeks earlier to other women, requires an intermediate
inference about defendant’s more general inclination to commit violence—i.e., his
character. Davis I, 

. It is unclear what purpose is served
by claiming to work within the holding of Davis I while rejecting the reasoning
underlying that holding.
656                                            State v. Davis

majority declines to address defendant’s argument that the
Due Process Clause of the federal constitution nevertheless
bars admission of the evidence. 

. The major-
ity rejects that argument as unpreserved. 

 I disagree.
         This court’s recent cases have made it clear that
the question whether character evidence may be admitted
under OEC 404(4) and OEC 403 is not truly severable from
due process concerns. See, e.g., Baughman, 

(noting that the OEC 403 balancing of character evidence is
not “devoid of due process considerations” and that “[a]s this
court explained in Williams, it is the Due Process Clause
that requires the application of OEC 403”); Williams, 

 (holding that, for admission of character evidence
under OEC 404(4), OEC 403 balancing is required by the
Due Process Clause to “ensure that the admission of ‘other
acts’ evidence is not unfairly prejudicial and a violation of
‘fundamental concepts of justice’ ”). The Court of Appeals
majority and dissent both understood that. It is true that
defendant did not use the words “due process” at the trial
court, but I am not sure that he needed to under our case
law; notably, the state not only declined to raise a preser-
vation objection to defendant’s due process argument but
expressly asked this court to review that issue. Whether the
Due Process Clause prohibits the admission of character
evidence that would otherwise survive OEC 403 balancing
is a pure legal question with which the parties have engaged
and that the record in this case allows us to answer.
         On the merits, I would conclude that the trial
court’s admission of the notes did not violate the Due
Process Clause. As this court recognized in Williams, the
United States Supreme Court has held that the due process
concerns raised by the admission of character evidence are
“obviated by the application of a rule of evidence that per-
mits a court to consider the risk of prejudice and exclude the
evidence when appropriate.” 

 (citing Dowling v.
United States, 

, 

, 

 (1990)). With that in mind, we concluded in Williams
that “subjecting proffered ‘other acts’ evidence to OEC 403
balancing is a due process requirement.” 

 The trial court
here fulfilled that requirement. For the reasons stated in
Cite as 

 (2024)                                657

Judge Armstrong’s dissent, the trial court’s OEC 403 bal-
ancing was not an abuse of discretion; moreover, as noted
above, no reason has been given to conclude that the Due
Process Clause requires a different result than in Williams
simply because this case involves an adult victim.
         Because I join in the majority’s disposition but not
in its reasoning, I respectfully concur.
        DeHoog, J., joins in this concurring opinion.