Background
Dylan Andrew Zaccone appealed a judgment convicting him of attempted fourth-degree assault. At trial, the state introduced evidence that Zaccone had threatened to get a gun and shoot the victim.
Zaccone moved to exclude the threat as inadmissible “other acts” evidence under OEC 404. He further argued that, if the trial court deemed it admissible for a nonpropensity purpose, the court should determine under OEC 403 whether unfair prejudice nevertheless required exclusion. The trial court admitted the evidence, concluding that the threat was not a prior bad act and was relevant.
The Court’s Holding
The Oregon Court of Appeals affirmed because Zaccone did not preserve the OEC 403 argument he raised on appeal. His appellate position was that the threat should have been excluded as unfairly prejudicial under OEC 403 regardless of whether it qualified as “other acts” evidence.
That argument differed from the conditional OEC 403 argument presented to the trial court, which depended on the evidence first being treated as admissible “other acts” evidence. Because Zaccone had not made his appellate argument below, he could not fault the trial court for failing to conduct the balancing he now asserted was required. The court also declined plain-error review because Zaccone neither requested it nor supplied a plain-error argument.
Key Takeaways
- An evidentiary objection must present the trial court with the same theory later advanced on appeal.
- A conditional OEC 403 argument tied to an OEC 404 ruling does not preserve an independent claim that OEC 403 balancing was required regardless of the evidence’s classification.
- The Court of Appeals ordinarily will not undertake plain-error review without an express request and supporting argument.
Why It Matters
The decision underscores the need for trial counsel to state each independent ground for excluding evidence clearly and unconditionally. Raising OEC 403 only as a fallback to an OEC 404 theory may not preserve a broader unfair-prejudice challenge.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as that rule permits.