Background
Richard Henley was convicted in Polk County Circuit Court of tampering with a witness, disorderly conduct, and criminal mischief. The underlying conduct arose after Henley took the victim’s phone and stomped on it, breaking it — an act that was captured on video by the phone itself as it was being destroyed. The victim called police following the incident.
After the state charged Henley for breaking the phone, he contacted the victim repeatedly — “every day, all day long” — instructing her to testify that she had been “off her medication,” that “everything was a lie,” and that he had merely “dropped” the phone. He also warned her that her house could “accidentally” burn down if she did not testify in his favor. These communications formed the basis of the witness tampering charge.
At trial, Henley maintained that he had only urged the victim to testify truthfully, not falsely. To rebut that claim, the state offered the video recording from the victim’s phone showing Henley grabbing and stomping on it. Henley objected to admission of the video under Oregon Evidence Code (OEC) 403, arguing it was unfairly prejudicial. The trial court overruled the objection, found the video relevant and not unfairly prejudicial, and admitted it.
The Court’s Holding
The Oregon Court of Appeals affirmed the conviction in a per curiam nonprecedential memorandum opinion. Applying an abuse-of-discretion standard — under which a trial court’s evidentiary ruling is reversed only if it was “not justified by, and clearly against, evidence and reason” — the court concluded that the trial court properly exercised its discretion in admitting the video.
The court acknowledged that the video carried some risk of prejudice to Henley, given that it portrayed him in an unflattering light. However, it held that this risk did not rise to the level of unfair prejudice under OEC 403, which requires an “undue tendency to suggest a decision on an improper basis” unrelated to the evidence’s legitimate persuasive force. The court emphasized that the video was highly probative on the witness tampering charge because it directly contradicted Henley’s narrative — that he had only dropped the phone — and thus demonstrated that his instructions to the victim were aimed at procuring false testimony, not truthful testimony.
The court declined to address Henley’s additional argument that the video risked confusing the jury on the criminal mischief charge, because that argument had not been raised below and was therefore unpreserved for appeal.
Key Takeaways
- A trial court does not abuse its discretion under OEC 403 by admitting a video that is highly relevant to rebut a defendant’s central trial theory, even if the video reflects poorly on the defendant’s character.
- Evidence is “unfairly prejudicial” under Oregon law only when it tends to prompt a decision on an improper or emotional basis unrelated to its legitimate probative value — not merely because it is damaging to the defense.
- Arguments not raised at the trial court level are unpreserved and will not be considered on appeal, even if framed as an extension of an objection that was made below.
Why It Matters
This case illustrates the high bar defendants face when challenging the admission of relevant video evidence under OEC 403. Courts will weigh probative value heavily when evidence goes directly to the core dispute at trial — here, whether the defendant was coaching a witness to lie or to tell the truth. The more central the evidence is to a contested element of the charge, the less likely a court is to find that its prejudicial effect is “unfair” in the legal sense.
Although the opinion is nonprecedential under ORAP 10.30 and cannot be cited as authority, it reflects the consistent application of Oregon’s OEC 403 balancing test and underscores the importance of making all evidentiary arguments at the trial level to preserve them for appellate review.