No. 711 July 29, 2026 789
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KYLE IVAN SPICER,
Defendant-Appellant.
Lane County Circuit Court
23CR57786; A185041
Debra E. Velure, Judge.
Argued and submitted May 21, 2026.
Kelsey Townsend, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Dan
Rayfield, Attorney General, and Benjamin Gutman, Interim
Deputy Attorney General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Reversed and remanded.
790 State v. Spicer
JOYCE, J.
Defendant appeals from a judgment of conviction
for driving while suspended (DWS) and failure to perform
duties of a driver when property is damaged (hit and run).
On appeal, defendant raises a single assignment of error,
contending that the trial court erred by admitting evidence
of defendant’s prior abuse of a witness over defendant’s OEC
403 objection. Defendant argues that the evidence of prior
abuse was substantially more prejudicial than probative
and that the trial court abused its discretion in admitting
it. See State v. Alvarado, 312 Or App 177, 187, 492 P3d 712
(2021) (reviewing a trial court’s decision to admit evidence
challenged under OEC 403 for abuse of discretion). We agree
with defendant and therefore reverse and remand.
The following facts are undisputed. Defendant’s
wife, Mitchell, owned a white Honda.1 In November 2023,
that white Honda made a left turn at an intersection and
collided with a vehicle, which had the right of way. Both vehicles were damaged by the collision. The driver of the white
Honda drove away from the scene without exchanging information with the other driver. Defendant was later arrested
and charged with DWS and hit and run. Defendant stipulated to the fact that, at the time of the collision, his driving privileges had been revoked. His defense to the charges relied entirely on the theory that it was defendant’s friend, Bubba, who had been driving the white Honda at the time of the collision, not defendant.
At trial, the state called Mitchell as a witness.
Although Mitchell did not witness the collision, she did testify to having seen Bubba driving defendant home in the
Honda after the collision. The prosecutor asked Mitchell
several questions regarding her relationship with defendant. The prosecutor asked how long Mitchell had been
in a relationship with defendant and how defendant being
convicted would impact Mitchell financially.2 The prosecu1
Although defendant and Mitchell were not legally married at the time of the proceedings, they had been in a relationship for nearly two decades and referred to each other as husband and wife.
2
When asked whether defendant being convicted would create a financial hardship for her, Mitchell testified, “A small one, but not big enough that it would affect me too bad.” The state also presented evidence, through the testimony of Cite as 351 Or App 789 (2026) 791
tor then asked, “Are you afraid of [defendant]?” to which
Mitchell answered, “No.” The prosecutor followed up by asking, “Has [he] ever abused you in the past?” Defense counsel
objected to that question, explaining that he was objecting
to the prior bad acts evidence on the grounds of OEC 403
because the evidence was significantly more prejudicial
than probative. The prosecutor explained that she believed
the evidence went to Mitchell’s bias and impeached her testimony that she did not fear defendant.
The trial court admitted the evidence, explaining that it was “relevant for bias or motive” and served to
impeach Mitchell’s testimony that she was not afraid of
defendant. The court further explained that, although discussion of a prior bad act would entail a prejudicial effect, Mitchell’s testimony related to whether defendant was driving the car, so her credibility, bias, and motive “related to that element of the crime, and the State has a strong interest in that.” The prosecutor again asked Mitchell whether
defendant had abused her in the past, to which she said,
“Yes.”
On appeal, defendant argues that the trial court
erred by admitting evidence of defendant’s prior abuse of
Mitchell over defendant’s OEC 403 objection. Under OEC
403, relevant evidence may be excluded if, as pertinent to
this case, “its probative value is substantially outweighed by the danger of unfair prejudice[.]” When determining whether
to exclude evidence under OEC 403, courts engage in a fourstep process: (1) “[a]ssess the proponent’s need for the * * * evidence” by analyzing the “probative value of the evidence
and consider[ing] the weight or strength of the evidence,” (2) “determine how prejudicial the evidence is, to what extent
the evidence may distract the jury from the central question
whether the defendant committed the charged crime,” (3)
balance “the [proponent’s] need for the evidence against the
countervailing prejudicial danger of unfair prejudice,” and
(4) make a ruling regarding whether to admit or exclude, in
whole or in part, the evidence. State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987).
defendant and Mitchell’s landlord, that Mitchell had come to her to pay rent early so that Mitchell would “be okay while [defendant] was gone.”
792 State v. Spicer
The trial court’s admission of evidence under the
Mayfield framework was outside the range of legally permissible choices because the evidence was substantially more
prejudicial than probative. See State v. Gibson, 299 Or App
582, 589, 451 P3d 259 (2019), rev den, 366 Or 691 (2020) (“In evaluating a trial court’s discretionary ruling under OEC
403, our role is to assess whether the court’s decision falls within the range of legally permissible choices.”). First, any probative value of the evidence was slight. The state contends on appeal, as it did below, that the state needed to be able to impeach Mitchell because she was biased and was providing potentially exculpatory evidence. However, the evidence
of prior abuse was cumulative of the other bias evidence
that had been introduced—including information about the
length of defendant and Mitchell’s relationship and possible
financial repercussions for Mitchell if defendant were convicted. Mitchell also did not provide any direct evidence of
who was driving the vehicle at the time of the collision, just circumstantial evidence—who she saw driving it later.
Further, Mitchell’s testimony that defendant had
perpetrated domestic violence in the past was highly prejudicial, outweighing any minimal probative value. See
Alvarado, 312 Or App at 190 (“Evidence is unfairly prejudicial under OEC 403 if it has ‘an undue tendency to suggest decisions on an improper basis, commonly although not
always an emotional one.’ ” (Quoting State v. Moore, 324 Or
396, 407-08, 927 P2d 1073 (1996).)). Evidence that defendant
was a perpetrator of domestic violence was inflammatory
and was likely to have influenced the jury to decide his
guilt on an improper basis. See State v. Williams, 357 Or
1, 18, 346 P3d 455 (2015) (explaining that the admission of
other acts evidence carries the risk of a jury “generalizing
a defendant’s earlier bad act into bad character and taking
that as raising the odds that [they] did the later bad act
now charged” (quoting Old Chief v. United States, 519 US
172, 180, 117 S Ct 644, 136 L Ed 2d 574 (1997))); Mayfield,
302 Or at 644 (“Evidence is prejudicial under OEC 403 if it
tempts the jury to decide the case on an improper basis[.]”). Therefore, we conclude that the trial court erred when it
admitted evidence of defendant’s prior abuse of Mitchell
over defendant’s OEC 403 objection.
Cite as 351 Or App 789 (2026) 793
Having concluded that the trial court erred, we turn
to whether that error was harmless. An error is harmless
only when there is “little likelihood that the particular error affected the verdict[.]” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, we cannot say that there was little likelihood that the admission of evidence that defendant had
previously abused Mitchell affected the verdict. Although
the state contends that the jury would have understood that
it could only consider the evidence of prior abuse in assessing Mitchell’s credibility, under the circumstances here, the evidence of prior abuse risked improperly biasing the jury
against defendant. Defendant’s theory of the case was that
defendant’s friend, not defendant, was the one driving at
the time of the collision. There was no direct evidence supporting that theory, as the jury did not hear from defendant
himself. Therefore, any negative view held by the jury of
defendant caused by the improperly admitted evidence was
likely to affect their view of his proffered theory of events. In reaching that conclusion, and in rejecting the state’s argument about how the jury would have understood the relevance of the evidence of prior abuse, we note that the trial
court did not give a limiting instruction to the jury that it could consider the evidence of prior abuse only in assessing
Mitchell’s credibility. Therefore, we reverse and remand for
a new trial.
Reversed and remanded.