Defendant argues that the 1995 and 1997 amendments to ORS 163.150(1)(a) and (c)(B) fundamentally altered the nature of the fourth question, by allowing the state to introduce new and different evidence than it was permitted to introduce at the time when defendant committed his crimes. Thus, defendant argues, retroactive application of the later-enacted amendments to his penalty-phase proceedings violates the ex post facto prohibition set out in Article I, section 21, see ___ Or at ___ n 5 (slip op at 6 n 5) (setting out provision), which this court recently analyzed in State v. Fugate, 332 Or. 195, 210-15, 26 P.3d 802 (2001). The state responds, first, that the ex post facto prohibition of Article I, section 21, applies to only those changes in the rules of evidence that make conviction more likely.
a. State ex post facto analysis In State v. Fugate, 332 Or 195, 214, 26 P3d 802 (2001), the Oregon Supreme Court explained that Article I, section 21, of the Oregon Constitution "prohibits the application of the types of laws that the framers of the Oregon Constitution understood to be prohibited by the Ex Post Facto Clause of the United States Constitution." That is to say, the framers of the Oregon Constitution intended the state ex post facto clause to apply to whatever laws were subject to the federal counterpart as of 1857.
Defendant raises both state and federal ex post facto challenges to the 1995 registration requirements. Although this court in the past has "construe[d] these particular state and federal provisions without distinguishing them," State v. Wille, 317 Or. 487, 502, 858 P.2d 128 (1993), this court's constitutional methodology requires that we first consider defendant's argument under Article I, section 21, of the Oregon Constitution. See State v. Fugate, 332 Or. 195, 210, 26 P.3d 802 (2001) (citing State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996), for ex post facto analytical paradigm). Doing so is particularly appropriate now because, in Cookman, and later in Fugate, this court did not defer to the federal ex post facto analysis, but instead relied on the formulation established in Priest v. Pearce, 314 Or. 411, 840 P.2d 65 (1992), to ascertain the meaning of Article I, section 21.
Two Supreme Court decisions involving laws in the substantive area of criminal law illustrate that point. In State v. Fugate. 332 Or 195, 204, 26 P3d 802 (2001), the law at issue, Senate Bill (SB) 936 (1997), effected substantive legislative change in five distinct ways: (1) "directly provid[ing] various specific rights to crime victims" (in sections 2, 3, 4, 5, 6, 7, 11, 12, 13, and part of section 20); (2) "deal[ing] at various levels with the admissibility of evidence in criminal trials" (in sections 1, 22, 29, and 37); (3) "deal[ing] with release criteria respecting those accused of crimes" (sections 18 and 19, and the remainder of section 20); (4) "address[ing] criminal sentencing and orders for restitution" (in sections 14, 15, 16, 17, 23, 24, 26, 27, and 32); and (5) "mak[ing] various changes to the law respecting juries in criminal cases" (in sections 8, 9b, 21, and 25). Notwithstanding the wide range of criminal justice matters addressed by the law, the court upheld it against a single-subject challenge.
EDMONDS, P.J. This case is before us on remand from the Supreme Court for reconsideration in light of State v. Fugate, 332 Or. 195, 26 P.3d 802 (2001). State v. Jaehnig, 333 Or. 97, 37 P.3d 980 (2001).
Article I, section 21, also prohibits retroactive alterations of evidentiary rules that make it easier for the state to obtain a conviction. State v. Fugate, 332 Or 195, 213-14, 26 P3d 802 (2001). Defendant's ex post facto argument is premised on his claim that SB 528 unconstitutionally alters evidentiary rules because "this new scheme helps the state, not just by restoring its ability to secure aggravated departures, but also by generally allowing the state to present evidence and jury instructions on factors that highlight the aggravated nature of a defendant's crimes in way that the jury otherwise would not hear."
Article I, section 21, provides, in part, that "[n]o ex-post facto law * * * shall ever be passed * * *." In State v. Fugate, 332 Or 195, 213, 26 P3d 802 (2001), this court explained that the ex post facto clause in Article I, section 21, prohibits the application of "laws that alter the rules of evidence in a one-sided way that makes conviction of the defendant more likely" than the conviction would have been at the time when the defendant allegedly committed the charged offense. To the extent that it purports to limit the trial court's authority under OEC 403 to exclude relevant, but prejudicial, evidence of a defendant's other crimes to only those circumstances when exclusion is constitutionally required, OEC 404(4) clearly qualifies as an evidentiary change in the law that favors only the prosecution by making the conviction of a defendant more likely.
The ex post facto clause of the Oregon Constitution, for example, forbids the retroactive application of certain types of criminal statutes. See generally State v. Fugate, 332 Or. 195, 211, 26 P.3d 802 (2001) (discussing doctrine). Article I, section 21, of the Oregon Constitution, provides, in part:
Before this court, defendant makes two distinct arguments. He argues, first, that SB 936 is unconstitutional in its entirety on a variety of grounds. We have considered those arguments and decided them against defendant's position in State v. Fugate, 332 Or. 195, 26 P.3d 802 (2001). Defendant's second set of arguments raises questions of the constitutionality of SB 936 as it is applied to his case.
LANDAU, P.J. This is another case that comes to us on remand from the Supreme Court for reconsideration in light of State v. Fugate, 332 Or. 195, 26 P.3d 802 (2001). In our original opinion, State v. Peppard, 172 Or. App. 311, 18 P.3d 488 (2001), we reversed and remanded an order suppressing evidence obtained during a traffic stop.