Submitted on July 31, 2012.
Deschutes County Circuit Court MI090018 Edward L. Perkins, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
In this criminal case, defendant was charged with one count of assault in the fourth degree constituting domestic violence, ORS 163.160, ORS 135.230(3) - (4), and one count of harassment constituting domestic violence, ORS 166.065(1), ORS 135.230(3) - (4). The charges arose from an altercation between defendant and his then-girlfriend, the victim. Before trial, the state filed a motion seeking a ruling on the admissibility of evidence of prior altercations between defendant and the victim, during which, the victim claimed, defendant was the initial aggressor and injured her. Defendant objected, asserting that the evidence was inadmissible under OEC 404(3), which provides, in part, that "[e]vidence 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." The trial court ruled that the evidence was admissible to prove, inter alia, defendant's "intent" and the "matter of self-defense."
At the subsequent jury trial, the state presented evidence of the prior altercations. The jury found defendant guilty of fourth-degree assault, but not guilty of harassment. The trial court entered a judgment convicting defendant of fourth-degree assault and sentencing him to 24 months of probation.
Defendant appeals the judgment, assigning error to the trial court's admission of evidence of the prior altercations. For the reasons explained below, we affirm.
Whether evidence of uncharged misconduct is relevant for a noncharacter purpose is a question of law; accordingly, we review a trial court's conclusions regarding the relevance of such evidence for errors of law. State v. Titus, 328 Or 475, 481, 982 P.2d 1133 (1999). When doing so, we are bound by the court's findings of historical fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). If the court did not make findings on a particular issue, and there is evidence from which the facts could be decided more than one way, we presume that the court found the facts consistently with its ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P.2d 621 (1968). We state the facts in accordance with those standards.
Defendant and the victim were romantically involved and lived together intermittently from 2006 to 2008. On December 18, 2008, they had a physical altercation. The victim called the police and, when they arrived, she reported that defendant had punched her in the face several times, thrown her around the bedroom, and, when she was on the floor, kicked her in the face two or three times with his hiking boots. The victim also told the officers that defendant had put his hand over her mouth and that she had bitten his finger. The officers observed that the victim had scratches and a bruise on her face and was bleeding from the mouth.
Defendant told the officers that the victim had attacked him. He said that she had bitten him and that, in response, he had pushed her face away with his hand. Defendant told the police that the victim had scratched her own face in order to get him in trouble. The officers did not see any blood or skin under defendant's fingernails; they saw blood and what they thought might have been skin under the victim's fingernails. The officers arrested defendant.
As mentioned, defendant was charged with fourth-degree assault constituting domestic violence and harassment constituting domestic violence. "A person commits the crime of assault in the fourth degree if the person * * * [i]ntentionally, knowingly or recklessly causes physical injury to another[.]" ORS 163.160(1), (1)(a). In this case, the state alleged that defendant recklessly assaulted the victim. For the purposes of the fourth-degree assault statute, "recklessly" is defined by ORS 161.085(9), which provides:
"'Recklessly, ' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."
Thus, to prove that a defendant has committed fourth-degree assault through reckless conduct, the state must prove that (1) the defendant engaged in conduct (2) when he was aware that the conduct created a substantial and unjustifiable risk of physically injuring another person, but consciously disregarded that risk, and, by doing so, grossly deviated from the standard of care that a ...