Submitted on remand July 15, 2013.
On remand from the Oregon Supreme Court, State v. Hutton, 353 Or 533, 300 P.3d 1222 (2013). Jenefer Stenzel Grant, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, filed the briefs for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
In State v. Hutton, 250 Or.App. 105, 279 P.3d 240 (2012), we rejected defendant's challenge to the admission of evidence of his prior bad acts, holding that the evidence was relevant to prove intent, a nonpropensity purpose; we therefore affirmed his convictions for fourth-degree assault and harassment. The case is now before us on remand from the Supreme Court for reconsideration in light of that court's subsequent decision in State v. Pitt, 352 Or 566, 293 P.3d 1002 (2012). State v. Hutton, 353 Or 533, 300 P.3d 1222 (2013). On remand, we conclude that, in light of Pitt and other later-decided cases, the trial court erred in unconditionally admitting evidence of defendant's prior bad acts--that is, admitting the evidence in the absence of (1) defendant's concession that the charged acts occurred or (2) an instruction to the jury that it was not to consider the prior acts as evidence of defendant's mental state until it first found that defendant in fact committed the charged acts. Accordingly, we now reverse and remand on the basis of that evidentiary error.
We repeat our original description of the background of this appeal:
"On Valentine's Day in February 2009, defendant and the victim, Feinstein, were 'hanging out together' and drinking alcohol in a trailer. Defendant and Feinstein had been in a romantic relationship in the past but, as of that night, were not 'officially together.'
"From there, their stories diverge. According to Feinstein, they fell asleep in the bedroom of the trailer. She awoke a short time later to use the bathroom and get something to drink. When she returned to the bedroom, defendant was sitting in the bed and smoking a cigarette. They proceeded to argue about the trailer and other 'touchy' subjects. Defendant became angry and hit her in the mouth. She took a step back, and defendant reached out, put his cigarette on her chest, and used it to push her back. Feinstein then went to the living room of the trailer, and defendant stayed in the bedroom until he left approximately an hour and a half later. The following day, her lip was swollen and sore, and she felt a burning sensation on her chest. She called the police and reported that defendant had injured her. Defendant was charged with two counts of fourth-degree assault (one count for striking Feinstein and another for burning her) and two counts of harassment (again, one count for striking Feinstein and another for burning her), and he proceeded to trial on those charges.
"During his opening statement, defendant's counsel advanced a different version of the events, arguing that no assault or harassment had occurred. He stated, 'My client did not strike Miss Feinstein, he did not put out a cigarette on her, and that's what we're going to prove here at the end of the day.' Defendant's theory, which he later testified in support of, was that he left the trailer around 10:30 p.m. and returned to find Feinstein passed out drunk on the floor, at which point she told him that she had burned herself.
"After defendant's opening statement, the prosecutor moved in limine for a ruling on the admissibility of evidence of prior misconduct--namely, evidence that, in 2007, defendant had hit Feinstein in the lip during an argument in the trailer, causing her lip to swell. Defendant had been indicted in a separate case on charges arising out of that earlier incident but still had not yet been tried on those charges by the time of trial in this case.
"The prosecutor argued that evidence of the prior assault was admissible under OEC 404(3) because it was relevant for 'showing intent in this case.' The prosecutor framed her argument in terms of the five-part test set forth in State v. Johns, 301 Or 535, 557-59, 725 P.2d 312 (1986), for determining 'whether the probative value of the evidence exceeds its prejudicial nature.' The prosecutor, focusing on the 'first prong' of that test, argued that evidence of the prior assault was necessary 'to show the jury that this incident was not some odd accident--it sounds as though there's a defense that this did not--he did not commit the action on it but there's another explanation.' Relying on State v. Wieland, 131 Or.App. 582, 887 P.2d 368 (1994), the prosecutor argued that, as a matter of logic, 'the more often that an unusual event occurs, such as getting a fat lip or having injuries around the neck area, the less likely it is that that occurrence is accidental.' See id. at 589 ('As a matter of logic, the more often an unusual event occurs, the less likely it is that the occurrence is accidental. Because this evidence [of a prior arson] has a tendency to make the fact that the 1986 fires were caused by arson more likely, it is relevant. OEC 401.'). The prosecutor further argued that the evidence was relevant to prove defendant's mental state on the harassment charges. She explained that the context of the testimony by Feinstein 'would be when we're discussing the victim's state of mind in reaction to what was happening, why did she react the way she did, because she had experienced this before, ' and also argued that prior assaults by defendant against Feinstein 'are actually going to go to show his intent that's required on the Harassment charges.' The prosecutor, thus, was suggesting that because defendant had engaged in a pattern of abuse with Feinstein and had punched her in the mouth in the past, he therefore knew how she would react to that type of abuse.
"Defendant, meanwhile, argued that 'the defense is not that it was somehow accidental, it's that it did not happen, in fact[.]' Defendant directed the trial court to 'what was said here in opening, ' when defendant's counsel stated that defendant did not strike Feinstein, did not put out a cigarette on her, and 'that's what we're going to prove here at the end of the day.' Thus, defendant argued, the prior assault was being offered only ...