Submitted on remand March 13, 2013.
Marion County Circuit Court 09C42268
On remand from the Oregon Supreme Court, State v. Goff, 353 Or 208, 297 P.3d 480 (2013).
L. E. Ashcroft, Judge. (Judgment)
Joseph V. Ochoa, Judge. (Amended Judgment)
Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John Kroger, Attorney General, Mary H. Williams, Solicitor General, and Linda Wicks, Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Egan, Judge.
Defendant appeals a judgment of conviction for one count of second-degree assault constituting domestic violence, ORS 163.175, two counts of fourth-degree assault constituting domestic violence, ORS 163.160, failure to perform the duties of a driver, ORS 811.700, tampering with physical evidence, ORS 162.295, and disorderly conduct, ORS 166.025. Defendant assigns error to the trial court's order denying his motion in limine to exclude evidence of two prior domestic violence incidents; he contends that that prior misconduct evidence should have been excluded as impermissible character evidence under OEC 404(3). We initially affirmed without opinion, State v. Goff, 247 Or.App. 353, 271 P.3d 154 (2011), defendant petitioned for review, and the Oregon Supreme Court remanded the case to us in light of State v. Leistiko, 352 Or 172, 282 P.3d 857, adh'd to as modified on recons, 352 Or 622, 292 P.3d 522 (2012). State v. Goff, 353 Or 208, 297 P.3d 480 (2013). Based on Leistiko, we now conclude that the trial court erred in admitting evidence of defendant's prior misconduct and, accordingly, we reverse and remand.
We review questions of relevance under OEC 404(3) for errors of law. See State v. Garrett, 350 Or 1, 6, 248 P.3d 965 (2011) (citing State v. Titus, 328 Or 475, 481, 982 P.2d 1133 (1999)). "[T]he burden is on the party offering the evidence to show that the proffered evidence is relevant and probative of something other than a disposition to do evil." State v. Pratt, 309 Or 205, 210, 785 P.2d 350 (1990). Because defendant assigns error to the trial court's denial of his motion in limine, we "evaluate that argument in light of the record made before the trial court when it issued the order, not the trial record as it may have developed at some later point." State v. Pitt, 352 Or 566, 575, 293 P.3d 1002 (2012) (explaining how an appellate court reviews the denial of a motion in limine). However, when determining whether the erroneous admission of evidence was harmless, "we describe all pertinent portions of the record." State v. Cunningham, 179 Or.App. 359, 362 n 2, 40 P.3d 1065 (2002), rev'd on other grounds, 337 Or 528, 99 P.3d 271 (2004).
According to the testimony submitted at trial, defendant was arguing with his wife at their shared residence. Defendant grabbed his wife's phone and threw it in the bathtub with enough force to break the phone. Not long thereafter, defendant's wife was found nearby, stumbling down a road. She had blood on her face and hands, and her face was swollen.
Defendant's wife was taken to a hospital. She had sustained a broken jaw; bruising on her forehead, forearm, and hand; and red marks on her neck. A medical expert testified that the wife's jaw injury involved the application of significant force, consistent with a punch. Another medical expert testified that the red marks on the wife's neck could be ligature marks, possibly made by a cord. Defendant's wife testified that she could not fully remember how she sustained her injuries--her memory was "in and out." According to the wife, she went outside, fell on some concrete blocks, and did not remember anything further.
Defendant was arrested. He told a sheriff's deputy that he had not assaulted his wife. However, there were visible cuts on defendant's hands. Defendant said that he ...