Submitted on July 30, 2013.
Tillamook County Circuit Court 106338, Mari Garric Trevino, Judge.
Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals a judgment of conviction for strangulation, ORS 163.187, based on conduct involving his ex-girlfriend. On appeal, defendant assigns error to the trial court's ruling admitting evidence of his prior criminal conviction for assault against another former girlfriend, AM. We conclude that the admission of the prior bad acts evidence under OEC 404(3) is error apparent on the face of the record, State v. Jones, 258 Or.App. 1, 6, 308 P.3d 347 (2013), and exercise our discretion to review and remedy that error. Therefore, we reverse and remand.
Defendant was charged with two counts of strangulation of his ex-girlfriend and the couple's four-year-old son, C. The charges involved allegations that defendant had placed his hands around C's neck, choking him and impeding his breathing. Additionally, defendant allegedly shoved the complainant against the wall, held her there by placing his forearm on her neck, rendering her unable to breathe, and then grabbed the complainant's neck and choked her, at which point she was again unable to breathe.
In a pre-trial motion in limine, the state argued that the prior bad acts evidence pertaining to defendant's prior assault conviction satisfied the test for admissibility as set forth in State v. Johns, 301 Or 535, 725 P.2d 312 (1986). In response to the state's motion, defendant argued that the evidence was inadmissible because it did not satisfy the Johns criteria. The trial court ruled that the evidence was admissible for the "limited purpose of knowledge, the mens rea of the crime, " and that a limiting instruction would be necessary.
At trial, the state presented testimony from the complainant, the complainant's mother, and AM. The complainant testified that she and defendant had attended a family reunion at a hotel in Rockaway Beach. She stated that she found defendant alone in the couple's shared hotel room with his hands around C's neck and that C did not appear to be breathing. She testified that defendant placed his forearm on her neck, pushed her against a wall, choked her, and yelled at her. However, neither she nor C had sustained any marks, redness, or bruising from the incident. She also testified that she had had a conversation in which she told defendant's sister that she was afraid of defendant.
Complainant's mother testified that, on the morning of the incident, she saw the complainant crying and trying to get herself under control, but did not see any bruising, marks, or redness on either the complainant or C. AM testified that she had been in a romantic relationship with defendant for over a year. One evening, the two began to argue. Defendant yelled profanities at AM and threatened to kill her. AM testified that defendant then threw her up against the wall and began choking her. AM stated that she was unable to breathe, and, as she tried to fight back, defendant threw her to the floor, put his knee on her neck, and choked her. After disabling her phones so that she was unable to call for help, defendant left the apartment. Neighbors called the police, and AM reported the incident when the officers came to her apartment. Defendant pleaded guilty to assault in the fourth degree in 2004 as a result of that incident.
Pursuant to the pretrial rulings, the state offered and the court admitted both AM's testimony and the judgment of conviction for the assault charge to prove defendant's intent. The trial court gave the following precautionary instruction after AM's testimony:
"[AM]'s testimony is only admissible and relevant as to the knowledge element of the crimes charged. You may not consider her testimony for any other purpose. More specifically, you may not use her testimony to infer that the defendant has a propensity or tendency to commit the charged crimes."
Defendant's theory of the case was that the incident with the complainant had not occurred. Defendant presented testimony of his sister, aunt, mother, and stepfather. Each witness testified that, on the morning of the alleged strangulation, neither the complainant nor C appeared to have been crying or upset, and had no visible marks, bruising, or redness. Defendant's sister contradicted ...