Argued and Submitted: October 16, 2013.
Umatilla County Circuit Court CF110240. Christopher R. Brauer, Judge.
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jake J. Hogue, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[262 Or.App. 23] ORTEGA, P. J.
After a jury trial, defendant was convicted of unauthorized use of a vehicle, ORS 164.135; attempting to elude a police officer, ORS 811.540; two counts of first-degree criminal mischief, ORS 164.365; unlawful possession of methamphetamine, ORS 475.894; recklessly endangering another person, ORS 163.195; and reckless driving, ORS 811.140. On appeal, defendant contends that the trial court erred in admitting evidence of his prior bad acts under OEC 404(3) to prove his identity and that this error was not harmless. We agree and, therefore, reverse and remand.
We review a trial court's ruling on the admissibility of evidence under OEC 404(3), for legal error. State v. Garrett, 350 Ore. 1, 6, 248 P.3d 965 (2011) (citing State v. Titus, 328 Ore. 475, 481, 982 P.2d 1133 (1999)); see also State v. Pinnell, 311 Ore. 98, 109 n 17, 806 P.2d 110 (1991) (whether prior bad act evidence is admissible " is a question of logical relevancy which the trial judge must decide under OEC 404(1)" ). As the proponent of the evidence, the state has the burden of demonstrating that the proffered evidence was relevant and probative of some noncharacter purpose. State v. Pitt, 352 Ore. 566, 576, 293 P.3d 1002 (2012).
According to testimony at trial, late one night in August 2011, the victim saw a man with facial hair and wearing a white baseball cap steal his white 1991 GMC Jimmy (the GMC) from a parking lot. The victim immediately called 9-1-1 and a police officer, Palmer, responded. As Palmer and the victim were speaking, somebody drove the GMC by their location, at which point Palmer got into his patrol car to pursue the vehicle.
While pursuing the GMC, Palmer called for backup and another officer, Wolverton, joined the chase. Eventually, the GMC turned down a dead-end street and the officers parked their patrol cars so as to block the GMC from leaving. The driver of the GMC then put the car into reverse and crashed into Palmer's patrol car at about 35 or 40 miles per hour, temporarily disabling it. The driver then drove forward through the dead end, onto a river walkway, knocking over a light pole as he drove away.
[262 Or.App. 24] Shortly thereafter, Palmer saw a plume of dust near a baseball field and discovered the GMC. He then alerted Wolverton, who drove to that area. A few minutes after Wolverton parked, he saw defendant walk across the street. Defendant was calm, but sweating heavily. When asked, defendant denied that he had been the driver of the GMC. He told the officers that he was coming from a friend's house and was heading home. Defendant admitted that he had used methamphetamine earlier that evening.
Wolverton arrested defendant, searched him, and found a pack of Camel 99 cigarettes with a lime-green Bic lighter; the victim later confirmed that that cigarette pack and lighter matched those that had been taken from his GMC. Inside the GMC, the officers found a white baseball cap and two backpacks that did not belong to the victim. One of the backpacks contained envelopes that were ...