Submitted April 22, 2014
Marion County Circuit Court. 10C51442. Claudia M. Burton, Judge.
Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[263 Or.App. 247] SERCOMBE, P. J.
Defendant, who was convicted of murdering her husband, appeals and raises two assignments of error. We reject her first assignment of error without discussion and write only to address her second assignment. In that assignment of error, defendant contends that the trial court erred when it allowed
the state to present evidence that, nine months prior to the incident in question, defendant had stabbed the victim twice. Defendant asserts that that evidence was inadmissible under OEC 404(3). We conclude that the evidence was properly admitted under OEC 404(3) and, therefore, affirm.
The relevant background facts are undisputed on appeal. In early 2010, defendant pleaded guilty to second-degree assault for stabbing the victim twice while they were intoxicated and arguing. Approximately nine months later, the victim was found in his home dead of multiple stab wounds. Eventually, defendant, who had been drinking with the victim at his home on the night in question, admitted that she had been angry and stabbed the victim. However, she asserted that she had meant only to scare him.
Before trial, the state filed a motion in limine to introduce evidence of defendant's prior stabbing of the victim under OEC 404(3) to prove that defendant intended to murder the victim. The court agreed, concluding that the evidence was relevant to defendant's intent and ruling that the state would be " permitted to introduce evidence concerning defendant's prior stabbing of her husband at trial." The state introduced the evidence at trial, and the court instructed the jury that it could consider the evidence " only for the purpose of deciding whether the defendant acted with the mental state, intentionally, that is alleged in the murder charge in this case." The jury found defendant guilty of murder.
[263 Or.App. 248] On appeal, we review the trial court's conclusion for errors of law. See State v. Berg, 223 Or.App. 387, 396, 196 P.3d 547 (2008), adh'd to as modified on recons, 228 Or.App. 754, 208 P.3d 1006, rev den, 346 Or. 361, 211 P.3d 930 (2009) ( " Whether evidence of prior bad acts is relevant for a noncharacter purpose, and thus admissible under OEC 404(3), is a question of law." ). OEC 404(3) " prohibits the admission of evidence of other crimes, wrongs, or acts to prove a person's character in order to show that the person acted in conformity with that character, but allows for the use of such evidence for any other relevant purpose." Id. ; see State v. Johns, 301 Or. 535, 548, 725 P.2d 312 ...