Submitted June 24, 2014
Jefferson County Circuit Court. 12FE0120. Annette C. Hillman, Judge.
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, 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 Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and Tookey, Judge, and De Muniz, Senior Judge.
[265 Or.App. 543] TOOKEY, J.
Defendant appeals a judgment of conviction arising out of a bench trial, during which defendant was convicted of assault in the second degree (Count 2), ORS 163.175, and found guilty of assault in the fourth degree (a lesser-included charge of Count 1, assault in the second degree, ORS 163.175) and unlawful use of a weapon (Count 4), ORS 166.220. Defendant, who raised the defense of self-defense at trial, raises five assignments of error on appeal. We reject without discussion defendant's third and fourth assignments of error, in which she argues, respectively, that the trial court erred by denying defendant's motion for judgment of acquittal on Counts 2 and 4. We write only to address defendant's second assignment of error, in which she argues, under OEC 404(1), that the trial court erred by excluding evidence that the complainant had assaulted defendant 10 years previously. We review for errors of law, conclude that the trial court erred in excluding that evidence, and further conclude that that error was not harmless. See State v. Beisser, 258 Or.App. 326, 334, 308 P.3d 1121 (2013) (" Whether evidence is admissible under OEC 404(1) is a question of law, which we review for errors of law." ). Accordingly, we reverse and remand defendant's conviction on Counts 1, 2, and 4, remand for resentencing, and otherwise affirm.
The record discloses the following facts. Defendant and the complainant met in 1999, were married for a period of time, and had lived together for approximately 10 years. On the night in question, they were both intoxicated and were arguing at home. They had had problems before. The complainant was scared and left the home. He returned after " maybe a half hour, or not even that."
When the complainant returned, defendant tried to lock him out of the home, and he forced his way back in; he [265 Or.App. 544] stuck his hand in the door and forced it open. He pushed defendant, she " came at" him, and he pushed her again. The complainant then sat on a chair that he regularly used in the combined kitchen/living room.
Defendant " threw to the side or tossed off the counter or the stove" a pot of beans. She then began " throwing objects and striking the [complainant]" ; the objects included a frying pan and a glass ashtray. The complainant sustained injuries to his forehead, head, and neck. He " ended up in the bedroom, curled up on the floor with his hands up over his head[.]"
Defendant was charged by indictment with two counts of second-degree assault for causing injury to the complainant by means of a dangerous weapon: the frying pan (Count 1) and the ashtray (Count 2). She was also charged with two counts of unlawful use of a dangerous weapon: the frying pan (Count 3) and the ashtray (Count 4). Defendant raised the defense of self-defense.
At trial, to support her defense of self-defense, defendant sought to elicit testimony from the complainant that he had previously assaulted defendant. The trial court excluded that evidence:
" BY [DEFENSE COUNSEL]:
" Q. Have you assaulted [defendant] in ...