Submitted July 30, 2014.
Coos County Circuit Court 12CR0999. Richard L. Barron, Judge.
Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.
[269 Or.App. 851] LAGESEN, J.
A jury convicted defendant of one count of unlawful possession of methamphetamine, ORS 475.894. Officers found the methamphetamine in a jewelry box in defendant's bedroom after defendant consented to a search of his home; defendant denied knowing that the methamphetamine was in the jewelry box. At trial, the court admitted evidence (in the form of statements by defendant to the arresting officer) that, the previous year, defendant had pleaded guilty to possessing methamphetamine that his girlfriend had left in his car; the court ruled that the evidence of that prior incident was admissible under OEC 404(3) to demonstrate that defendant knew that the methamphetamine was in the jewelry box.
On appeal, defendant assigns error to the trial court's admission of that evidence. Defendant argues that the court erred in determining that the prior incident was admissible to demonstrate his knowledge. In the alternative, although defendant did not request a limiting instruction in connection with that evidence, or object to the trial court's failure to deliver one, he contends that the trial court plainly erred by admitting it without instructing the jury, in accordance with 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), that it could not consider the evidence unless and until it found that defendant committed the charged act of possessing methamphetamine. We affirm.
This case arose when the Coquille Police Department received reports of possible drug activity at defendant's [269 Or.App. 852] house. Aware that defendant was on probation for the possession of methamphetamine, Officer Webley and Detective Moore, of the Coos County Sheriff's Office, visited defendant at his home and asked him about the reports. Moore informed defendant that they were concerned about methamphetamine in particular; defendant told the officers that he was on probation after pleading guilty to possessing methamphetamine that " someone else"  had left in his car. Moore and Webley asked defendant if he would consent to a search of his house, and he agreed, telling the officers that " a female friend" might have left some
marijuana in the house. The search ultimately uncovered not marijuana, but the methamphetamine in the jewelry box in defendant's bedroom, and defendant was charged with unlawful possession of that methamphetamine.
Before trial, defendant moved in limine to exclude evidence of a portion of his statement to the officers regarding his prior incident of methamphetamine possession. In particular, defendant sought to exclude evidence that he attributed ownership of the drugs involved in the prior offense to another person. He did so on the ground that the admission of that portion of the statement would be prejudicial, because his defense was that someone else had left the methamphetamine in the jewelry box without his knowledge, and the statement " might tend to make the jury think, 'Well, he's just making another excuse.'" Defendant explained that he was " not objecting to evidence of the prior conviction per se, or that [he] admitted to having such a ...