Submitted December 20, 2013
Umatilla County Circuit Court. CF110047. Lynn W. Hampton, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. George Ardizzone, filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and De Muniz, Senior Judge.
[270 Or.App. 667] ORTEGA, P. J.
Defendant appeals a judgment convicting him of solicitation to commit aggravated murder. The trial court admitted " other acts" evidence, over his objection, about his earlier conviction for soliciting the murder of the same victim. In defendant's first three assignments of error, he contends that the other acts evidence was inadmissible to prove his intent to solicit the commission of aggravated murder because he never stipulated to the charged conduct and the trial court failed to instruct the jury that it should not consider the evidence unless it first determined that the charged conduct had occurred. Alternatively, he argues that, even if the evidence was admissible under state evidentiary principles, the admission of the other acts evidence deprived him of a fair trial, violating the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We conclude that defendant's first argument is not preserved, and we do not engage in " plain error" review because defendant does not request it. We reject defendant's second argument because the trial court did not abuse its discretion when it concluded that the probative value of the evidence was not outweighed by the potential for unfair prejudice. In his fourth through sixth assignments of error, defendant challenges Oregon's use of nonunanimous jury verdicts. We reject those assignments without further discussion. State v. Bowen, 215 Or.App. 199, 168 P.3d 1208 (2007), adh'd to as modified on recons, 220 Or.App. 380, 185 P.3d 1129, rev den, 345 Or. 415, 197 P.3d 1104 (2008), cert den, 558 U.S. 815, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009). Accordingly, we affirm.
A jury found defendant guilty, so we recite the facts in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). Defendant and the victim began a relationship in 2008 that ended on bad terms and resulted in the victim suing defendant for monetary damages. In late 2009, Deputy Sheriff Burkeen investigated a report by a confidential informant that defendant had solicited the abduction and murder of [270 Or.App. 668] the victim earlier that year. Burkeen's investigation revealed evidence that defendant had discussed with the informant, in cryptic terms, " the package," meeting places, and monetary payment. Defendant paid the informant $13,000, and a search of defendant's car revealed a gun with the serial number removed, a large black cloth bag, and a roll of black garbage bags. Based on that and other evidence uncovered by Burkeen, a jury convicted defendant of attempted murder, attempted aggravated murder, solicitation to commit murder, and additional crimes.
After his conviction, defendant was incarcerated at Two Rivers Correctional Institution (TRCI), and was placed in a cell with Barnes. At TRCI, defendant discussed the victim and her lawsuit against him with Barnes on many occasions. He also showed Barnes financial account statements that purported to show money in an account held jointly by defendant and the victim. Barnes feigned interest in arranging for the victim's murder in exchange for $1,000, and defendant provided him with a list of possible addresses where the victim might be found.
According to Barnes, defendant agreed to pay him to act as the " middleman" with $200 in " canteen purchases" at TRCI and $800 that defendant's son would deposit into Barnes's account. Defendant wrote a letter to his son that instructed him to deposit $800 of defendant's money into Barnes's account. When Barnes realized that defendant was serious about having the victim killed, he contacted authorities at TRCI and requested favorable treatment in exchange for cooperating in the investigation of defendant. Barnes wore a wire and recorded defendant saying that he wanted Barnes to " take [the victim] out," which Barnes understood to mean that defendant wanted the victim killed.
An Oregon State Police detective questioned defendant, who explained that he was paying Barnes for legal work at the prison and that he had not arranged to kill the victim. He claimed that any statements about killing the victim were made in jest, and that Barnes was trying to set him up.
Before trial, the state filed a motion in limine seeking a ruling as to the admissibility of evidence of defendant's prior acts. The state argued that evidence of defendant's [270 Or.App. 669] 2009 conviction for soliciting the murder of the victim was relevant to show defendant's intent to solicit the murder of the same victim in this case. In particular, the state sought to offer (1) the interrogation of defendant in which he discusses facts surrounding his prior convictions, (2) testimony from a detective regarding his investigation in the prior case, and (3) documentation of defendant's prior convictions. The state contended that under OEC 404(3) and State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), the evidence was relevant to show intent. The state acknowledged that the [270 Or.App. 670] evidence was " highly prejudicial" to ...