Argued and Submitted June 18, 2014
201204868. Lane County Circuit Court. Charles D. Carlson, Judge.
David O. Ferry, Senior Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With him on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Sercombe, Judge, and Wollheim, Senior Judge.[*]
[272 Or.App. 357] SERCOMBE, J.
Defendant appeals his convictions for various property crimes, including two counts of identity theft, and crimes associated with flight from police. In his opening brief, defendant argues that, under OEC 404(3) and
State v. Leistiko, 352 Or. 172, 282 P.3d 857, modified on recons, 352 Or. 622, 292 P.3d 522 (2012), the trial court erred in admitting evidence of his nine prior identity theft convictions to prove that he had an intent " to deceive or to defraud" in this case, because he did not concede that he " possesse[d] * * * the personal identification[s] of [others]," ORS 165.800(1), and the court did not otherwise instruct the jury that it first had to find that defendant possessed the identifications before it considered the identity theft convictions as evidence of intent. After oral argument, the Supreme Court, in State v. Williams, 357 Or. 1, 15, 346 P.3d 455 (2015), concluded that OEC 404(4) " supersede[s] OEC 404(3) in criminal cases, except * * * as otherwise provided by the state or federal constitutions."  The court further concluded that, under OEC 404(4), evidence of a criminal defendant's other crimes, wrongs, or acts may be admitted so long as (1) it is relevant under OEC 401, and (2) as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, " a trial court determines whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403." Id. at 24. In a supplemental brief, [272 Or.App. 358] defendant maintains that, under the framework announced in Williams, the challenged evidence was inadmissible without a Leistiko jury instruction. As we explain below, we conclude that defendant's argument under Leistiko --a decision announced after his trial--was unpreserved and, given the " significant change in the law" announced in Williams, 357 Or. at 20, defendant's claim that the trial court was required to give the Leistiko instruction to properly admit evidence of his identity theft convictions is not cognizable as plain error. We further conclude that the trial court erred in modifying defendant's sentence outside his presence, because the court denied defendant " earned time" on each felony sentence in the written judgment, even though the court had originally announced that he was eligible for earned time after the first 144 months of his sentence. We therefore remand for resentencing and otherwise affirm.
We set out the pertinent facts, which were undisputed at trial, except as noted. Just after 7:00 a.m. on March 7, 2012, the owner of a truck, Woolley, reported to police that the truck had been stolen from his driveway in Eugene. Woolley had discovered that the truck was gone after one of his employees called and said that he had seen someone other than Woolley driving the truck in a convenience store parking lot. At trial, the employee identified defendant as the driver of the stolen truck.
An officer soon spotted the truck in a restaurant parking lot. After the officer pulled into the parking lot, defendant drove over a curb and sped away. (The officer testified that defendant drove away after the officer activated his lights and siren, but defendant testified that he never saw lights or a siren and thought he was being chased by someone who he recently had fought in a bar.) The officer observed defendant stop, drop off a female passenger, who was never identified, and speed away again.
[272 Or.App. 359] As defendant continued to flee, he reached speeds of over 70 miles per hour.
At one point, he passed a " do not enter" sign and drove onto the Beltline Highway against traffic. Defendant passed several other drivers and at least one person walking along the road. Eventually, he ended up on a narrow, dead-end street, with the same officer in pursuit.
After he reached the dead-end street, defendant drove the truck into two parked minivans, and one of the minivans hit a nearby house. Defendant abandoned the truck, proceeded on foot, and lost the jacket he was wearing as he ran. (The officer testified that he told defendant that he was under arrest, yelled for him to stop, and grabbed at the jacket, which slipped off as defendant ran; defendant denied that any of that occurred.) Woolley's loaded handgun was found in the jacket pocket. Defendant was apprehended a short time later, just a few blocks away, by other officers who had been setting up a perimeter.
It was later discovered that the property found in the truck matched property missing from two cars near where the truck had been stolen: A GPS unit, other property, and a wallet containing the personal identifications of a husband and wife were missing from one car; a car charger, mailbox key, change, and garage door opener were missing from another. A nearby garage--the one that matched the opener--was found open, and a $100 Wal-Mart gift card, car charger, and sunglasses were missing from a car parked in the garage. In the same neighborhood, a truck and trailer ...