Argued and Submitted March 10, 2015
Washington County Circuit Court C121424CR. Andrew Erwin, Judge.
Rond Chananudech, 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, Office of Public Defense Services.
David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[272 Or.App. 426] DEVORE, J.
In this criminal case, the issues are whether the trial court erred in admitting evidence of defendant's prior convictions and how the analysis changes after a recent decision of the Oregon Supreme Court, State v. Williams, 357 Or. 1, 346 P.3d 455 (2015). Defendant was charged with first-degree theft, first-degree forgery, and first-degree criminal possession of a forged instrument.
At trial, defendant opposed, under OEC 404(3), the admission of evidence of his prior convictions. The trial court admitted that evidence for the purpose of demonstrating that defendant had knowledge that the checks he had cashed were forged. Following Williams, we conclude that the trial court did not err in admitting the evidence but remand to correct an error in imposing a sentence that exceeded the maximum permitted by law. OAR 213-005-0002(4).
The facts are primarily procedural and are undisputed. Defendant attempted to cash a number of falsified checks made payable to him. He was arrested, questioned, and charged with first-degree theft, ORS 164.055, first-degree forgery, ORS 165.013, and first-degree criminal possession of a forged instrument, ORS 165.022.
At trial, defendant denied knowing that the checks were " bad" and contended that he had been unwittingly induced to cash them. In response, the state tendered direct and indirect evidence of defendant's prior convictions. An officer began to recount his interview with defendant and explain that his knowledge of defendant's forgery convictions influenced how he questioned defendant. The state eventually proffered copies of defendant's judgments of conviction for theft, forgery, identity theft, and possession of a forged instrument.
Defendant objected to the evidence and requested a hearing to determine admissibility under State v. Johns, 301 Or. 535, 555, 725 P.2d 312 (1986) (setting forth case-by-case considerations for the admissibility of prior bad acts evidence). He argued that, under Johns, the state had not established [272 Or.App. 427] the similarity between defendant's prior convictions and the charges at issue. He added that, under OEC 403, the evidence should not be admissible, because the " prejudice substantially outweighs any small bit of probative value."
The trial court deemed a Johns hearing unnecessary and ruled that the evidence of defendant's prior convictions was admissible for the purpose of establishing " guilty knowledge." The trial court considered OEC 403, explaining:
" The second part of it is the weighing issue, and I want to be clear that I have done the weighing, and that the probative value is not substantially outweighed by unfair prejudice. * * * Because of the difficulty in proving knowledge, what's going on in somebody's mind is so difficult, the evidence is necessary in order to establish that particular--or to disprove that particular position. And since the state has to prove that it ...