Submitted January 20, 2016
County Circuit Court 13CR0973; Richard L. Barron, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Eric Johansen, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, fled the brief for respondent.
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
appeals a judgment of conviction for murder for intentionally
shooting the victim. At trial, defendant conceded that he
shot the victim but contended that he had not done so
intentionally. The state offered, and the trial court
admitted, prior acts evidence related to defendant's
hostile motive toward the victim in order to show that he
shot her intentionally. On appeal, defendant challenges the
admission of the prior acts evidence, arguing that the
evidence should not have been admitted under OEC 404(3),
because it is not relevant for any purpose other than to show
defendant's propensity to engage in bad conduct,
contending that it is irrelevant to his intent because it
does not satisfy the multi-factor test from State v.
Johns, 301 Or 535, 725 P.2d 3112 (1986). Defendant also
argues that the court erred in admitting the evidence without
balancing its probative value against the danger for unfair
prejudice under OEC 403. The state responds that the evidence
is relevant to defendant's hostile motive toward the
victim, which, in turn, is probative of his intent. The state
further argues that the Johns test does not apply to hostile
motive evidence. Finally, the state contends that
defendant's OEC 403 argument is unpreserved.
Held: The Johns test did not apply to the prior acts
evidence in this case, because Johns applies only to evidence
offered under the doctrine of chances, and the evidence in
this case was not offered under a doctrine of chances theory.
The prior acts evidence was relevant and admissible to prove
defendant's hostile motive toward the victim, which was
also probative of his intent when he shot her. Additionally,
defendant failed to preserve his OEC 403 challenge.
appeals a judgment of conviction for murder, ORS 163.115, for
intentionally shooting the victim, his wife, raising five
assignments of error. We write to address defendant's
first and second assignments of error, in which he contends
that the trial court erroneously admitted prior acts evidence
that, in the week before the crime, defendant (1) angrily
yelled at the victim when she had locked him out of their
house during a dispute and (2) slapped the victim during
another dispute. Defendant argues that the evidence should
not have been admitted under OEC 404(3), because it was not
relevant for any purpose other than to show defendant's
propensity to engage in bad conduct. The state responds that
the evidence was properly admitted to show defendant's
hostile motive and his intent to shoot the victim. We affirm.
evaluate the denial of a defendant's motion to exclude
evidence of other acts in light of the record made before the
trial court when it [made its decision]." State v.
Wright, 283 Or.App. 160, 162, 387 P.3d 405 (2016)
(brackets in original; internal quotation marks omitted). We
review the trial court's ruling on the relevance of
evidence for errors of law. State v. Titus. 328 Or
475, 481, 982 P.2d 1133 (1999).
afternoon, defendant called his friends Juanita and Otto
Vernon Epping-Fate on the phone. Defendant sounded
distressed, and the Epping-Fates decided to go to
defendant's house to make sure he was okay. When they
arrived, defendant met them at the door, and they went inside
and sat down on the couch in the living room. The victim was
in the living room with defendant.
was anxious and nervous. He walked around the house,
periodically sitting down but almost immediately getting back
up, and, when Juanita spoke to him, he would repeatedly say
the last word she said back to her. The Epping-Fates prayed
with defendant, which calmed him down for a moment, but he
soon became agitated again. Juanita, who was a retired nurse
and had worked in a mental health unit, was concerned that
defendant was having a medical or mental health crisis and
asked to take him to the hospital.
asked what they would "do to [him]" at the
hospital, and, after Juanita assured him that they would help
him to settle down, he agreed to go. The victim, intending to
go with them, said that she was going to get her coat, purse,
and shoes and left the living room and went through the
kitchen into the bedroom. After she left, defendant sat down
at a desk. When the victim exited the bedroom a few minutes
later, Juanita noticed that defendant was holding a gun.
Still sitting at the desk, defendant fired a shot between his
feet. Juanita called to Otto that they should go, and she ran
out of the house. As she was leaving, she saw defendant raise
did not leave the house with Juanita, and he saw defendant
fire the gun a second time. After defendant fired the second
shot, he told Otto that he "should go now." Otto
could not see the victim from where he was sitting, and he
asked defendant if she was okay. Defendant said that she was
fine, and Otto left and ...