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State v. Hagner

Court of Appeals of Oregon

April 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
WAYNE RAYMOND HAGNER, Defendant-Appellant.

          Submitted January 20, 2016

         Coos County Circuit Court 13CR0973; Richard L. Barron, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary:

         Defendant 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.

          SERCOMBE, P.J.

         Defendant 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.[1] Defendant argues that the evidence should not have been admitted under OEC 404(3), [2]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.

         "We 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).

         One 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.

         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.

         Defendant 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 the gun.

         Otto 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 ...


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