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State v. Parker

Court of Appeals of Oregon

June 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ALLAN JAMES PARKER, Defendant-Appellant.

          Argued and submitted May 31, 2016

         Clackamas County Circuit Court CR1400723 Heather Karabeika, Judge.

          Erik M. Blumenthal argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey K. Detweiler, Deputy Public Defender, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge. [*]

         Case Summary: Defendant appeals a judgment of conviction for unlawful use of a weapon, ORS 166.220, three counts of felon in possession of a frearm, ORS 166.270, two counts of coercion, ORS 163.275, and two counts of assault in the fourth degree constituting domestic violence, ORS 163.160, assigning error to the trial court's admission into evidence of a certifed conviction showing that, in 2006, defendant was convicted of unlawful delivery of methamphetamine. Held: In proving whether defendant was a felon, the name of defendant's crime of conviction was devoid of any probative value and carried a substantial risk of prejudice. The trial court abused its discretion in rejecting defendant's argument that redaction of the name of his prior conviction was necessary to avoid unfair prejudice and, consequently, admitting the certifed judgment of conviction that disclosed the name of his prior conviction.

         Reversed and remanded.

         [285 Or.App. 778] TOOKEY, J.

         Defendant appeals a judgment of conviction for unlawful use of a weapon, ORS 166.220, three counts of felon in possession of a firearm, ORS 166.270, two counts of coercion, ORS 163.275, and two counts of assault in the fourth degree constituting domestic violence, ORS 163.160. Defendant assigns error to the trial court's admission into evidence of a certified judgment of conviction showing that, in 2006, defendant was convicted of unlawful delivery of methamphetamine. For the reasons that follow, we reverse and remand.

         Before trial, for the purpose of proving that he was a felon in possession of a firearm, ORS 166.270, defendant offered to acknowledge that he had previously been convicted of a felony crime in the form of a "stipulation."[1]Defendant argued that the type of felony for which he was previously convicted-delivery of methamphetamine-is "irrelevant" and "unduly prejudicial in a case like this" and objected to the state offering a certified judgment of conviction that disclosed that the conviction was for the delivery of methamphetamine, "given * * * society's general feelings about methamphetamine addiction." Defendant contended that the trial court had to exclude evidence of the name of the crime of which he had been convicted, stating that, if the court were to admit the evidence in the form of the certified judgment of conviction, the name of the crime of conviction "should be redacted, because it addresses prior bad acts, " and that "the only reason [the state] would introduce the type of convictions, [is because] they hope to put some of that stink on" defendant.

         The state argued that the trial court had the discretion to accept defendant's stipulation or to accept the [285 Or.App. 779] certified judgment of conviction that disclosed that the conviction was for delivery of methamphetamine because "the state of Oregon does not have a statute like they do for felony DUII, which specifically says that the defense can stipulate to the prior conviction."[2] The state did not argue that the name of the crime was independently relevant, but contended that the name of the crime was not unfairly prejudicial because "the crime has nothing to do with what * * * is alleged in this case." The state continued, stating that it "might be in a different position if this were another firearm case or another domestic violence case where that might be overly prejudicial."

         The trial court agreed with the state. It explained that, "[i]f the state wants to offer evidence as to the exact nature of the conviction, I don't think that's a problem" because "the nature of the charges are entirely different than the conviction." Based on that reasoning, the court overruled defendant's objection to the admission of the certified judgment of conviction showing that defendant was convicted for delivery of methamphetamine. The court required the state to redact information other than the name of the crime of conviction before it admitted the certified judgment of conviction as evidence that defendant had been previously convicted of a felony. Following a jury trial, defendant was convicted of the multiple crimes that we noted at the outset of this opinion.

         On appeal, defendant first argues that, under State v. Hess. 342 Or. 647, 651, 159 P.3d 309 (2007), his "attempt to stipulate constituted a judicial admission that did not require the state's consent, and the trial court was required to accept it." Alternatively, relying on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) and State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987), defendant argues that the trial court erred in admitting the certified [285 Or.App. 780] judgment of conviction showing the name of the crime of conviction because any "probative value of evidence that defendant was previously convicted of unlawful delivery of methamphetamine was substantially outweighed by unfair prejudice" under OEC 403.

         The state disagrees that this situation is controlled by Hess, noting that the trial court was not required to accept defendant's unilateral stipulation because he did not comply with the requirements of ORS 136.433.[3] Additionally, the state disagrees with defendant's view that OEC 403 required exclusion of the name of defendant's crime of conviction because, in the state's view, OEC 404(4) prescribes a narrower, "due process balancing" test that requires evidence to violate the Due Process Clause before it may be excluded from a criminal prosecution. Thus, on appeal, the state asks us to review whether the introduction of the certified judgment of conviction that disclosed the name of defendant's previous felony conviction was so unfairly prejudicial as to "render the trial fundamentally unfair." The state does not independently argue that the evidence would nevertheless be admissible under a "traditional" OEC 403 analysis.

         Because, as noted above, the record might have developed differently if the state had raised the requirements of ORS 136.433 in the trial court, we do not consider the implications, if any, of defendant's failure to comply with the procedures set forth in that statute. Further, we agree with the parties that, in the absence of a stipulation of the sort envisioned by ORS 136.433, defendant's argument that [285 Or.App. 781] the name of the crime of conviction should be excluded as overly prejudicial required the court to engage in some kind of balancing. See Hess, 342 Or at 661 ("The rules of evidence govern the presentation of all factual matters to the jury during a criminal trial, including facts concerning [a] defendant's prior convictions."); ORS 136.433(1) ("[T]he state has the burden of proving the previous conviction unless the defendant stipulates to that fact."). As we will explain, we conclude the trial court abused its discretion in rejecting defendant's argument that redaction of the ...


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