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State v. Johnson

Court of Appeals of Oregon

November 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JEFFREY BRIAN JOHNSON, Defendant-Appellant.

          Argued and submitted April 26, 2016

         Washington County Circuit Court C120228CR Thomas W. Kohl, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for intentional murder with a frearm, raising two assignments of error. First, defendant challenges the trial court's exclusion of expert testimony that defendant sought to introduce to support his defense of extreme emotional disturbance. Second, defendant assigns error under OEC 403 to the trial court's decision to admit autopsy photographs in conjunction with testimony by a medical examiner about the autopsy. Defendant contends that the trial court erred by failing to create a record that refected that the court had engaged in the balancing process required under OEC 403 and State v. Mayfeld, 302 Or. 631, 733 P.2d 438 (1987), before deciding to admit the autopsy photographs as evidence. He further contends that the trial court abused its discretion under OEC 403 by admitting the autopsy photographs because their probative value was substantially outweighed by the danger of unfair prejudice to defendant. Held: Defendant did not preserve his frst assignment of error because the arguments made by defendant in the trial court and those raised on appeal implicate materially different legal issues.

         [288 Or. 529] Second, as the record demonstrates, the trial court did not abuse its discretion by admitting the autopsy photographs.

         Affrmed.

         [288 Or. 530] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for intentional murder with a firearm, ORS 163.115, ORS 161.610, raising two assignments of error.[1] First, defendant challenges the trial court's exclusion of expert testimony about defendant's personality traits, which defendant sought to introduce to support his defense of extreme emotional disturbance (EED), ORS 163.135. We reject defendant's first assignment of error because we conclude that he failed to preserve it. Second, defendant assigns error under OEC 403 to the trial court's decision to admit autopsy photographs in conjunction with testimony by a medical examiner about the autopsy. Defendant contends that the trial court erred by failing to create a record that reflected that the court had engaged in the balancing process required under OEC 403 and State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987), before deciding to admit the autopsy photographs as evidence. He further contends that the trial court abused its discretion under OEC 403 by admitting the autopsy photographs because their probative value was substantially outweighed by the danger of unfair prejudice to defendant. We conclude that the record demonstrates that the trial court engaged in the required OEC 403 balancing and that the trial court did not err by admitting the photographs. Accordingly, we affirm.

         The relevant facts are undisputed. Defendant killed the victim, Johnson, [2] in the course of a custody dispute over R, who is the son of defendant's daughter, M, and Johnson. Before R was born, Johnson and M had lived with defendant. However, Johnson moved from defendant's home after R's birth and had relatively little involvement with R over the next two years.

         In early 2011, when R was roughly two years old, Johnson initiated court proceedings to secure parenting time with R. That action led to an increasingly contentious relationship between Johnson and M. A few months after [288 Or. 531] Johnson had initiated the court proceeding, he was convicted of telephonic harassment of M. Johnson obtained court-ordered parenting time with R in September 2011. In the beginning of October 2011, Johnson and M had a disagreement about R that escalated into Johnson pushing M, which defendant and R witnessed. A few days later, M obtained a court restraining order against Johnson under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. When the court issued the restraining order, it also ordered that Johnson could continue to have parenting time with R but that defendant would arrange that time so that M would not have to have any contact with Johnson. As a result of having to coordinate Johnson's parenting time, defendant and Johnson exchanged email and text messages with each other.

         Over the next couple of months, defendant became increasingly emotional and fearful about Johnson's involvement in R's life. Defendant told Johnson through texts that Johnson was harming R, and he offered Johnson money to abandon Johnson's parental rights. During that time, Johnson obtained dismissal of M's FAPA restraining order, which led defendant to believe that the court did not appreciate the seriousness of the situation, and that defendant had to intervene to protect his family. In November 2011, defendant bought a handgun. At the end of December 2011, Johnson and M had a disagreement during Johnson's scheduled time with R, which resulted in a shoving match between Johnson and M and a call to the police. However, no ...


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