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State v. Rice

Court of Appeals of Oregon

December 13, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ALEX VERLYN RICE, Defendant-Appellant.

          Argued and submitted November 17, 2015

         Benton County Circuit Court DV1320401, Locke A. Williams, Judge.

          Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant.

          With him on the opening brief was Peter Gartlan, Chief Defender.

          With him on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent.

          With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Allen, Judge pro tempore.

         Case Summary:

         In this criminal case, defendant appeals a judgment convicting him of six crimes arising from a physical altercation with his girlfriend. He argues that the trial court erred in admitting testimony from two previous girlfriends that he engaged in threatening and assaultive conduct against them.

         Held: Under existing case law that defendant does not challenge, the evidence of defendant's conduct against his two previous girlfriends was admissible to show that defendant tended to act violently against his girlfriends.

         [289 Or. 283] HADLOCK, C. J.

         In this criminal case, defendant appeals a judgment convicting him of six crimes arising from a physical altercation with his girlfriend.[1] He argues that the trial court erred in admitting testimony from two previous girlfriends that he engaged in threatening and assaultive conduct against them. For the reasons explained below, we affirm.

         We evaluate a trial court's decision to admit evidence of a defendant's "other crimes, wrongs or acts, " OEC 404(3), "in light of the record made before the trial court when it made its decision."[2] State v. Wright. 283 Or.App. 160, 162, [289 Or. 284] 387 P.3d 405 (2016) (internal quotation marks and brackets omitted). In this case, the state moved before trial for a ruling on the admissibility of defendant's prior acts. The state presented a detailed account of the facts of this case and the testimony it sought to present. Because, as explained below, detailed recital of the facts is not necessary, we present only a general outline. The charged crimes took place at the victim's apartment. Defendant threatened and assaulted the victim repeatedly, prevented her from leaving her apartment, and broke her cell phone by throwing it against the wall because he was afraid that she would call the police.

         The evidence of prior acts that the state sought to introduce involved S and K, two previous girlfriends of defendant. The state recounted several incidents of violence against S and K, some of which resulted in convictions and some of which did not. As explained below, the trial court allowed evidence only about the incidents that resulted in convictions. Those incidents are as follows: Defendant stayed in K's vehicle after she repeatedly told him to get out and he took K's cell phone to prevent her from calling the police; he also turned the steering wheel while K was driving, causing the car to go into the other lane of traffic. For that conduct, defendant was convicted of interfering with making a report. As to S, defendant accused her of cheating on him and punched her in the head. Defendant was convicted of assaulting S.

         The state argued that the evidence of that conduct by defendant against S and K was admissible under OEC 404(3) for three reasons: to show intent under the doctrine-of-chances theory set out in State v. Johns,301 Or. 535, 725 P.2d 312 (1986); to show intent on a theory of "hostile motive" under, among other cases, State v. Moen,309 Or. 45, 786 P.2d 111 (1990), and State v. Yong.206 Or.App. 522, 138 P.3d 37, rev den,342 Or. 117 (2006); and to show "motive and plan" [289 Or. 285] for ...


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