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State v. Lipka

Court of Appeals of Oregon

January 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSHUA SCOTT LIPKA, aka Joshua Scott Lipka, Sr., Defendant-Appellant.

          Argued and submitted March 9, 2017

         Multnomah County Circuit Court 14CR11535 Michael A. Greenlick, Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*]

         Case Summary: Defendant appeals from a judgment of conviction for resisting arrest, ORS 162.315, assigning error to the trial court's ruling admitting evidence that defendant repeatedly used the word "nigger" when speaking to a police officer. Defendant argues that the evidence should have been excluded under OEC 403 because its probative value was substantially outweighed by the danger of unfair prejudice. Held: The trial court did not err by admitting the evidence. Under the circumstances presented in this case, it was within the trial court's discretion to conclude that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.

         Affirmed.

         [289 Or.App. 830] POWERS, J.

         Defendant appeals a judgment of conviction for resisting arrest, ORS 162.315, assigning error to the trial court's ruling admitting evidence that defendant repeatedly used the word "nigger" when speaking to a police officer. Defendant argues that the evidence should have been excluded under OEC 403[1] because its probative value to the charge of resisting arrest was substantially outweighed by the danger of unfair prejudice. We affirm.[2]

         We review a trial court's evidentiary ruling "in light of the record made before the trial court when it issued the order, not the trial record as it may have developed at some later point." State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012). We review the trial court's ultimate determination under OEC 403 for abuse of discretion. State v. Shaw, 338 Or. 586, 614-15, 113 P.3d 898 (2005).

         The charges against defendant arose from a physical altercation with Officer Huntinghouse that occurred as Huntinghouse took defendant into custody for an unrelated offense. During the altercation, they wrestled, and Huntinghouse used his Taser and pepper spray. Defendant was charged with assaulting a public safety officer, ORS 163.208, and resisting arrest, ORS 162.315.[3]

         Before trial, the court heard arguments about the admissibility of post-arrest statements that defendant made while a different police officer, Officer Saunders, drove him to jail.[4] The state sought to offer Saunders's testimony that [289 Or.App. 831] defendant-who is white-called Saunders-who is black- a "nigger." The trial court was also informed that Saunders would testify that defendant said that he "hated the police"; that he made numerous other unsolicited statements disparaging police; that he said that he had "kicked" Huntinghouse's "ass" and would do the same to Saunders; and that he made "continuing statements" using the phrase "fucking nigger, " including that Huntinghouse-who is not black-is a "nigger." According to the state, Saunders also heard defendant later explain that he uses that racial epithet or racial slur to pertain, not to skin color, but rather "to the behavior of a person." The state argued that defendant's statements, including his use of the racial slur, were probative of his disdain for police and state of mind shortly after his arrest, which helped establish his motivations and intent for the charged offenses.

         Defendant argued that evidence of his statements that used the word "nigger" should be excluded under OEC 403. He contended that "nigger" is one of the most inflammatory words in the English language and that its probative value does not ...


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