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State v. Hollingsworth

Court of Appeals of Oregon

February 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHNNY D. HOLLINGSWORTH, aka Johnny Hollingsworth, Defendant-Appellant.

          Argued and submitted June 29, 2017

         Multnomah County Circuit Court 15CR02845 Jean Kerr Maurer, Judge.

          Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds, Senior Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction for six counts of recklessly endangering another person, ORS 163.195, and assigns error to the trial court's ruling admitting evidence of defendant's prior 9-1-1 calls and related police encounters.

         Held:

         The trial court erred in admitting the evidence, as it was not relevant to defendant's self-defense claim because it was not probative of the circumstances that defendant confronted that night. The standard for assessing the reasonableness of a defendant's belief about the need for force, or the extent of force necessary, is objective and does not turn on the particular characteristics of an individual defendant.

         Convictions for recklessly endangering another person reversed and remanded; otherwise affirmed.

         [290 Or. 122] LAGESEN, J.

         Believing an intruder to be in his apartment, defendant fired his gun. The bullet passed through the wall into the neighboring apartment where a family of six was sleeping. The bullet, fortunately, did not hit anyone, but defendant's conduct led to seven charges against him: one count of unlawful use of a weapon (UUW), ORS 166.220, and six counts of recklessly endangering another person, ORS 163.195.[1] At trial, defendant claimed that he had fired his gun in self-defense, aiming it at the intruder in his apartment in defense of his teenage daughter and himself. The jury acquitted defendant of the UUW charge, but convicted him of the reckless endangerment charges.

         On appeal, defendant raises four assignments of evidentiary error: (1) the trial court erred by admitting evidence related to the bullet's trajectory without requiring the state to demonstrate that the evidence met the standards for admission of scientific evidence under OEC 702 and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995); (2) the trial court erred in admitting evidence of defendant's past interactions with the police as relevant to the issue of self-defense; (3) the trial court erred in admitting evidence of defendant's 9-1-1 phone calls that led to his past interactions with the police as relevant to the issue of self-defense; and (4) the trial court erroneously permitted the prosecutor to exceed the scope of direct examination on cross-examination of defendant. For the reasons that follow, we conclude that the trial court erred in admitting the evidence of defendant's prior 9-1-1 calls and related police encounters and that the error is not harmless. We therefore reverse and remand without reaching defendant's other claims of evidentiary error.

         The facts pertinent to the issue before us are procedural and not in dispute. Before trial, defendant filed notice of intent to rely on the defense of self-defense under ORS 161.209. The state then moved in limine to introduce evidence of "other bad acts" of defendant to counter defendant's claim of self-defense. That evidence consisted of tapes of defendant's four calls to 9-1-1 in the four-month period [290 Or. 123] preceding the incident at issue and testimony from Officer Frutiger about his contacts with defendant in response to those calls. According to the state, the evidence tended to demonstrate that defendant overreacts to the conduct of other people in his apartment complex. The state asserted that the evidence was relevant under State v. Johns,301 Or. 535, 725 P.2d 312 (1986), because it involved prior similar incidents that, in the state's view, would refute ...


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