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State v. Tena

Supreme Court of Oregon

March 1, 2018

STATE OF OREGON, Respondent on Review,
v.
ISRAEL OVALLE TENA, JR., Petitioner on Review.

          Argued and submitted June 15, 2017

         On review from the Court of Appeals, CC 201304366, CA A154735[*]

          John Evans, Deputy Public Defender, Salem, argued the cause and fled the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

          Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Margaret Garvin, Portland, fled the brief on behalf of amici curiae The National Crime Victim Law Institute; Oregon Crime Victims Law Center; and Oregon Coalition Against Domestic and Sexual Violence. Also on the brief was William McMillen.

          Before Balmer, Chief Justice, and Kistler, Walters, and Nakamoto, Justices, Landau, Senior Justice pro tempore, and Tookey, Judge of the Court of Appeals, Justice pro tempore. [**]

         [362 Or. 515]Case Summary:

         Defendant, who was convicted of fourth-degree assault constituting domestic violence, challenged the admission of evidence that he had previously assaulted two other intimate partners. The state argued that the evidence was admissible under OEC 404(3) to demonstrate defendant's hostile motive and intent. The trial court admitted the evidence, and the Court of Appeals affirmed.

         Held:

         The evidence of defendant's prior assaults on intimate partners was not admissible to prove either hostile motive or intent. Evidence of a defendant's prior hostile acts toward a victim or toward a class of persons to which the victim belongs may be relevant to prove the defendant's motive in later assaulting the victim. For prior acts to be admissible to prove motive, the state must show some substantial connecting link between the prior acts and the charged act. The state asserted in this case that the substantial connecting link was that acts showed that defendant develops hostility toward intimate partners when his control over them is threatened. The court explained that that is not the sort of substantial connecting link required to establish admissibility under a hostile motive theory. If there is insufficient evidence that the other acts against those persons were motivated by the fact that they were members of a given class, there is no basis for establishing the required substantial connecting link between the acts against them and those against the victim. In this case, the evidence indicated that the motives for defendant's assaults varied, as one assault involved a disagreement about childcare, another involved jealousy, and the present case involved a dispute about the victim's failure to answer defendant's messages and her drinking. The court also concluded that the evidence was inadmissible to prove intend under a doctrine of chances theory. That theory applies only to evidence offered to establish whether an act that a defendant performed was performed intentionally, that is, to counter a defendant's claim that he or she performed the act but did so accidentally rather than intentionally. In this case, defendant did not contend that he injured the victim accidentally, but instead presented evidence that he did not injure the victim at all, and that the victim injured herself. The doctrine of chances theory of admissibility is inapplicable under those circumstances.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded for further proceedings consistent with this opinion.

         [362 Or. 516] LANDAU, S. J.

         In this criminal case, defendant was convicted of felony fourth-degree assault constituting domestic violence. ORS 132.586; ORS 163.160(3)(c). On appeal, he challenged the admission of evidence that he had previously assaulted two other intimate partners within the last 14 years. The state argued that the evidence was admissible to prove intent, and the Court of Appeals agreed. State v. Tena, 281 Or.App. 57, 384 P.3d 521 (2016). We conclude that the evidence of the two prior incidents of domestic violence were impermissible character evidence. We therefore reverse the decision of the Court of Appeals.

         The relevant facts-at least for the purposes of appeal-are not in dispute. Defendant lived with the victim, who was his girlfriend, and her step-sister. Drinking alcohol was prohibited at that residence. In August 2011, he came home and was upset because the victim had failed to respond to his text messages quickly enough. He demanded to know whether she had been drinking. Before she could answer, defendant grabbed her hair and punched her in the face repeatedly until she fell. Defendant lifted the victim by the throat and threw her to the floor again. The victim yelled for defendant to stop, but defendant punched her in the face several more times. The victim's step-sister called 9-1-1, and while she was on the phone, defendant left. Police arrived, and the victim told them that defendant had assaulted her.

         The state charged defendant with fourth-degree assault. Because defendant previously had been convicted of at least three domestic violence assaults, the assault was charged as a felony. ORS 163.160(3)(c).

         Defendant's theory of the case was that he had not assaulted the victim at all and that she had accidentally injured herself. And, by the time of trial, the victim had recanted her report to the police. She testified that she had tripped during a ...


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