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State v. Sawyer

Court of Appeals of Oregon

April 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
KENT CRAIG SAWYER, Defendant-Appellant.

          Submitted February 26, 2018

          Deschutes County Circuit Court 15 CR 51017; A 16 2 63 8 A. Michael Adler, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for three counts of second-degree criminal mischief for using a BB gun to shoot out windows of his former landlords and neighbors, following his eviction from his rental home. Over defendant's relevance and OEC 403 objections, the trial court admitted 15 photographs depicting the poor condition in which defendant left his rental home after he was evicted. Defendant assigns error to the admission of those photographs, arguing that the trial court abused its discretion by admitting them without making the record required by State v. Mayfeld, 302 Or. 631, 733 P.2d 438 (1987). Held: The trial court erred because it failed to create a record that satisfied Mayfeld when it overruled defendant's OEC 403 objection. Nothing in the record indicated that the trial court consciously conducted the required balancing, and the record did not permit meaningful review of the trial court's ruling. On remand, the trial court must conduct on-the-record OEC 403 balancing in a manner that comports with Mayfeld and such other proceedings that may be required as a result of that balancing.

         Reversed and remanded.

          [291 Or.App. 103] LAGESEN, P. J.

         As defendant was moving from his rental home after his eviction, defendant's former landlords, the Ms, found that their car window had been shot out with a BB gun. Other former neighbors, the Bs, found that their bedroom window had been shot out by a BB gun. Two months later, another of defendant's former neighbors, T, discovered that his car windows had been shot out with a BB gun not long after a chance encounter with defendant. Believing defendant to be the culprit in each instance, the state charged him with three counts of second-degree criminal mischief, ORS 164.354. At trial, over relevance and OEC 403 objections by defendant, the court admitted 15 photographs depicting the poor condition in which defendant left the rental home when he vacated it. The jury convicted defendant on all counts. On appeal, he assigns error to the trial court's admission of the objected-to photographs, contending that the trial court abused its discretion by admitting the evidence without making the record required by State v. May field, 302 Or. 631, 733 P.2d 438 (1987). On review for legal error, State v. Shaw, 338 Or. 586, 615, 113 P.3d 898 (2005), we agree. We therefore reverse and remand for the trial court to conduct its OEC 403 balancing in a manner that comports with Mayfield, and for such other proceedings that may be required as a result of that exercise.

         As noted, the evidence at issue consists of 15 photographs taken of defendant's former rental home on the date that he moved out. The photographs depict a range of different things. Seven of the photographs fairly can be described as showing that defendant left the house in disarray, and with a fair amount of debris and garbage. Three of the photographs appear to depict faulty electrical wiring. One of the photographs is of defendant's motor home. The other four depict damage to the home's carpet, the garage floor, and a window.

         At trial, defendant objected to the admission of the photographs, initially arguing that the fact that he left his rental home a mess was not relevant to anything at issue in the case. The trial court permitted defendant to examine defendant's former landlord about the content of the [291 Or.App. 104] photographs to develop the record in support of his objection. Following that examination, defendant renewed his relevance objection. In addition, defendant argued that, even if the trial court determined that the photographs were relevant, they should be excluded as "unfairly prejudic [ial]." The court then asked the prosecutor to "state [his] position again as to why they should be received." The prosecutor responded that the evidence was relevant for three purposes: to show defendant's plan, motive, and identity:

"Your honor, again this goes towards the plan of destruction of property in retaliation. So we have motive as a reason, other than just propensity under 404, and also identity. And also it goes to the Defendant's plan to destroy the property."

         Having heard the prosecutor's explanation of why the pictures were relevant, the court overruled defendant's objection: "All right. The exhibits are, the objection's overruled."

         On appeal, defendant assigns error to that ruling.[1] He argues that the trial court abused its discretion by admitting the evidence without creating the record required by May field. He further asserts that, if the trial court's record comports with Mayfield, it demonstrates that the court abused its discretion in concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The state responds that defendant did not preserve his argument that the trial court failed to develop the record in the manner required by Mayfield because defendant did not specifically alert the court of the need for a more developed record. The state further asserts that the ...


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