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State v. Apodaca

Court of Appeals of Oregon

April 11, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MARIO MANUEL APODACA, Defendant-Appellant.

          Submitted July 27, 2017.

          Washington County Circuit Court D153348M, D131456M, D142437M; Kirsten E. Thompson, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.

         Case Summary: In this consolidated case, defendant appeals from a judgment of conviction for fourth-degree assault constituting domestic violence; he also appeals from judgments finding him in violation of his probation in two other cases, based on his new criminal conduct. Defendant assigns error to the trial court's admission of evidence that he had slapped the victim, his domestic partner, on a previous occasion. The state responds that defendant opened the door to the state adducing the evidence to counter evidence that defendant himself elicited, which could have suggested to the jury that he had not previously assaulted the victim. Held: The trial court did not err. Defendant opened the door to the admission of the evidence to counter or impeach the evidence that defendant had elicited.

         [291 Or.App. 269] HADLOCK, J.

         In this consolidated case, defendant appeals from a judgment of conviction for fourth-degree assault constituting domestic violence; he also appeals from judgments finding him in violation of his probation in two other cases, based on his new criminal conduct. The assault conviction relates to injuries that defendant's domestic partner suffered in the parking lot of a nightclub. It is undisputed that the victim was hurt that night; the only issue at trial was whether defendant caused the injuries by hitting her. On appeal, defendant contends that the trial court erred by admitting evidence that he had slapped the victim on a previous occasion. The state responds that the evidence was admissible to counter evidence that defendant himself elicited, which could have suggested to the jury that he had not previously assaulted the victim. We agree with the state and, accordingly, affirm all three judgments.[1]

         We summarize the testimony relevant to the trial court's decision to admit the disputed evidence and review the trial court's admission of the evidence for errors of law. State v. Stapp, 266 Or.App. 625, 626, 629, 338 P.3d 772.

         Defendant and his domestic partner, M, were together at a nightclub late one night in July 2015. Cowger, a woman who worked at the nightclub, saw a man and M arguing in the parking lot; the man then grabbed M by the hair, swung forcefully, and hit her hard with a closed fist two or three times. After the man stopped hitting her, she yelled, "No, Mario." Mario is defendant's first name. Cowger asked her friends for assistance; when they went to see M, she reported that she had not been hit, but had fallen.

         Officer Black was dispatched to the nightclub. When he arrived, he found M, who was upset, crying, and had blood on her face, shirt, and hands. Black asked M, "Was it your boyfriend?" M became really upset and said [291 Or.App. 270] that she did not want to get her boyfriend in trouble. M gave Black her boyfriend's name, and Black was able to identify him as defendant. Black then asked M again what had happened, and she said that she was assaulted by a different man. Upon being questioned further, M said that she was too drunk and had fallen, injuring herself. However, M told a responding paramedic that "she was punched in the nose, punched in the head, her hair pulled, and then another fist to her head." M did not tell the paramedic who had hit her. At trial, M expressly denied that defendant had hit her. Instead, she explained, during a fight between defendant and somebody else in the parking lot, "somehow I got hit or elbowed or something in the nose, and then I fell to the ground."

         Police officers were unable to locate defendant that night and tried repeatedly to find him over time. Officers eventually obtained an arrest warrant, and Black located and arrested defendant about three months after the July parking-lot incident. Defendant asked what the charges were, and Black told him that he was under arrest for fourth-degree assault, "a domestic violence case." Defendant then told Black that, regarding what had happened in July, "there's no way that *** anybody would believe strippers and pimps that saw the incident." He claimed that some gang members had seen defendant and M arguing, became upset with him, and he ran from the scene. Defendant did not explain how M had sustained her injuries. Another officer, Ganci, transported defendant to jail.

         At trial, on direct examination, Ganci had testified that on the way to the jail, defendant explained to Ganci that, "if he hit [M] that night * * *, that three months later when myself and Officer Black found him, that [M] wouldn't be alive. She'd be dead."

         During cross-examination of Ganci, defense counsel asked questions about the officer's training and experience with domestic-violence cases. A protracted exchange ensued:

"Q. In your experience with these types of situations, are they-tend to be isolated incidents or does there tend to be a pattern that tends to go along with that?
[291 Or.App. 271] "A. What do you mean by that?
"Q. If someone is involved in domestic violence incidents, maybe a victim and a perpetrator, does it tend to be a single isolated incident or can there tend to be patterns and ...

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