Submitted July 27, 2017.
Washington County Circuit Court D153348M, D131456M, D142437M;
Kirsten E. Thompson, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Emily P. Seltzer, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jordan R. Silk, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Hadlock, Judge, and Schuman,
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.
Or.App. 269] HADLOCK, J.
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.
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
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.
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
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.
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."
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 ...