and submitted April 26, 2017
Washington County Circuit Court C150812CR Thomas W. Kohl,
Kristin A. Carveth, Deputy Public Defender, argued the cause
for appellant. With her on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Offce of Public
P. Robertson, Assistant Attorney General, argued the cause
for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
DeHoog, Presiding Judge, and Aoyagi, Judge, and Haselton,
Senior Judge. [*]
Summary: Defendant appeals a judgment of conviction for two
counts of unlawful use of a weapon, ORS 166.220(1)(a); two
counts of menacing, ORS 163.190; and one count of interfering
with a peace officer, ORS 162.247. Defendant assigns error to
the trial court's ruling under OEC 403 admitting evidence
that the police stopped defendant because he had been seen
masturbating in front of a children's ballet studio.
Held: The trial court did not abuse its discretion
in admitting the evidence.
Or.App. 489] DEHOOG, P. J.
appeals a judgment of conviction entered after a jury found
him guilty of two counts of unlawful use of a weapon, two
counts of menacing, and one count of interfering with a peace
officer. Defendant assigns error to the trial court's
ruling under OEC 403 admitting evidence that the police
stopped defendant because he had been seen masturbating in
front of a children's ballet studio. Defendant argues
that the highly prejudicial nature of that evidence
outweighed any minimal probative value, and that the trial
court therefore abused its discretion in admitting the
evidence. The state counters that the evidence was highly
probative regarding the context of the police response and
that the trial court did not abuse its discretion in
concluding that the probative value was not substantially
outweighed by any prejudicial effect. We conclude that the
trial court's decision admitting the evidence over
defendant's OEC 403 objection was not an abuse of
discretion. We therefore affirm.
trial, the state presented the following evidence. On the day
in question, a ballet teacher, Tosh, was teaching a class for
children ages seven to nine when she saw defendant outside,
walking up to the large windows looking into the dance
studio. Tosh saw defendant completely face the window and
reach his hand into his pants. Initially, Tosh thought
defendant was merely scratching himself. Tosh then realized
that defendant had a "full erection" and "was
masturbating, " though defendant did not expose himself.
Tosh could see his hand "making the motion up and
down." When Tosh realized what defendant was doing, she
told her students that there was something at the front desk
that she needed to show them. Tosh distracted the children to
keep them from looking out the window and moved them sideways
toward the front desk. As Tosh moved sideways with the
children, defendant shuffled sideways as well, "making
the motion" along the window. Upon evidently realizing
that Tosh was removing the children from the classroom,
defendant quickly turned and walked down the street.
immediately told a coworker, Chheath, and her employer,
"Patty, " what she had seen. While Patty called the
police, Chheath went out the front door and followed [292
Or.App. 490] defendant. Chheath approached defendant yelling,
"Hey, " and defendant responded by turning around
in an aggressive and confrontational manner. As Chheath
continued to approach defendant, defendant walked back toward
him and put his hand in his pocket.
Davis of the Beaverton Police Department drove to
defendant's location after dispatch notified him "of
a local business reporting that a man was fondling himself
outside of the business." Davis also asked dispatch to
broadcast the information, because he wanted "as many
units to come to the area to try and find someone who's
doing- allegedly doing something like that." When Davis
got out of his car, he recognized defendant from previous
encounters and called out to him. Defendant did not respond.
Davis yelled for defendant to stop, and defendant turned,
faced Davis, and yelled, "What?" After Davis
noticed that defendant's hand was in his coat pocket,
Davis removed his firearm from its holster, held it at a
"low ready" (out of the holster but pointed at the
ground), and ordered defendant to remove his hand from his
pocket. When defendant exposed his hand in response, he was
holding a knife. At that point, Davis raised his gun, pointed
it directly at defendant, and ordered him to drop the knife.
Defendant did not comply.
Davis repeatedly ordered defendant to drop the knife, Officer
Wujcik arrived and gave the same command. Defendant responded
that he would not drop the knife because there were
"people after" him. A third officer, Freeman,
arrived next, and, upon seeing defendant in a fighting stance
with a knife in his hand, pointed his gun at him. Finally, a
fourth officer, Spurgeon, arrived. In response to Davis's
request for a "less lethal, " Spurgeon brought out
a shotgun loaded with soft rubber bullets. Spurgeon fired two
rounds at defendant, hitting him in the thigh. When defendant
still would not drop his knife, Spurgeon fired two more
rounds, each time hitting defendant in the shoulder. After
the fourth round struck defendant, he turned and ran, with
all four officers in pursuit.
ultimately collided with the side of a car emerging from a
driveway and abruptly stopped. Wujcik again ordered defendant
to drop the knife several times, [292 Or.App. 491] while
Spurgeon raised his shotgun and pointed it at him. Defendant
finally disposed of the knife by throwing it into some nearby
bushes. However, when defendant did not comply with
Wujcik's order to get down on the ground, Wujcik tackled
him. The encounter ended when Wujcik and Spurgeon handcuffed
and formally arrested defendant.
result of that encounter with the police, the state charged
defendant with four counts of unlawful use of a weapon, ORS
166.220 (1)(a); four counts of menacing, ORS 163.190; and,
for his interactions with Davis, one count of interfering
with a peace officer, ORS 162.247. Ultimately, the jury found
defendant guilty of two counts of unlawful use of a weapon
(one count as to Davis and another as to Wujcik), two counts
of menacing ...