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State v. Sim

Court of Appeals of Oregon

June 20, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTHONY CHEY SIM, Defendant-Appellant.

          Argued and submitted April 26, 2017

          Washington County Circuit Court C150812CR Thomas W. Kohl, Judge.

          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 Defense Services.

          Lauren 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 General.

          Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Haselton, Senior Judge. [*]

         Case 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.

          [292 Or.App. 489] DEHOOG, P. J.

         Defendant 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.

         At 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.

         Tosh 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.

         Sergeant 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.

         As 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.

         Defendant 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.

         As a 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 ...


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