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State v. Anderson

Supreme Court of Oregon

August 2, 2018

STATE OF OREGON, Petitioner on Review,
ADAM FRANCIS ANDERSON, Respondent on Review.

          Argued and submitted September 22, 2017.

          On review from the Court of Appeals (CC 123592) (CA A155404).[*]

          Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and fled the brief on behalf of petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Emily P. Seltzer, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief on behalf of respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

          Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, and Nelson, Justices. [**]

         [363 Or. 393] Case Summary:

         The state sought to admit a booking video to show that the clothing defendant was wearing in the video was similar to the clothing of a person shown attempting to withdraw money from the victim's ATM. Defendant objected to the admission of the video under OEC 403. After hearing the parties' arguments on the degree of relevance, and the prejudicial effect of seeing defendant in handcuffs while being booked, the trial court watched the video to help it “decide the balancing issue.” After watching the video to determine the similarity of the clothing, the court stated that the video was relevant and admitted it. The Court of Appeals reversed, not because the trial court had abused its discretion but because it had failed to sufficiently explain the basis of its OEC 403 ruling.


         A trial court will make a sufficient record of its consideration of the probative value of evidence, its prejudicial effect, and the balance it struck if the court's OEC 403 ruling, considered in light of the parties' arguments, demonstrates, as the record did here, that the court balanced the appropriate considerations.

         The decision of the Court of Appeals is reversed, and the judgment of the circuit court is affirmed.

         [363 Or. 394] KISTLER, J.

         A trial court may exclude relevant evidence if the "probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice." OEC 403. In this case, the trial court admitted a booking video of defendant over an OEC 403 objection because the video bore on the central issue in the case-the identity of the person who had taken money from the victim's bank account. A divided Court of Appeals reversed the trial court's ruling, not because the trial court had abused its discretion in admitting the video but because it had failed to sufficiently explain the basis for its ruling. State v. Anderson, 282 Or.App. 24, 386 P.3d 154 (2016). We allowed the state's petition for review to consider that recurring issue. We now reverse the Court of Appeals decision and affirm the trial court's judgment.

         Three people-Debra, Michelle, and Charles- shared a house in Lincoln City. Defendant needed a place to stay, and Debra and Michelle agreed that defendant could "crash" at their house for a couple of days.[1] The weekend after defendant began staying at their house, Debra tried to withdraw money from her Wells Fargo bank account at an ATM but was unable to do so.

         On Monday morning, Debra checked with Wells Fargo and learned that someone had withdrawn $300 from her account at a Wells Fargo ATM and that the personal identification number (PIN) for her account had been changed. She also learned that, six or seven minutes after $300 had been withdrawn from the Wells Fargo ATM, someone had attempted to withdraw additional funds from her account at a nearby Bank of America ATM.

         After learning that information, Debra went home and found that her emergency ATM card, with her PIN attached, had been taken from the dresser drawer in her bedroom. She also realized that defendant had moved out of her house on Sunday rather than later, as he initially had planned.

         [363 Or. 395] Debra notified the police, who obtained a surveillance video from the Bank of America ATM.[2] The police showed Debra and Michelle stills taken from the video, which depicted a person attempting to use Debra's ATM card at the Bank of America ATM and also walking away from the ATM. The stills either do not show the person's face or do not do so clearly. Despite that fact, both Debra and Michelle identified the person in the stills as defendant, based on the clothing that the person was wearing and the person's general physical resemblance (height and build) to defendant.

         When asked at trial what stood out to her about the person depicted in the stills, Debra testified:

"The red gloves, the shoes he's wearing, the pants that he's wearing, uh, the coat. I mean, the stuff is what I had seen [defendant] in all the days that he had been staying at our house. A hoodie. A gray hoodie, which is underneath this."

         Both Debra and Michelle described the red gloves pictured in the stills as distinctive; there is a print of a skeleton's fingers on the gloves, which were similar to gloves that Debra and Michelle had seen defendant wear.

         On cross-examination, defense counsel brought out that the person's face in the stills could not be seen clearly, that the clothes were relatively common, and that it was not completely clear from the stills how tall the person was. Defense counsel also elicited testimony from Debra and Michelle that they had had "prior theft issues at the house," that their roommate Charles had a gambling problem, and that Charles had twice stolen the rent money. Both Debra and Michelle testified, however, that the person in the stills did not resemble Charles, who had a moustache.

         To support its claim that defendant was the person depicted in the stills, the state offered a booking video of defendant taken approximately two weeks after the withdrawal from Debra's bank account. The state wanted to introduce the video to show that defendant was wearing the same or similar clothing in the booking video as the person [363 Or. 396] depicted in the Bank of America stills. Defendant objected to the video's admission, and the parties engaged in the following colloquy with the court outside the jury's presence:

"[DEFENSE COUNSEL]: [What] I'm expecting [the state] to show here is there's some, um, some video of [defendant] walking into the jail after he was arrested. So he's kind of, uh, in handcuffs, walking into the jail. There's no audio.
“* * * * *
"I guess what my concern becomes is it's showing [defendant] in custody. Just as in trial here, um, you know, the jury's not to know custodial status, seeing him, you know, with the walk of shame, handcuffs on, being taken to the jail I think creates a, creates a problem for us. Even understanding the State's trying to show it for what he's wearing, nonetheless, it's, it's certainly showing him in, in police custody, and that's where my, um, my concern lies.
"THE COURT: Is that an objection?
"[DEFENSE COUNSEL]: Yes. That's my-my objection is to the, uh, admissibility of this, of this video on those grounds.
"THE COURT: And, and the-and what's the objection? I mean, what's-what rule do you cite to say it's [not admissible]?
"[DEFENSE COUNSEL]: [I] guess it always comes down to, in a, in a relevance type of situation, the, uh, comparing the relevance, which I'll, I'll concede there is some relevance there because there's, uh-we're talking about the clothing, but versus the, the prejudicial value here.
"Now the jury can certainly never know while I'm in trial, you know, we don't bring [defendant] in with the orange jumpsuit because, uh, the, the jury can never know. It's prejudicial for them to know that he's in custody on this.
"I think we have the similar problem, um, with the, with the parade into the jail. I think this becomes more problematic, because I think that he was, he was brought in on a probation violation, um, as he was brought into the jail. So it's not just like a DUI situation where [you] see the video of the person being arrested right then. This is [363 Or. 397] a, a later video of when he's brought in. And, um, I, I guess my concern is the prejudicial effect. That this creates, um, weight against the, the relevance value of it. It's, um, it's too prejudicial showing, frankly, my client's custody status.
"THE COURT: And, uh, just from the file, I'm going to guess you're going to tell me that the arrest was at 7:30 ...

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