and Submitted February 12, 2018
Washington County Circuit Court C152839CR; Suzanne Upton,
L. Dean argued the cause and fled the brief for appellant.
Brown, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
two counts of theft and one count of robbery. Defendant and a
companion were stopped by the police after driving away from
a shopping mall following an altercation with a loss
prevention officer (LPO) during which the LPO accused
defendant's companion of stealing a coat, and defendant
interceded and threatened the LPO. The police found several
articles of clothing and an exchange receipt unrelated to the
charged incident in the trunk of defendant's car. At
trial, the court allowed the officers to testify about those
items and that those items were indicative of return fraud.
Over defendant's objection, the court ruled that
defendant had opened the door to the evidence on
cross-examination. The court also ruled that the evidence was
admissible under OEC 404(3) to show an absence of mistake.
Defendant challenges those rulings on appeal. The state does
not defend the admission of the evidence, but it argues that
any error was harmless. Held: The trial court erred.
First, none of the testimony elicited by defendant was
specific enough to open the door to the wrongly admitted
evidence. Second, the wrongly admitted evidence was not
sufficiently similar to evidence of the charged conduct to
establish lack of mistake by defendant. The error was not
harmless because the wrongly admitted evidence implicated
defendant in a criminal enterprise [293 Or.App. 493]
involving theft and return fraud beyond the charged incident,
and the evidence was not cumulative of other evidence in the
Or.App. 494] SHORR, J.
appeals from a judgment of conviction for one count of
third-degree robbery and two counts of second-degree theft.
Defendant was charged along with a codefendant, Sang Nguyen
(Sang), for allegedly stealing merchandise from Abercrombie
& Fitch (AF) and Abercrombie Kids (AK) stores at the
Washington Square mall in Tigard. Defendant and Sang were
stopped by the police shortly after driving away from the
mall following an altercation with a loss-prevention officer.
At trial, the court allowed the state to introduce evidence
that defendant had merchandise and a receipt from another
retailer in the trunk of his car. It also admitted testimony
from a police detective who explained that defendant may have
been engaging in "return fraud," returning stolen
items for store credit.
assigns error to those evidentiary rulings. The state does
not defend the trial court's rulings on appeal but argues
that any error was harmless. We conclude that the trial court
erred by admitting the challenged evidence. Further, that
error was not harmless. Accordingly, we reverse and remand.
provide the following facts as context for our analysis of
the trial court's evidentiary rulings. Defendant was
charged after leaving Washington Square mall with a friend,
Sang. A loss-prevention officer, Tadesse, had observed Sang
stealing a brown coat from the AF store in the mall. Tadesse
testified that she saw Sang enter the AF store alone. She
observed Sang remove a brown coat from a rack in the store,
cross to other side of the store, and surreptitiously rip the
security tag off the coat. During that time, Tadesse also
observed defendant enter the AF store carrying a bag from
Express, another clothing store in the mall. Defendant and
Sang did not speak to or otherwise acknowledge one another.
The two men then left the store at the same time, heading in
opposite directions. Sang was carrying the coat from which he
had removed the security tag.
Or.App. 495] Tadesse immediately approached Sang outside the
store and attempted to retrieve the coat from him. Sang
resisted her efforts and insisted that the coat was his.
During their struggle, defendant approached and began to
argue with Tadesse. Tadesse testified that defendant asked
"are you harassing my friend?" and told her
"we didn't take any of your stuff, bitch."
Tadesse recalled that defendant was yelling and behaving
aggressively. Defendant then left, and Tadesse and Sang
struggled for a few moments more. When it was clear that Sang
would not release the coat, Tadesse became concerned for her
safety, released the coat, and allowed Sang to leave.
followed Sang to the parking lot outside the mall. She
observed Sang and defendant meet up at a car and saw
defendant place the Express bag in the trunk. Tadesse
approached but maintained her distance. Sang and defendant
continued to be verbally aggressive toward Tadesse. Tadesse
attempted to write down the license plate number of the car,
at which point defendant approached her- Tadesse recalled at
trial that he "charged" up to her-and told her that
he would kill her if she wrote down the license plate number.
Defendant then made a slashing motion with his thumb across
his throat. Tadesse backed away and the men left in the car.
was able to record a partial license plate number and called
the police. Defendant and Sang were stopped in
defendant's car a short time later by Orth and Rinell,
Tigard police officers. Detective Hahn arrived at the scene
shortly thereafter. Orth and Rinell first recovered from the
backseat of the car a brown coat matching the description of
the coat that was stolen from AF. Hahn then received
permission from defendant to search the car. In the trunk,
Hahn discovered two jackets from AK-one blue and red and one
blue-in a bag. Neither Hahn nor Orth could recall if those
jackets were in an Express bag like the one Tadesse observed
defendant carrying or in a different bag. The officers did
not find a receipt for those jackets in the car. In addition,
Hahn and Orth observed several other jackets from other
retailers, including Express, in the trunk, including
multiple jackets of the same size and color. The officers
also found an exchange receipt for items from Express.
Or.App. 496] Tadesse arrived at the scene during the police
search and identified defendant, Sang, and the stolen
merchandise. Tadesse confirmed that they were the same men
from the mall and identified the brown coat as the same one
that Sang had stolen from AF. In addition, Tadesse believed
that the two AK coats from the trunk, as well as a similar AK
coat worn by Sang, had all been stolen as well. Tadesse based
that belief on the fact that three coats of the same size and
color had recently gone missing from the inventory of the AK
store at the Washington Square mall. Defendant ...