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State v. Nguyen

Court of Appeals of Oregon

August 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
PHIHOA LONG NGUYEN, Defendant-Appellant.

          Argued and Submitted February 12, 2018

          Washington County Circuit Court C152839CR; Suzanne Upton, Judge.

          Adam L. Dean argued the cause and fled the brief for appellant.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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 record.

         [293 Or.App. 494] SHORR, J.

         Defendant 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.

         Defendant assigns error to those evidentiary rulings.[1] 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.

         We 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.

         [293 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.

         Tadesse 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.

         Tadesse 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.

          [293 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 ...

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