Submitted November 29, 2017
County Circuit Court 14CR06480; DeAnn L. Novotny, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kali Montague, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Nathan Riemersma, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant appeals a judgment of conviction for
second-degree assault, ORS 163.175, and unlawful use of a
weapon, ORS 166.220. She assigns error to the trial
court's admission of evidence under OEC 401, 402, and
404(4), arguing that testimony of her yelling profanities and
gesturing at the victim one year after the charged offenses
was irrelevant and inadmissible. Defendant contends that the
error was not harmless because it undermined her credibility,
casting her as an "aggressive and out-of-control
person." Held: Assuming, without deciding, that
the trial court erred, any error was harmless. The evidence
had little likelihood of affecting the jury's verdict in
light of other evidence pertaining to defendant's
aggression and credibility and because the testimony was
tangential to both parties' theories of the case.
Or.App. 421] DEVORE, J.
appeals a judgment of conviction for second-degree assault,
ORS 163.175, and unlawful use of a weapon, ORS 166.220. She
assigns error to the trial court's admission of evidence
under OEC 401, 402, and 404(4), arguing that evidence of her
acts one year after the charged offenses was irrelevant and
inadmissible. Defendant contends that the error was not
harmless because it undermined her credibility. The state
responds that the evidence was relevant but, if not, that it
had little likelihood of affecting the verdict. Assuming
without concluding that the trial court erred, we determine
that any error was harmless. Accordingly, we affirm.
was involved in an assault that occurred in April 2014. She
had discovered that her boyfriend had an affair with the
victim. After that discovery, defendant sent a series of text
messages to the victim, expressing awareness of the
relationship and making numerous violent threats, including
to "smash [the victim's] fucking head in" and
to kill the victim. The next day, defendant appeared while
the victim was retrieving an item from her vehicle in front
of her grandmother's house. Before the victim could exit
her car, defendant jumped on the victim and began beating
her. Defendant hit the victim repeatedly with her fists.
According to the victim and the grandmother, defendant also
hit the victim with a liquor bottle she found in the
backseat. After the attack, defendant left the scene, and the
victim was taken to the hospital. Defendant texted the victim
again to say, "Cheater chea[t]er pum[p]kin eater."
one month later, a police officer interviewed defendant as
part of an investigation into the assault. During the
recorded interview, defendant yelled at the officer. She
acknowledged sending the text messages, but adamantly denied
attacking the victim. Defendant blamed the injuries on the
was charged with second-degree assault, ORS 163.175, and
unlawful use of a weapon, ORS 166.220. In July 2015, more
than a year after the assault, defendant and the victim both
appeared at the Linn County Courthouse for a trial date,
which was then rescheduled. According to the [294 Or.App.
422] victim, as she and her family prepared to leave the
courthouse, defendant approached their vehicle, yelling
profanities and gesturing with her middle finger.
October 2015, the case was tried to a jury. The state called
the victim as a witness, and she testified about threats
leading up to the charged incident, the attack in which
defendant assaulted her with a liquor bottle, and resulting
injuries. The state called the victim's grandmother as a
witness, who similarly described defendant beating the victim
with the bottle, and described the resulting injuries. The
state supplemented the testimony with photographs depicting
defendant's threatening text messages, the victim's
injuries (including swelling and dark bruising on her face,
chest, arms, and legs), and the car in which the assault took
place (including the liquor bottles therein). In addition,
the jury watched the entire video recording of the police
officer's interview with defendant.
its case-in-chief, the state asked the victim about the July
encounter with defendant outside the courthouse. Defendant
objected on relevancy grounds. The ...