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State v. Olson

Court of Appeals of Oregon

October 17, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TATTUM JENELL OLSON, Defendant-Appellant.

          Submitted November 29, 2017

          Linn County Circuit Court 14CR06480; DeAnn L. Novotny, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Nathan Riemersma, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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.

         Affirmed.

         [294 Or.App. 421] DEVORE, J.

         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 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.

         Defendant 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."

         Approximately 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 victim's boyfriend.

         Defendant 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.

         In 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.

         During its case-in-chief, the state asked the victim about the July encounter with defendant outside the courthouse. Defendant objected on relevancy grounds. The ...


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