Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cardona

Court of Appeals of Oregon

November 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
KARIN IVAN CARDONA, aka Karin Cardona, Defendant-Appellant.

          Submitted January 9, 2018

          Multnomah County Circuit Court 15CR33617; Henry Kantor, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant was convicted of assault in the fourth degree, ORS 163.160, for punching his ex-girlfriend on August 5. He was simultaneously tried for criminal mischief in the second degree, ORS 164.354, for allegedly damaging property at his ex-girlfriend's apartment on August 6, but he was acquitted on that charge. Defendant appeals the judgment of conviction for assault. He assigns error to the trial court's denial of his request for a limiting instruction that would have instructed the jury not to rely on evidence of defendant's acts on August 6 to infer defendant's guilt of the alleged assault on August 5. The trial court denied that instruction on the basis that the evidence from August 6 was relevant to defendant's mental state on August 5 and therefore admissible under OEC 404(3). Held: The trial court erred in denying defendant's request for a limiting instruction. On this record, the jury could not logically infer that defendant's conduct on August 6 evinced a motive that came into existence before the alleged assault on August 5. The evidence from August 6 therefore was not relevant to defendant's motive on August 5 and was not admissible under OEC [295 Or.App. 57] 404(3). Rather, the evidence was propensity evidence, which could only be admitted, if at all, under OEC 404(4).

          [295 Or.App. 58] AOYAGI, J.

         Defendant was charged with assault in the fourth degree, ORS 163.160, for allegedly punching his ex-girlfriend on August 5, and with criminal mischief in the second degree, ORS 164.354, for allegedly damaging property at his ex-girlfriend's apartment on August 6. A jury convicted him of assault and acquitted him of criminal mischief. On appeal, defendant assigns error to the trial court's denial of his request for a limiting instruction. The requested instruction would have told the jury not to rely on evidence of defendant's acts on August 6 to infer defendant's guilt of the alleged assault on August 5. For the reasons that follow, we agree with defendant that the trial court erred in concluding that the evidence was admissible as intent or motive evidence under OEC 404(3) and in refusing to give the requested instruction on that basis. Accordingly, we reverse and remand the assault conviction and otherwise affirm.[1]

         DEFENDANT'S TRIAL

         Given the posture of this case, we summarize the relevant evidence offered by both the state and defendant at trial, noting any factual disputes, rather than stating the facts in the light most favorable to one party. Evidence for which the source is not identified indicates an uncontested fact in the trial evidence.

         Defendant and A are former romantic partners who have a son together. In early June, A accepted an offer to deploy to Guantanamo Bay with the Coast Guard Reserves. Expecting to depart soon, A asked defendant to move into her apartment to care for their son, which defendant did in late June. She and defendant shared a bed and were "intimate" after he moved in but did not resume a romantic relationship. Soon, A learned that she was not deploying after all. As a result, defendant planned to move out once he found other housing. Defendant was still living in As apartment in early August, however, when A returned from a three-week-long Coast Guard training.

         [295 Or.App. 59] According to the state's evidence, on August 5, defendant implied that he wanted to have sex with A, but A was not interested, and defendant "started yelling and getting upset" and told A that "he was going to have sex with [her] whether [she] wanted to or not." A left the apartment and walked around the block. When she returned, defendant was still there, and she asked him to leave, but he refused. She and defendant "started getting in a fight," and, at some point, defendant "got on top of" A on the bed and punched her in the lip. A was not sure whether defendant intended to hit her or a pillow, but she "got punched."

         According to defendant's evidence, defendant never punched A on August 5. Defendant did not punch her and was not even in the apartment at the time of the purported fight-he was at school. Defendant does not know how A injured her lip.

         A spent the night of August 5 at a friend's house. She sent a text message to defendant saying that he could stay that night at the apartment and then needed to find "somewhere else to go."

         The next morning, August 6, A returned to the apartment after defendant had left. A gathered defendant's belongings, put them on the porch, and texted defendant to come pick them up. Defendant, who did not have a key, arrived that evening. In a text message, he asked A to let him inside to use the bathroom. A responded that she was not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.