Submitted January 9, 2018
Multnomah County Circuit Court 15CR33617; Henry Kantor,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sara F. Werboff, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Patrick M. Ebbett, Assistant Attorney General,
fled the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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).
Or.App. 58] AOYAGI, J.
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.
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
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
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."
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.
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."
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 ...