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State v. Schmidt

Court of Appeals of Oregon

March 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID EDWARD SCHMIDT, Defendant-Appellant.

          Argued and submitted September 26, 2017

          Douglas County Circuit Court 15CR55073; William A. Marshall, Judge.

          Charles F. Lee argued the cause for appellant. Also on the brief was Charles F. Lee P.C.

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

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(4), and reckless driving, ORS 811.140. Defendant assigns error to the trial court's denial of his request to exclude evidence of his prior DUII convictions in a joint trial on both charges. In the alternative, defendant argues that the trial court erred in denying his motion to sever the charges. The state responds that the court properly admitted the evidence and concluded that the joint trial would not cause defendant substantial prejudice. Held: The trial court did not abuse its discretion in admitting defendant's previous DUII convictions or err in denying defendant's motion to sever. The trial court properly conducted an OEC 403 analysis and defendant did not demonstrate that the specific evidence in this case of prior, similar crimes created an implication of guilt.

         [296 Or.App. 364] EGAN, C. J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(4)[1], and reckless driving, ORS 811.140. He assigns error to the trial court's denial of his request to exclude evidence of his prior DUII convictions in a joint trial on both charges when the prior convictions were relevant only to the reckless driving charge. In the alternative, defendant argues that the trial court erred in denying his motion to sever the charges. For the reasons explained below, we affirm.

         The relevant facts are procedural and undisputed. Defendant was charged with DUII and reckless driving based on conduct that occurred on a single day. The court granted the state's motion to consolidate both charges for trial. During the trial, outside of the presence of the jury, the state sought to introduce evidence of defendant's prior DUII convictions. Defendant objected, arguing that the prior convictions were not relevant to the DUII charge, "except [for] the improper effect of telling the jury that this fellow has had DUIIs before," and that the probative value of the prior convictions was substantially outweighed by the potential for unfair prejudice. Defendant also argued that, if the court ruled that the prior convictions were admissible as to the reckless driving charge, the court would need to sever that charge from the DUII charge because of the potential for unfair prejudice.

         The trial court ruled that the prior DUII convictions were relevant to the reckless driving charge, reasoning that the evidence of the convictions showed that defendant had undergone alcohol treatment and evaluation and that "someone that has been through the evaluation and has been through treatment can be at a higher state of awareness of those risks." In other words, the court determined that the prior convictions were relevant to prove an element of the crime of reckless driving under ORS 811.140: that defendant was aware of and consciously disregarded a substantial and [296 Or.App. 365] unjustifiable risk.[2] The court also determined that it would not need to sever the charges because it would "instruct the jury that they are not to consider [the exhibits showing defendant's prior convictions] in their determination of whether the Defendant is guilty or not guilty of [DUII] ."[3]

         Later in the trial, again outside of the presence of the jury, the court revisited its ruling admitting the prior convictions. The court explained "for the record, that [it had] gone through the weighing process," including "factoring in prejudice." The court determined that it would admit the convictions if they were offered, again explaining that it believed that "by instructing the jury to disregard [the prior convictions] as to the DUII charge and only consider [them] for the Reckless Driving charge," any potential prejudice would be "deal [t] with."

         Immediately after the state introduced evidence of defendant's prior convictions to the jury, the court instructed the jury "that the use of [the exhibits of defendant's prior DUIIs] are not to be considered when you consider whether the Defendant is not guilty or guilty of [DUII]." At the end of the case, the court again instructed the jury on the issue:

"You are instructed that [evidence of defendant's prior convictions for DUII] may not be used in your determination of whether [defendant] is not guilty or guilty of [DUII]. You may only use those exhibits in your determination of [296 Or.App. 366] whether the element of recklessly, in the charge ...

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