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State v. Skillicorn

Court of Appeals of Oregon

May 22, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID JOHN SKILLICORN, III, Defendant-Appellant.

          Argued and submitted May 23, 2018

          Washington County Circuit Court C152791CR, 16CR17639 Rick Knapp, Senior Judge.

          Erica Herb, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeVore, Presiding Judge, and James, Judge, and Brewer, Senior Judge.

         Case Summary: Defendant was charged with multiple crimes for an incident in which, following a domestic dispute with his girlfriend, he drove his employer's truck into her parked car and then proceeded to hit another parked car as he was driving out of the neighborhood. Defendant claimed that the truck had malfunctioned and that he had not intentionally or recklessly driven into either parked car. To prove otherwise, the state offered evidence of other instances in which defendant had driven aggressively through the same neighborhood, including an incident in which he crashed a vehicle over a curb and into a grassy berm after a conflict with his girlfriend. The court admitted that evidence, and the jury found defendant guilty of unauthorized use of a vehicle, first-degree criminal mischief, and second-degree criminal mischief. On appeal, defendant argues that the evidence of his prior misconduct was inadmissible character evidence that should have been excluded under OEC 404 and OEC 403. Held: Evidence that defendant had previously crashed leaving the same neighborhood after a fight [297 Or.App. 664] with his girlfriend was admissible under the "doctrine of chances" to prove that the charged crimes were not the result of the truck malfunctioning. Defendant's remaining claims of error with regard to the admission of evidence were either unpreserved or failed to demonstrate prejudice to defendant.

         Affirmed.

         [297 Or.App. 665] JAMES, J.

         Defendant was charged with multiple crimes for an incident in which, following a domestic dispute with his girlfriend, he drove his employer's truck into her parked car and then proceeded to hit another parked car as he was driving out of the neighborhood. Defendant claimed that the truck had malfunctioned and that he had not intentionally or recklessly driven into either parked car. To prove otherwise, the state offered evidence of other instances in which defendant had driven aggressively through the same neighborhood, including an incident in which he crashed a vehicle over a curb and into a grassy berm after a conflict with his girlfriend. The court admitted that evidence, and the jury found defendant guilty of unauthorized use of a vehicle, first-degree criminal mischief, and second-degree criminal mischief. On appeal, defendant argues that the evidence of his prior misconduct was inadmissible character evidence that should have been excluded under OEC 404 and OEC 403. We hold that evidence that defendant had previously crashed leaving the same neighborhood after a fight with his girlfriend was admissible under the "doctrine of chances" to prove that the charged crimes were not the result of the truck malfunctioning. Defendant's remaining claims of error with regard to the admission of evidence are either unpreserved or fail to demonstrate prejudice to defendant, and we, therefore, affirm.

         I. BACKGROUND

         The background facts, for purposes of appeal, are undisputed. On November 7, 2015, defendant's girlfriend, Walker, was staying overnight with her mother, Peterson. Around midnight, defendant knocked on the door of Peterson's home and implored Walker to come to his house instead. Walker declined to go, and defendant left. A few minutes later, defendant knocked again, insisting that Walker leave with him. Walker again said no and shut the door.

         Shortly thereafter, Peterson heard the sound of defendant either revving the engine or spinning the tires of the truck he was driving, followed by "a very loud crash." [297 Or.App. 666] Defendant had driven the truck into Peterson's driveway, where Walker's Mazda had been parked, and he had crashed into the Mazda and pushed it through the garage door, four feet into the garage. Defendant then knocked on the front door again, and he apologized to Walker and Peterson. Walker told him to leave.

         Meanwhile, one of Peterson's neighbors, Howard, was in his garage when he heard the sound of tires "burning out," followed by the faint sound of a crash. Howard then heard the sound of an engine revving and picking up speed, followed by an incredibly loud sound "like a bomb went off." He opened his garage door and saw that his own car, a Honda Civic, which had been parked in front of his driveway, was now perpendicular to the road, and a wheel from a larger vehicle had broken off and was stuck in the Civic. He looked around and saw a truck that was stopped in the trees on a wooded lot on the corner across the street. The truck was missing a front wheel, and parts and debris from the truck and the Civic were strewn across the street.

         As Howard crossed the street toward the truck, he saw defendant open the door and get out of the truck. It looked to Howard as though defendant was going to run, but Howard stopped him and told him that he had been in an accident and that Howard would help him. Defendant collapsed to the ground as though he were injured or in shock. Another neighbor, Hout, also arrived on the scene. As Hout and Howard were trying to determine what type of aid to administer, defendant suddenly picked up his head and said, "Tell [Walker] I love her." An ambulance arrived and transported defendant to the hospital.

         A police officer followed the ambulance to the hospital. Defendant had not sustained any injuries and was released, and the officer arrested him and took him to the police station. On the way to the station, defendant told the officer that the truck "took off and that "the pedal had slid." Defendant said that the truck belonged to his boss, that it had "significant issues," and that defendant had the truck because he was repairing it.

         At the police station, after the police gave him Miranda warnings, defendant asserted that he was not [297 Or.App. 667] trying to leave Peterson's house "aggressively." He claimed that he had parked on the street and, when he put the truck into drive, it "just took off on him" and "jumped forward." He said that, once he got out of the truck to apologize, Peterson began yelling at him so he left. Defendant also repeated the assertion that his boss had loaned the truck to him to be repaired. When asked about Howard's Civic that had been damaged, defendant stated that the truck had pulled to the right and hit the car.

         For that sequence of events, defendant was charged with unauthorized use of a vehicle, ORS 164.135, first-degree criminal mischief, ORS 164.365, failure to perform the duties of a driver, ORS 811.700, and second-degree criminal mischief, ORS 164.354, and he was incarcerated while awaiting trial. During that incarceration, defendant spoke on the phone with Walker about how she could avoid testifying; he also spoke to an unknown woman about whether Walker would have to testify. Defendant told the woman that "[n]obody can say whether I intentionally did something or not because no one was there."

         The state, anticipating a claim that the truck had malfunctioned, moved in limine to admit evidence of a previous occasion in which defendant had "driven in the same similar manner in the same neighborhood before, after leaving the girlfriend's residence." The prosecutor represented to the trial court that the two neighbors, Howard and Hout, would testify about an earlier incident when defendant had left Peterson's house and "tore down the street and then crashed somewhere on the street." Defendant objected to the admission of that evidence, arguing that defendant was not charged with reckless driving, so "I don't know what his prior driving through the neighborhood would be relevant for." Defendant also objected that the police reports indicated that Howard had mentioned that defendant had "blazed out of the neighborhood before" but nothing about another accident.

         The prosecutor then explained that she had spoken with Hout after the police report was generated, and that Hout had provided additional details, including information [297 Or.App. 668] about the second crash. The trial court ruled that evidence of that prior incident was admissible, explaining:

"With regard to the incident that occurred prior to this at the-at [Walker's] residence, I do find that that is relevant because *** this incident on November 7th is at- at her house, it involves a car that he-a Toyota Tundra which is an-the unauthorized use and he's there at the house on November 7th and then that's when the criminal mischief in the first degree occurs and the state has to prove the intent. And his prior conduct with regard to the issues with regard to Ms. Walker and what he's done before then is relevant?

(Emphasis added.) The court then conducted balancing under OEC 403 and determined that the probative value of the evidence was not substantially outweighed by the risk of prejudice. Accordingly, the court concluded that "it is admissible and I will allow those things that occurred prior over at Ms. Walker's home or neighborhood to be admissible for the jury. They will then be receiving * * * an instruction that's required under [State v. Leistiko, 352 Or. 172, 282 P.3d 857, adh'd to as modified on recons, 352 Or. 622, 292 P.3d 522 (2012)] about prior bad acts that I'll include in the jury instructions."

         After the parties had given their opening statements, and just before the state presented its first witness, defendant asked the court to revisit its ruling on the admissibility of the previous incident, based on a conversation defense counsel had with Hout during a recess. Defendant argued that Hout had not seen the driver of the vehicle involved in the earlier incident, and that, even though police had been called during that incident, Walker had not identified defendant as the driver. For that reason, defendant "renewed [his] objection regarding the issue of whether or not there's even enough to show that it was [defendant] who was driving on this prior incident that the State wants to go into."

         The prosecutor, in response, explained that Hout was certain that defendant was the driver on that earlier occasion because Hout had later confronted defendant about that incident and nearly gotten into a fight with him. With that additional information that defendant was the driver, [297 Or.App. 669] the trial court adhered to its earlier ruling and noted that the parties could revisit the issue again at trial, depending on how the evidence came in; the court stated, "[l]et's see where this all takes us. And, if I have to, I'll tell the jury to strike it in the worst case scenario."

         During trial, the state elicited testimony about that previous incident, as well as testimony about defendant's driving patterns generally. Under direct examination, Peterson was asked whether she had seen or heard defendant's vehicle before he drove it into her garage. She responded that it was a large, noisy truck, and that she heard him revving the engine when he arrived and when he left. She testified that it concerned her "[b]ecause I live in a really nice residential neighborhood and everybody cares about everyone's kids and animals and-and I have been told by my neighbors to keep him out of the neighborhood and I thought, 'Why? You can't say that to me.' But the neighbors did not like [defendant], so-because he-his driving pattern. He would scream down the street[.]" At that point, defense counsel objected, "for reasons previously stated" without any further elaboration. The court responded, "Based on that objection, overruled."

         Later, the prosecutor asked Peterson follow-up questions about defendant's driving. She asked Peterson, "And how would you describe his driving in the neighborhood?" Peterson responded:

"Well, on one occasion, [Walker] and [defendant] had a fight and [defendant] left, got into his truck and just screamed, I mean, just-it was so loud and it was so fast it scared me and so I kept [Walker] in the house. And my neighbors after that event, I think he went up a grassy knoll area, but came over and said, 'We have children and we have pets and we don't want him in the neighborhood anymore. We've heard his truck. We know the way he drives and, you know, we're-we're going to bring your name up to the Board.' And so I thought I might have to move for a while."

         While questioning Hout, the prosecutor elicited further details about that incident in which defendant had driven into a grassy area in the neighborhood.

[297 Or.App. 670] "Q. Okay. Now, you said that you know the defendant. And have you witnessed him driving dangerously ...

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