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State v. Gibson

Court of Appeals of Oregon

October 2, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON GARRETT GIBSON, Defendant-Appellant.

          Argued and submitted May 8, 2018

          Hood River County Circuit Court 140281CM John A. Olson, Judge.

          Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Jason Garrett Gibson fled the supplemental brief pro se.

          Paul L. Smith, Deputy Solicitor General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary: A jury convicted defendant of second-degree criminal mischief, ORS 164.354. On appeal, defendant assigns error to the trial court's determination that it would permit the state to introduce a video of defendant's arrest, which the court had previously ruled inadmissible under OEC 403, if it granted defendant's request to provide Uniform Criminal Jury Instruction 1102 regarding voluntary intoxication. Defendant argues that he was entitled to the instruction because there was evidence that he was so intoxicated that he lacked the requisite criminal intent and that the court improperly revisited its pretrial ruling on the video. Held: Under State v. Langley, 363 Or. 482, 521, 424 P.3d 688 (2018), adh'd to as modifed on recons, 365 Or. 418, 446 P.3d 542 (2019), a trial court may reconsider its earlier ruling. The Court of Appeals concluded that the trial court did not err in its discretionary ruling under OEC 403 conditionally admitting the video, because the danger of unfair prejudice did not substantially outweigh the video's probative value.

         [299 Or.App. 583] LAGESEN, P. J.

         While intoxicated and angry, defendant dented the car belonging to his then-girlfriend, Z. For that conduct, he was charged with and then convicted by a jury of second-degree criminal mischief, ORS 164.354. On appeal, defendant assigns error to (1) the trial court's determination that it would permit the state to introduce a video of defendant's arrest if it granted defendant's request to provide Uniform Criminal Jury Instruction (UCrJI) 1102 regarding voluntary intoxication; (2) the court's denial of his motion to dismiss the case on the ground that his statutory and constitutional speedy trial rights were violated; and (3) the court's denial of his motion to prevent "the victims" from fleeing the state. For the reasons that follow, we affirm.

         Defendant punched, kicked, and walked on Z's car, denting it. As noted, defendant was intoxicated and angry at the time. The police investigated shortly after the incident but initially observed no damage to the car because of poor lighting conditions. For that reason, they did not arrest defendant immediately, but instead gave him a ride to where he was staying in his car. Later, Z took a look at the car in better light and recognized that the damage would be discernible to the police in that light. She called the police and they returned to her home to reexamine and photograph the damage to the car. The police then went to arrest defendant. At that point, approximately two hours had gone by since defendant damaged the car. His arrest was documented by a body camera worn by one of the arresting officers. The video reflects that defendant was still intoxicated at the time of his arrest. It also reflects that defendant was generally cooperative with the police during his arrest, although he was not shy about expressing his dissatisfaction about the arrest and the upcoming night (or more) in jail.

         For damaging Z's car, the state charged defendant with one count of second-degree criminal mischief. Before trial, defendant moved in limine to exclude the video of his arrest, contending that it was not relevant to anything at issue in the case and, alternatively, that it should be excluded under OEC 403. The state opposed the motion, arguing that it was evidence of defendant's demeanor, "intentionality," [299 Or.App. 584] and "his agitated behavior towards others and that that mental state continued." After reviewing the video, the trial court excluded it under OEC 403.

         During trial, the court conferred with the parties regarding jury instructions. Defendant requested that the court deliver UCrJI 1102, which explains how the jury may account for evidence of voluntary intoxication when assessing whether a criminal defendant possessed the requisite criminal intent:

"The voluntary use of alcohol or drugs does not excuse or justify criminal conduct. However, you may consider evidence of voluntary intoxication in making your decision whether the defendant had the mental state that is required for the commission of the charged offense."

UCrJI 1102. The state objected to the instruction but, alternatively, argued that, if the instruction was given, the court should reconsider its ruling excluding the video. The state argued that the video would be probative of how defendant behaves while intoxicated and whether he can make decisions, something that defendant's request for UCrJI 1102 put into play. The court concluded that defendant was entitled to the instruction if he wanted it. It also agreed with the state that, if defendant maintained his request that the instruction be delivered, then the video of defendant's arrest would be admissible under OEC 403. The court explained that, although it previously concluded that the probative value of the video was substantially outweighed by the danger of unfair prejudice, "raising a defense of voluntary intoxication makes that video relevant and makes my calibration of the prejudice versus the permissible use as just different." The court stated further that it would entertain a limiting instruction, upon defendant's request, that would restrict the jury's consideration of the video to the issue of how defendant's voluntary intoxication bore on the question of whether he had the requisite criminal intent.

         Defendant ultimately withdrew his request for the instruction in view of the trial court's ruling about the admissibility of the video. He noted for the record that he was maintaining his objection to that ruling. As a result, [299 Or.App. 585] the court neither instructed the jury with UCrJI 1102, ...


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