Submitted August 9, 2019
Multnomah County Circuit Court 16CR55091, 16CR62746; Leslie
G. Bottomly, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erica Herb, Deputy Public Defender, Office of Public Defense
Services, filed the brief for appellant. On the supplemental
brief were Ernest G. Lannet and Andrew D. Robinson, Deputy
Public Defender, Office of Public Defense Services.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Christopher Page, Assistant Attorney General,
filed the briefs for respondent.
Lagesen, Presiding Judge, and Powers, Judge, and Kistler,
Summary: Defendant appeals from a judgment of conviction for
first-degree robbery, first-degree burglary, unlawful use of
a weapon, strangulation, second-degree kidnapping, and
menacing. He assigns error to the trial court's denial of
his motion in limine, as well as his midtrial
objection before the witnesses testified, to exclude evidence
that he barricaded himself in the victim's house and that
police forcibly entered the house to arrest him after a
nine-hour standoff. He also assigns error to the trial
court's denial of his subsequent objection under OEC 403
and motion for mistrial, both based on the evidence of the
standoff being unfairly prejudicial. Held: (1) The
trial court's denials of defendant's motion in
limine and midtrial objection to exclude evidence of the
standoff were preliminary and not appealable. (2) The trial
court did not abuse its discretion in rejecting
defendant's pretrial proposal to limit evidence of the
standoff, because the nature and extent of the actions that
defendant took to avoid [300 Or.App. 193] capture bore on the
extent to which the jury could infer his guilty knowledge.
(3) Defendant's OEC 403 objection and motion for mistrial
were untimely, as defendant waited until long after the
witnesses had finished their testimony and been excused
before objecting to the specific testimony that they offered.
Or.App. 194] KISTLER, S. J.
appeals from a judgment of conviction for first-degree
robbery, first-degree burglary, unlawful use of a weapon,
strangulation, second-degree kidnapping, and menacing. He
raises four assignments of error in his opening brief and
three additional assignments of error in a supplemental
brief. We limit our discussion to the second and third
assignments of error in his opening brief and affirm the
trial court's judgment.
victim and defendant had been in a relationship for some
time. In 2016, the victim sought to end the relationship, but
defendant persisted. He repeatedly drove by the victim's
home, telephoned her, and sent her text messages. On three
occasions during August and September, defendant took actions
that resulted in the convictions he now challenges on appeal.
We describe those actions briefly before turning to the trial
court's evidentiary rulings that are the subject of
defendant's second and third assignments of error.
August 9, 2016, the victim was at home sleeping on a couch.
She woke to find defendant putting a plastic bag over her
head. After struggling with defendant, she was able to get
the bag off her head. However, once she did so, defendant put
a gun initially to her head and then in her mouth. He accused
her of seeing other men and told her that he was going to
kill her. He said that he was going to put her body in the
plastic bag and bury her where no one would find her. At
first, the victim told defendant that she was not seeing
anyone. Later, she "started agreeing to what he was
saying, because[, as the victim put it, ] the truth
wasn't working." When she began
"admitting" his accusations, defendant calmed down.
He left the living room briefly, which allowed the victim to
text her adult daughter to call the police. Defendant became
suspicious that the victim had contacted the police and fled
from the house when officers knocked on the front door.
Or.App. 195] After that attack, the victim stayed in her
mother's house because she "was too scared to go
back" to her own home. However, on August 22, the victim
went back to her home with four members of her family. She
wanted to gather some clothes and secure the house to keep
defendant from getting inside. When they were inside the
home, they "smell[ed] smoke. It just didn't seem
right. It felt like he *** might have just been there."
They looked for defendant but did not find him. Then, the
victim's daughter went over to a couch by the window.
When she did so, the couch moved, defendant jumped out from
behind the couch, brandished a gun, and threatened to kill
the victim. When the victim's uncle and her daughter
confronted defendant, he ran out the back of the house.
those two encounters, defendant continued to telephone the
victim, and the victim continued to talk with him. During one
of their calls, he offered to meet her in a public place to
help her with her car. He told her that another person would
be there to calm any fears she might have. Initially, the
victim resisted. Later, she relented. On September 7, the
victim drove her car to a public parking lot where she met
defendant. The third person was not there. Defendant got in
the backseat of the victim's car and told her to drive to
a city park. When the victim's cell phone rang, defendant
told her not to answer it, put a knife to her throat, and
once more accused her of seeing other men.
they got to the park, the victim began driving her car into
parked cars, hoping that someone would call the police.
During the ensuing confusion, the victim tried to escape.
Defendant, however, managed to get into the front seat and
grab the victim's braids before she could get completely
out of the car. He drove off, holding the victim by her
braids and dragging her along the road for several feet until
her braids broke.
night, defendant abandoned the victim's car, broke into
her house, and barricaded himself inside. The next day, the
police discovered him in the house, which led to a nine-hour
standoff during which the police initially tried to get
defendant to give himself up and later forcibly entered the
house and placed defendant under arrest. The trial [300
Or.App. 196] court's rulings admitting evidence regarding
the standoff are the subject of defendant's second and
third assignments of error, which raise related but separate
DEFENDANT'S SECOND ASSIGNMENT OF ERROR
trial, defendant filed a motion in limine arguing
that any evidence regarding the standoff should be limited
under OEC 403. In addressing that motion, the trial court
issued what it described as a preliminary ruling; it provided
general guidelines for the parties to follow, and it
expressly advised defendant that he should object at trial if
the evidence of the standoff became either cumulative or
unduly prejudicial. At trial, defendant renewed his motion
in limine before any testimony regarding the
standoff was offered, and the trial court reaffirmed its
pretrial ruling. Three witnesses then testified about the
standoff without further objection. Some time after the trial
had moved on to other matters, defendant raised an OEC 403
objection to the standoff testimony that the three witnesses
previously had offered. The trial court overruled that
appeal, defendant appears to assign error to each of those
rulings. In arguing that the trial court erred in
making those rulings, defendant treats the three rulings as
if they were synonymous. However, the record before the trial
court when it made the rulings and the substance of those
rulings differ. Beyond that, each ruling arose in a different
procedural posture. For that reason, we discuss each ruling
separately. See Strawn v. Farmers Ins. Co., 350 Or.
336, 347-50, 258 P.3d 1199, adh'd to on recons,
350 Or. 521, 256 P.3d 100 (2011), cert den, 565 U.S.
1177 (2012) (explaining the need to focus on the specific
arguments raised and the precise evidentiary rulings);
Hayes Oyster Co. v. Dulcich, 170 Or.App. 219, 224,
12 P.3d 507 (2000) (same).
Or.App. 197] A. Defendant's Pretrial ...