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State v. Brown

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TONY LAMAR BROWN, Defendant-Appellant.

          Submitted August 9, 2019

          Multnomah County Circuit Court 16CR55091, 16CR62746; Leslie G. Bottomly, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the briefs for respondent.

          Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

         Case 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.

         Affrmed.

         [300 Or.App. 194] KISTLER, S. J.

         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 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.[1]

         The 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.

         On 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.

         [300 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.

         After 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.

         When 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.

         That 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 issues.

         I. DEFENDANT'S SECOND ASSIGNMENT OF ERROR

         Before 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 objection.

         On appeal, defendant appears to assign error to each of those rulings.[2] 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).

         [300 Or.App. 197] A. Defendant's Pretrial ...


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