[DV_listserv] PBA case

[Domestic Violence issues]

EVIDENCE-OTHER CRIMES / APPEALS-PLAIN-ERROR REVIEW: In light of Leistiko,
the trial court in domestic-violence prosecution committed "plain error" when it admitted
evidence of defendant's similar assaults on previous girlfriend.

State v. Jones, 258 Or App __, __ P3d __ (August 14, 2013) (Lane) (AAG Tiffany
Keast). Defendant was prosecuted for numerous serious offenses for torturing, assaulting,
strangling, and sodomizing his wife over the course of several weeks in 2009. According to the
victim, he accused her of being unfaithful and told her he was making her less attractive to other
men. At trial, the state presented evidence of similar crimes he had committed against JM, his
previous girlfriend, two years before, based on the same motive. Defendant objected solely on
the ground that the evidence did not meet the Johns requirements. The trial court (Judge Debra
Vogt) overruled the objection. Defendant's defense was that he was not the one who assaulted
the victim, and the jury found him guilty. He appealed and argued that the trial court erred by
admitting the prior-crimes evidence involving JM. The Court of Appeals affirmed the
convictions, concluding that defendant had failed to preserve the argument he raised on appeal.
Meanwhile, the Oregon Supreme Court decided State v. Leistiko, 352 Or 172, modified on
recons, 352 Or 622 (2012) (defendant's prior bad acts not admissible to prove intent unless the
defendant concedes the actus reus or the jury is instructed that it cannot consider the evidence for
proof of intent unless it first finds that the actus reus occurred). The Supreme Court then
remanded this case for reconsideration in light of Leistiko.


Held: Reversed and remanded (Haselton, C.J.). [1] The Court of Appeals reaffirmed its
previous ruling that defendant's claim of error is not preserved. [2] But, light of Leistiko, the
trial court committed plain error when it admitted the prior-crimes evidence: "Here, as in
Leistiko, defendant did not concede that he had engaged in the actus reus; nor was the jury
instructed to consider the uncharged misconduct evidence as evidence on the issue of intent only
if they first found that defendant had committed the actus reus. Those circumstances are patent
and uncontroverted, and the application of Leistiko's principles on this record is not reasonably
in dispute. Accordingly, in light of Leistiko, the error in admitting JM's testimony and
submitting it to the jury without the requisite qualifying instruction was reviewable plain error."
[3] "Here, the gravity of the error and the nature of the case militate strongly in favor of reversal.
In particular, we agree with defendant that the details of the prior assault on JM-and in
particular the testimony that defendant used pliers on her nipples-was highly inflammatory."
http://www.publications.ojd.state.or.us/docs/A142958A.pdf


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