[DV_listserv] PBA Evidence

[Domestic Violence issues]

EVIDENCE-PRIOR BAD ACTS: In case of murder-by-stabbing, trial court correctly
admitted evidence that defendant was convicted of assault for stabbing the victim nine
months earlier.

State v. Olson, 263 Or App __, __ P3d __ (May 29, 2014) (Marion) (AAIC Jamie
Contreras/former AAG Jeremy Rice).

FACTS: Defendant stabbed her husband to death, and was charged with murder. At trial,
the state filed a motion asking to introduce evidence that, nine
months earlier, defendant had pleaded guilty to assault for stabbing the victim; the state argued
that evidence was relevant to her intent to murder the victim. Defendant argued that the prior-act
evidence was inadmissible because the two events were insufficiently similar. The trial court
(Judge Claudia Burton) allowed the state to introduce the prior-acts evidence under OEC 404(3),
and instructed the jury that it could consider that evidence "only for the purpose of deciding
whether the defendant acted with the mental state, intentionally, that is alleged in the murder
charge in this case." The jury found defendant guilty.

HELD: Affirmed (Sercombe, J.). The trial court correctly admitted the prior-acts evidence.
[1] The two incidents were "extremely similar" and therefore were relevant under State v. Johns,
301 Or 535 (1986). [2] Admission of the prior-acts evidence did not violate due process,
because it was relevant to proof of defendant's intent, an element of the crime charged.
http://www.publications.ojd.state.or.us/docs/A150290.pdf

Note: The heightened relevancy showing required under Johns might not apply to prior acts
of the defendant, which arguably need only be relevant under OEC 401 to be admissible
under OEC 404(4). Sr. AAG Dave Thompson is available at (503) 378-4402 to discuss pending
cases that address that issue.

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