[DV_listserv] Another (good) PBA case!

[Domestic Violence issues]

http://www.publications.ojd.state.or.us/docs/A154709.pdf

State v. Johnson, 281 Or App 51 (2016) is a case that was decided on the same day as Tena (see below). In Johnson, the defendant was convicted of crimes associated with her crashing her car into the victim's parked car. At trial, the state presented evidence that prior to the collision, defendant made threats to the victim over the phone. On appeal, the defendant challenges the court's denial of her motion to exclude the other acts evidence. As in Tena, the court in Johnson rejected the defendant's arguments that the other acts evidence did not pass the Johns/Moen test.  The court stated, "Tena establishes that, following Turnidge, evidence of "hostile motive" need not meet the Johns test."

Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

From: Greenawald Erin S
Sent: Thursday, September 15, 2016 9:31 AM
To: 'dv_listserv at listsmart.osl.state.or.us' (dv_listserv at listsmart.osl.state.or.us)
Subject: PBA case--a good one!

Good Morning!

Kudos to Doug Petrina (DOJ Appellate Division) for successfully navigating the minefield that is Other Acts evidence litigation. (And also to the prosecutor in Lane County who argued and tried the case in the first place!)

This one is a doozy!

Facts: Defendant was charged with Assault against his girlfriend. Pre-trial, the State moved to admit evidence of Defendant's prior assaults against two ex-partners on two theories: Doctrine of Chances and Hostile Motive, under 404(3). (This case was tried prior to State v. Williams). The Court held a pre-trial motion hearing. The State asked the Court to defer ruling until the State had proven, at trial, that it had established that the defendant had committed the current offense. After it presented evidence at trial, the State requested the Court's ruling on the PBA motion. The Court granted the State's motion and allowed the evidence of past assaults under Johns (Doctrine of Chances) and Moen (Hostile Motive).

The Defendant was convicted.

On Appeal, Defendant argues that the trial court erred in admitting the evidence under 404(3) and that, even if the evidence was admissible, the trial court plainly erred by failing to give a proper Leistiko/Pitt instruction.

THEN, after Defendant filed his opening brief, the Supreme Court issued its ruling in Williams.  Defendant filed a supplemental brief arguing that the trial court committed plain error by admitting the evidence of the prior two assaults without balancing (under 403).

Held: The COA only addresses the Defendant's challenge to the admission of evidence under Moen and AFFIRMS the conviction.

The Defendant had argued that the trial court errored by not applying the Johns six-part test to the hostile motive analysis (under Moen).  In Moen case, the court DID apply the Johns test. However, more recently, in Turnidge, the Supreme Court overruled that aspect of Moen, "[t]he analytical framework that Johns announced was specific to the 'doctrine of chances' relevancy theory at issue in that case (Moen)." The Turnidge court explained that "[p]rior bad acts evidence can be relevant to a defendant's intent on theories other than the doctrine of chances."

Because the evidence (in the current case) was admitted under a Hostile Motive theory (and not Doctrine of Chances), the trial court did NOT err in not providing an adequate Leistiko/Pitt instruction. Further, the trial court did NOT commit plain error when it did not do a balancing analysis under OEC 403. In Turnidge, the court stated, "if a trial court determines that prior bad acts evidence is relevant to a non-propensity purpose under OEC 404(3), the court, on a proper motion, must weigh the probative value of the evidence against its potential to unduly prejudice the defendant."  The Defendant, at trial, did not request such balancing to occur.

Phew.

http://www.publications.ojd.state.or.us/docs/A154735.pdf



Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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