State v. Anderson

• Decision Date: 02 August 2018
• Docket Number: CC 123592 (SC S064633)
• Citation: 363 Or. 392,423 P.3d 43
• Parties: STATE of Oregon, Petitioner on Review, v. Adam Francis ANDERSON, Respondent on Review.
• Court: Oregon Supreme Court

363 Or. 392

423 P.3d 43

STATE of Oregon, Petitioner on Review,

v.Adam Francis ANDERSON, Respondent on Review.

CC 123592 (SC S064633)

Supreme Court of Oregon.

Argued and submitted September 22, 2017.

August 2, 2018

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief on behalf of petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief on behalf of respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, and Nelson, Justices.^**

KISTLER, J.

A trial court may exclude relevant evidence if the "probative value [of the evidence] is substantially outweighed by the danger of unfair prejudice." OEC 403. In this case, the trial court admitted a booking video of defendant over an OEC 403 objection because the video bore on the central issue in the case—the identity of the person who had taken money from the victim's bank account. A divided Court of Appeals reversed the trial court's ruling, not because the trial court had abused its discretion in admitting the video but because it had failed to sufficiently explain the basis for its ruling. State v. Anderson , 282 Or. App. 24, 386 P.3d 154 (2016). We allowed the state's petition for review to consider that recurring issue. We now reverse the Court of Appeals decision and affirm the trial court's judgment.

Three people—Debra, Michelle, and Charles—shared a house in Lincoln City. Defendant needed a place to stay, and Debra and Michelle agreed that defendant could "crash" at their house for a couple of days.¹ The weekend after defendant began staying at their house, Debra tried to withdraw money from her Wells Fargo bank account at an ATM but was unable to do so.

On Monday morning, Debra checked with Wells Fargo and learned that someone had withdrawn $300 from her account at a Wells Fargo ATM and that the personal identification number (PIN) for her account had been changed. She also learned that, six or seven minutes after $300 had been withdrawn from the Wells Fargo ATM, someone had attempted to withdraw additional funds from her account at a nearby Bank of America ATM.

After learning that information, Debra went home and found that her emergency ATM card, with her PIN attached, had been taken from the dresser drawer in her bedroom. She also realized that defendant had moved out of her house on Sunday rather than later, as he initially had planned.

Debra notified the police, who obtained a surveillance video from the Bank of America ATM.² The police showed Debra and Michelle stills taken from the video, which depicted a person attempting to use Debra's ATM card at the Bank of America ATM and also walking away from the ATM. The stills either do not show the person's face or do not do so clearly. Despite that fact, both Debra and Michelle identified the person in the stills as defendant, based on the clothing that the person was wearing and the person's general physical resemblance (height and build) to defendant.

When asked at trial what stood out to her about the person depicted in the stills, Debra testified:

"The red gloves, the shoes he's wearing, the pants that he's wearing, uh, the coat. I mean, the stuff is what I had seen [defendant] in all the days that he had been staying at our house. A hoodie. A gray hoodie, which is underneath this."

Both Debra and Michelle described the red gloves pictured in the stills as distinctive; there is a print of a skeleton's fingers on the gloves, which were similar to gloves that Debra and Michelle had seen defendant wear.

On cross-examination, defense counsel brought out that the person's face in the stills could not be seen clearly, that the clothes were relatively common, and that it was not completely clear from the stills how tall the person was. Defense counsel also elicited testimony from Debra and Michelle that they had had "prior theft issues at the house," that their roommate Charles had a gambling problem, and that Charles had twice stolen the rent money. Both Debra and Michelle testified, however, that the person in the stills did not resemble Charles, who had a moustache.

To support its claim that defendant was the person depicted in the stills, the state offered a booking video of defendant taken approximately two weeks after the withdrawal from Debra's bank account. The state wanted to introduce the video to show that defendant was wearing the same or similar clothing in the booking video as the person depicted in the Bank of America stills. Defendant objected to the video's admission, and the parties engaged in the following colloquy with the court outside the jury's presence:

"[DEFENSE COUNSEL]: [What] I'm expecting [the state] to show here is there's some, um, some video of [defendant] walking into the jail after he was arrested. So he's kind of, uh, in handcuffs, walking into the jail. There's no audio.

"* * * * *

"I guess what my concern becomes is it's showing [defendant] in custody. Just as in trial here, um, you know, the jury's not to know custodial status, seeing him, you know, with the walk of shame, handcuffs on, being taken to the jail I think creates a, creates a problem for us. Even understanding the State's trying to show it for what he's wearing, nonetheless, it's, it's certainly showing him in, in police custody, and that's where my, um, my concern lies.

"THE COURT: Is that an objection?

"[DEFENSE COUNSEL]: Yes. That's my—my objection is to the, uh, admissibility of this, of this video on those grounds.

"THE COURT: And, and the—and what's the objection? I mean, what's—what rule do you cite to say it's [not admissible]?

"[DEFENSE COUNSEL]: [I] guess it always comes down to, in a, in a relevance type of situation, the, uh, comparing the relevance, which I'll, I'll concede there is some relevance there because there's, uh—we're talking about the clothing, but versus the, the prejudicial value here.

"Now the jury can certainly never know while I'm in trial, you know, we don't bring [defendant] in with the orange jumpsuit because, uh, the, the jury can never know. It's prejudicial for them to know that he's in custody on this.

"I think we have the similar problem, um, with the, with the parade into the jail. I think this becomes more problematic, because I think that he was, he was brought in on a probation violation, um, as he was brought into the jail. So it's not just like a DUI situation where [you] see the video of the person being arrested right then. This is a, a later video of when he's brought in. And, um, I, I guess my concern is the prejudicial effect. That this creates, um, weight against the, the relevance value of it. It's, um, it's too prejudicial showing, frankly, my client's custody status.

"THE COURT: And, uh, just from the file, I'm going to guess you're going to tell me that the arrest was at 7:30 p.m. on November 6, 2012.^[3]"[DEFENSE COUNSEL]: I—I'd have to look ***.

"THE COURT: So almost four weeks—three and a half weeks after the event.^[4]

"[DEFENSE COUNSEL]: Yes. It wasn't contemporaneous with the event at all.

"* * * * *

"[PROSECUTOR]: I'm pretty sure it was November 2nd.

"* * * * *

"THE COURT: [Y]our response to *** [defense counsel's] objection?

"[PROSECUTOR]: Okay. So it's, um, two-fold. Obviously this is very, um, relevant information that the State is seeking to elicit. The fact that he was wearing the same, um, clothing, essentially, very similar clothing to, um, the time in the video.

"We know that, um, Defendant actually left a duffle bag with other clothing at somebody else's house, so he was missing clothing. So the fact that several days later he's in this, uh, real similar outfit is very relevant to the State's case to prove identity which, obviously, as [defense counsel] has pointed out time and time again, is the central issue of the case. So, um, it's highly relevant for that purpose.

"[While] I understand that showing, um—or alluding to the Defendant's current custody status, whether he's in custody now or not, um, is prejudicial and is, is error, I think talking about the booking process and the fact that, yes, there are videos in the jail, everybody has to get booked on charges, which is the, the line of questioning I was going to ask [my police officer witness], I don't see how that is so, um, prejudicial in this case, um, to exclude this highly, um, probative, relevant information, Your Honor.

"THE COURT: Um, I'm thinking—How long is the video?

"[PROSECUTOR]: It's maybe a minute. The portion I'm going to show [is about a minute].

"THE COURT: [I'd like to see what you want to offer]. Frankly, it'll help me decide the balancing issue."

After the trial court viewed the video, the colloquy continued.

"[PROSECUTOR]: That's it.

"THE COURT: Um, could I take another look? I want to get a—

"[PROSECUTOR]: Yes.

"THE COURT: Maybe if you could stop when he's coming through the doorway there, just so I could take a look at the clothing and—"

After the court viewed the booking video a second time, the colloquy continued.

"THE COURT: So when he gets kind of right here in front of that gray cabinet, it'll, it'll see pants and shoes and top.

"Right there.

"[PROSECUTOR]: So you see the dark hoodie, the same fading type of jeans, and the same shoes. Same type of shoes.

"*** Your Honor, for the record, I just wanted to point [out that the time stamp shows that this video was taken] November 2nd of 2012.

"* * * * *

"THE COURT: [That's] what? Five days closer to the event in question. About twenty days after [the incidents with the ATM card].

"Um, um, it's relevant. I'll give, uh, a cautionary instruction. So I'm going to overrule the objection."

After the trial court overruled defendant's objection, the state introduced the video through a sheriff's deputy, who described it to the jury as a booking video that is taken "when peopl...