State v. Barnum

Citation970 P.2d 1214,157 Or.App. 68
PartiesSTATE of Oregon, Respondent, v. Byron Franklin BARNUM, Appellant. 92CR0200; CA A96131.
Decision Date04 November 1998
CourtCourt of Appeals of Oregon

Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Sally L. Avera, Public Defender. With him on the reply brief was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, P.J., and HASELTON and WOLLHEIM, JJ.

De MUNIZ, P.J.

Defendant appeals his convictions and sentence for one count of arson in the first degree, ORS 164.325, and two counts of burglary in the first degree, ORS 164.225. The issues are whether evidence concerning defendant's 1979 attempted murder conviction in California was properly admitted under OEC 404(3) to prove the identity of the perpetrator in this case and whether the trial court erred when it denied defendant's motion to merge his two burglary convictions. We hold that the trial court did not err in admitting the evidence and affirm defendant's arson conviction. However, the trial court did err in failing to merge defendant's burglary convictions. Accordingly, we remand for merger of the burglary convictions and resentencing.

Because the court found defendant guilty, we state the facts in the light most favorable to the state. State v. Pinnell, 311 Or. 98, 100, 806 P.2d 110 (1991); State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990).

In August 1990, Gwen Bindellino was a claims representative for Allstate Insurance. At that time, she was assigned to a case involving a lawsuit brought by defendant against one of Allstate's insureds. Communications between Bindellino and defendant regarding that case were either by telephone or by mail.

In the autumn of 1990, Bindellino informed defendant that the statute of limitations on his claim would run in mid-December. That upset defendant, and he accused Bindellino of waiting until the "eleventh hour" to inform him. Later, on various occasions, defendant revealed knowledge of confidential or esoteric information concerning aspects of his case against Allstate's insured, the insurance business, and Bindellino herself, that was contained in Bindellino's office and files. Bindellino later discovered evidence that someone had entered her office after business hours.

On January 18, 1991, defendant was arrested in the office of a Dr. Sloan. 1 At the time of his arrest, defendant was wearing a stocking cap and was in possession of specialized burglary tools. He gave the police a false name and a birth date of March 4, 1950, which was Bindellino's birth date, something she had never told defendant.

On June 20, 1991, Bindellino's home was severely damaged by a "fully involved" fire. At that time, Bindellino was on a two-week vacation in Hawaii, the dates of which had been marked on her office calender. A fire investigator determined that the fire was caused by arson. Motor oil, gasoline and a combustible waterproofing sealant were used to aid in the creation of at least four separate fires in the house. The house was locked when the fire department arrived. In addition to the near total destruction of her furniture by fire, a key rack, house keys and several letters concerning her relationship with a fellow insurance adjuster were missing.

On the afternoon of the fire, Bindellino's insurer received an anonymous letter that accused her of planning to set fire to her own house. The letter mentioned her middle name, Social Security Number, and referred to her relationship with the other insurance adjuster, a relationship known only to the two participants and Bindellino's parents. Her fire insurance policy was kept with her private papers at her home. Bindellino's Social Security card and ATM card (along with its PIN) were left on her kitchen counter while she was in Hawaii. While she was away, someone used the ATM card in Grants Pass to withdraw $400 from her account.

Shortly after the fire, the local fire department received an anonymous letter asserting that Bindellino had hired its author to set fire to her house. The missing keys that opened the dead bolts at Bindellino's house were enclosed with the letter.

Defendant was charged and tried for the Bindellino fire and two other fires that also involved accusatory letters. In a bench trial, the court acquitted defendant of all charges involving the other two fires but convicted him of arson in the first degree and two counts of burglary in the first degree on the charges involving the Bindellino fire.

Defendant first assigns error to the trial court's admission of evidence of his 1979 conviction in California for attempted murder as signature crime evidence under OEC 404(3) to prove the identity of the perpetrator in this case. The trial court ruled that the accusatory letters defendant sent to authorities before and after the mailbombing of his college professor at California State University at Hayward, for which he was convicted of attempted murder in 1979, were admissible as signature crime evidence for the charges involving the Bindellino fire, but not admissible for the other two fires for which he was also being tried. In the other two crimes, accusatory letters were received following the crime but not before it. Our task is to determine if the record supports the trial court's ruling that the letters before the crime make unique the modus operandi of the California crime and the Bindellino arson. Pinnell, 311 Or. at 109, 806 P.2d 110.

In State v. Johnson, 313 Or. 189, 195, 832 P.2d 443 (1992), the Supreme Court formulated a three-part test to determine the admissibility of "other act" evidence under OEC 404(3): 2

"(1) The evidence must be independently relevant for a noncharacter purpose; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403."

Evidence of "other crimes, wrongs or acts" may not be admitted to prove propensity; however, if the evidence is independently relevant on a noncharacter theory such as identity, it may be admissible for that limited purpose under OEC 404(3). Pinnell, 311 Or. at 109, 806 P.2d 110.

Under OEC 404(3), we must first determine if the "other crimes" evidence is independently relevant for a noncharacter purpose. Here, the asserted purpose of the evidence is to identify defendant as the perpetrator of the Bindellino arson based on the similar modus operandi of the criminal in that case and the California case. Under the test established in Pinnell, we must determine if the prosecution established by a preponderance of the evidence that (1) there is a very high degree of similarity between the other crime and the charged crime; and (2) the methodology is so distinctive as to earmark the acts as the handiwork of the accused, the so called "mark of Zorro" test. Pinnell, 311 Or. at 109-10, 806 P.2d 110 3 There are three factors to consider under the first prong of the test: (1) the time lapse between the two crimes; (2) the geographic distance between the two crimes; and (3) the resemblance between the methodologies of the two crimes. Id. at 110, 806 P.2d 110.

According to defendant, the first two of these factors, time lapse (14 years) and geographic distance (450 miles) between the two crimes, substantially decrease the probative value of the evidence. Defendant argues that the third factor, the resemblance between the methodologies of the two crimes, also militates in favor of excluding the evidence. He points out that, in the California crime, the intent of the crime was to cause the victim's death, whereas here only property damage was intended in the charged crime. He also points to the fact that the perpetrator was not present at the California crime, whereas here the perpetrator was present. The only "appreciable similarity" defendant concedes between the two crimes is that someone wrote letters that tried to focus official suspicion onto specific persons.

As to the "mark of Zorro" test, defendant claims that the language in Pinnell, stating that "the methodology is attributable to only one criminal" must be taken literally. 311 Or. at 110, 806 P.2d 110 (emphasis defendant's). Defendant goes on to argue that the content of the letters is sufficiently different, as the Oregon letters were sent anonymously but the California letters contained forged signatures. He adds that he had met the victim in the California case face to face, but not Bindellino. Defendant also points to State v. Crescenzi, 152 Or.App. 567, 953 P.2d 433 (1998), in which an anonymous letter was sent to focus suspicion on someone other than the defendant in the murder of his wife. Because the state did not accuse the defendant there of authoring the letter, defendant argues, the state must concede that such a modus operandi is not unique because more than one criminal employs it. Defendant does, however, concede that one factor in Crescenzi, that no letter was sent before the commission of the crime, does distinguish it from the facts here.

The state argues that the trial court followed the proper steps in determining the admissibility of the California crime evidence. The state points out that the three factors in Pinnell used to determine the similarity between the charged and uncharged crimes are merely factors in the trial court's discretionary determination and cannot be considered in isolation. According to the state, when the defendant is known to have been in the relevant place at the relevant time, the time lapse and geographic distance are not particularly important. The state...

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  • State v. Leach
    • United States
    • Oregon Court of Appeals
    • 30 d3 Agosto d3 2000
    ...identity in the true "signature crime" context. See, e.g., State v. Pinnell, 311 Or. 98, 110, 806 P.2d 110 (1991); State v. Barnum, 157 Or.App. 68, 73-74, 970 P.2d 1214 (1998), rev. allowed 328 Or. 594, 987 P.2d 514 8. Defendant also generally objected that litigating whether the prior misc......
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