State v. Arnold

• Decision Date: 02 April 2014
• Docket Number: CF110240,A149987.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. David Ray ARNOLD, Defendant–Appellant.
• Court: Oregon Court of Appeals

262 Or.App. 22

324 P.3d 538

STATE of Oregon, Plaintiff–Respondent,

v.David Ray ARNOLD, Defendant–Appellant.

CF110240; A149987.

Court of Appeals of Oregon.

Argued and submitted Oct. 16, 2013.

Decided April 2, 2014.

Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jake J. Hogue, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

ORTEGA, P.J.

After a jury trial, defendant was convicted of unauthorized use of a vehicle, ORS 164.135; attempting to elude a police officer, ORS 811.540; two counts of first-degree criminal mischief, ORS 164.365; unlawful possession of methamphetamine, ORS 475.894; recklessly endangering another person, ORS 163.195; and reckless driving, ORS 811.140. On appeal, defendant contends that the trial court erred in admitting evidence of his prior bad acts under OEC 404(3) to prove his identity and that this error was not harmless. We agree and, therefore, reverse and remand.

We review a trial court's ruling on the admissibility of evidence under OEC 404(3), for legal error. State v. Garrett, 350 Or. 1, 6, 248 P.3d 965 (2011) (citing State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (1999)); see also State v. Pinnell, 311 Or. 98, 109 n. 17, 806 P.2d 110 (1991) (whether prior bad act evidence is admissible “is a question of logical relevancy which the trial judge must decide under OEC 404(1)”). As the proponent of the evidence, the state has the burden of demonstrating that the proffered evidence was relevant and probative of some noncharacter purpose. State v. Pitt, 352 Or. 566, 576, 293 P.3d 1002 (2012).

According to testimony at trial, late one night in August 2011, the victim saw a man with facial hair and wearing a white baseball cap steal his white 1991 GMC Jimmy (the GMC) from a parking lot. The victim immediately called 9–1–1 and a police officer, Palmer, responded. As Palmer and the victim were speaking, somebody drove the GMC by their location, at which point Palmer got into his patrol car to pursue the vehicle.

While pursuing the GMC, Palmer called for backup and another officer, Wolverton, joined the chase. Eventually, the GMC turned down a dead-end street and the officers parked their patrol cars so as to block the GMC from leaving. The driver of the GMC then put the car into reverse and crashed into Palmer's patrol car at about 35 or 40 miles per hour, temporarily disabling it. The driver then drove forward through the dead end, onto a river walkway, knocking over a light pole as he drove away.

Shortly thereafter, Palmer saw a plume of dust near a baseball field and discovered the GMC. He then alerted Wolverton, who drove to that area. A few minutes after Wolverton parked, he saw defendant walk across the street. Defendant was calm, but sweating heavily. When asked, defendant denied that he had been the driver of the GMC. He told the officers that he was coming from a friend's house and was heading home. Defendant admitted that he had used methamphetamine earlier that evening.

Wolverton arrested defendant, searched him, and found a pack of Camel 99 cigarettes with a lime-green Bic lighter; the victim later confirmed that that cigarette pack and lighter matched those that had been taken from his GMC. Inside the GMC, the officers found a white baseball cap and two backpacks that did not belong to the victim. One of the backpacks contained envelopes that were addressed to defendant as well as drug paraphernalia, which later tested positive for methamphetamine.

At trial, defendant relied on an alibi defense; he presented testimony from his friend that he had been with the friend at the time of the vehicle theft and chase. In addition, his friend testified that, a few days before the GMC was stolen, their backpacks had been stolen from a campsite near the river and that defendant lived near the location in which the stolen GMC was abandoned. His friend also testified that they had purchased a pack of Camel 99s the day the GMC was stolen and that the pair always carried a Bic lighter.

Over defendant's objection, the court granted the state's pretrial motion to allow evidence of prior uncharged acts-that is, acts for which defendant has not been charged within this proceeding-of defendant's misconduct for the purpose of identifying defendant as the perpetrator. The court explained that the similarities between the uncharged acts and the charged act were “of such nature and circumstance that they bear the mark of an individual * * *. Essentially, the mark of Zorro.” ¹ Pursuant to that ruling, the following evidence was admitted.

Palmer had had a previous encounter with defendant in January 2007, when he received information that an Oldsmobile had been stolen and that defendant was seen driving it. When officers tried to pull over defendant, he drove the Oldsmobile into a patrol car, and then he reversed at a high speed and hit another officer's patrol car, which was temporarily disabled from the impact. Defendant then started to drive away, but he lost control of the car, and crashed into a telephone pole, after which he fled on foot. Eventually, Palmer found defendant hiding in the backyard of a private residence and arrested him. Later, defendant told Palmer that he did not mean to run into the officer's car and that he was not a violent person. He also explained that he had traded drugs for the vehicle and that he had tried to stay off of main roads to avoid attention.

The jury found defendant guilty, and he appeals the resulting judgment of conviction. On appeal, defendant argues that the trial court erred in admitting evidence of his prior bad act from 2007 because that evidence was inadmissible propensity evidence. Defendant contends that the prior act and the charged acts are not sufficiently similar and distinctive in methodology so as to establish that the acts constitute a modus operandi that is probative of identity. According to the state, the evidence was properly admitted under 404(3) because the crimes are sufficiently similar and distinctive so as to help establish defendant's identity as the driver of the stolen GMC.

Under OEC 404(3), evidence of a defendant's other crimes, wrongdoings, or acts are not admissible in a criminal case to show the character of a defendant or his or her propensity to commit crimes. Such evidence, however, may be admissible “for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” OEC 404(3).

In order to determine the admissibility of evidence of prior bad acts under OEC 404(3), a court must determine that the evidence is relevant for a noncharacter purpose-such as, in this case, for establishing identity by demonstrating that the prior acts are so similar and distinctive that they are indicative of a modus operandi.²Pitt, 352 Or. at 576, 293 P.3d 1002.

To admit evidence based on a modus operandi theory, “much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies or rapes.” Pinnell, 311 Or. at 109, 806 P.2d 110 (citations omitted). The proponent must prove by a preponderance of the evidence that “(1) there is a very high degree of similarity between the charged and uncharged crimes; and (2) the methodology is attributable to only one criminal, that is, the methodology is distinctive so as to earmark the acts as the handiwork of the accused.” Id. at 109–10, 806 P.2d 110. In deciding whether there is a high degree of similarity between the charged and uncharged crime, three factors are relevant: “(1) the time lapse between the two crimes; (2) the geographic distance between the two crimes; and (3) the resemblances between the methodologies of the two crimes.” Id. at 110, 806 P.2d 110 (citations omitted). “The third factor, the resemblances in methodology, is the most important consideration. * * * If both crimes are committed in the same, unique fashion, [that] factor alone is sufficient to support a permissible inference of the identity of the two criminals.” Id. at 110–11, 806 P.2d 110 (citations and internal quotation marks omitted). A high degree of similarity, however, “must be so distinctive that both crimes can be attributable to one criminal. In other words, the modus operandi must be unusual.” State v. Barnum, 157 Or.App. 68, 75, 970 P.2d 1214 (1998), rev'd on other grounds,333 Or. 297, 39 P.3d 178 (2002) (agreeing with expert testimony that sending accusatory letters casting suspicion on other people both before and after the commission of a crime was distinctive enough to constitute a signature crime); see also State v. Langley, 314 Or. 511, 517, 840 P.2d 691 ...