State v. Hagner
| Decision Date | 12 April 2017 |
| Docket Number | A156340 |
| Citation | 284 Or.App. 711,395 P.3d 58 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Wayne Raymond HAGNER, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.
Defendant appeals a judgment of conviction for murder, ORS 163.115, for intentionally shooting the victim, his wife, raising five assignments of error. We write to address defendant's first and second assignments of error, in which he contends that the trial court erroneously admitted prior acts evidence that, in the week before the crime, defendant (1) angrily yelled at the victim when she had locked him out of their house during a dispute and (2) slapped the victim during another dispute.1 Defendant argues that the evidence should not have been admitted under OEC 404(3),2 because it was not relevant for any purpose other than to show defendant's propensity to engage in bad conduct. The state responds that the evidence was properly admitted to show defendant's hostile motive and his intent to shoot the victim. We affirm.
"We evaluate the denial of a defendant's motion to exclude evidence of other acts in light of the record made before the trial court when it [made its decision]." State v. Wright , 283 Or.App. 160, 162, 387 P.3d 405 (2016) (brackets in original; internal quotation marks omitted). We review the trial court's ruling on the relevance of evidence for errors of law. State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999).
One afternoon, defendant called his friends Juanita and Otto Vernon Epping-Fate on the phone. Defendant sounded distressed, and the Epping-Fates decided to go to defendant's house to make sure he was okay. When they arrived, defendant met them at the door, and they went inside and sat down on the couch in the living room. The victim was in the living room with defendant.
Defendant was anxious and nervous. He walked around the house, periodically sitting down but almost immediately getting back up, and, when Juanita spoke to him, he would repeatedly say the last word she said back to her. The Epping-Fates prayed with defendant, which calmed him down for a moment, but he soon became agitated again. Juanita, who was a retired nurse and had worked in a mental health unit, was concerned that defendant was having a medical or mental health crisis and asked to take him to the hospital.
Defendant asked what they would "do to [him]" at the hospital, and, after Juanita assured him that they would help him to settle down, he agreed to go. The victim, intending to go with them, said that she was going to get her coat, purse, and shoes and left the living room and went through the kitchen into the bedroom. After she left, defendant sat down at a desk. When the victim exited the bedroom a few minutes later, Juanita noticed that defendant was holding a gun. Still sitting at the desk, defendant fired a shot between his feet. Juanita called to Otto that they should go, and she ran out of the house. As she was leaving, she saw defendant raise the gun.
Otto did not leave the house with Juanita, and he saw defendant fire the gun a second time. After defendant fired the second shot, he told Otto that he "should go now." Otto could not see the victim from where he was sitting, and he asked defendant if she was okay. Defendant said that she was fine, and Otto left and drove home with Juanita. When they arrived at their home, Juanita called the police.
North Bend Police Sergeant Young responded to defendant's house. When he arrived, defendant was standing outside the front door. He approached defendant and asked how defendant was and whether he had fired a gun into the floor. Defendant responded that he was fine and that he had not fired a gun. Young also asked defendant if he had been having any mental health issues, and defendant responded that he had not. Young thought that defendant appeared to be "visibly unnerved" and "anxious." Further, he was concerned because defendant had a spot of dried blood on his nose but had no visible wound.
Young also found it unusual that the victim had not come out of the house since he had arrived. Young knew the victim, and he thought it was out of character for her not to come to the door when someone arrived at the house. Young asked defendant if the victim was home, and defendant responded that she had gone out and he did not know where she was.
Young walked up to the screen door of the house and repeatedly called out to the victim, but he got no response. When Young approached the door, defendant became more anxious and agitated. Young decided to enter defendant's house to perform a welfare check of the victim, leaving defendant with a backup officer. As Young opened the door, defendant asked if Young "need[ed] a search warrant," and Young responded that he did not under the circumstances.
Inside the house, Young discovered the victim lying face down in a pool of blood in the kitchen. She was still warm, but she had no pulse and was not breathing. Young then went back outside and placed defendant under arrest. Defendant was subsequently indicted for murder and felon in possession of a firearm.
Defendant moved to exclude certain evidence, including the prior acts evidence that he challenges in this appeal: testimony from his next door neighbor, Anderson, and his daughter, Courtney. Anderson heard an altercation between defendant and the victim four days before the shooting. She heard defendant outside of the house that he lived in with the victim, "screaming at her" because "[h]e had been locked out." Anderson had set up a camera to record the incident and then left the room. One week before the shooting, Courtney also overheard an altercation between defendant and the victim. She heard a slapping sound and the victim say, "You slapped me," to defendant.
Defendant argued, both in the memorandum supporting his motion and at the pretrial hearing, that evidence of both of those incidents was not admissible under OEC 404(3), because it was not relevant to any nonpropensity purpose. Defendant conceded that he had shot the victim, but argued that he had done so accidentally, rather than intentionally. As to Anderson's testimony, defendant contended that the evidence was not relevant to rebut defendant's contention that he had accidentally shot the victim because the evidence was " Defendant asserted that that was not relevant to show "that you intended, on this one occasion, to take a pistol out and shoot her in the head and kill her." Similarly, defendant asserted that Courtney's testimony was also not relevant to his intent, because the fact that defendant had slapped the victim during an argument did not make more probable that he had intentionally, rather than accidentally, shot her in the head.
In response, the state argued that evidence of both prior acts was relevant to show that defendant had acted with the requisite intent when he shot the victim, relying on our decision in State v. Davis , 156 Or.App. 117, 967 P.2d 485 (1998). In Davis , the defendant was charged with the murder of his wife. The defendant's theory was that he had not killed the victim, but that she had instead committed suicide. The state offered evidence of several incidents of prior domestic violence by the defendant against the victim to rebut the defendant's suicide theory and to prove that the defendant had intentionally shot the victim. 156 Or.App. at 124-25, 967 P.2d 485. We explained that, under State v. Moen , 309 Or. 45, 786 P.2d 111 (1990), and State v. Pyle , 155 Or.App. 74, 963 P.2d 721, rev. den. , 328 Or. 115, 977 P.2d 1171 (1998), evidence of prior acts of aggression against the victim could be used to prove the defendant's hostile motive against the victim and intent to commit the charged incident, but only if the evidence satisfied the multifactor test from State v. Johns , 301 Or. 535, 725 P.2d 312 (1986).3 Davis , 156 Or.App. at 125, 967 P.2d 485. We then concluded that some of the past acts of violence against the victim were admissible because they met the Johns test, and some of them were inadmissible, because they did not satisfy that test. Id . at 125-26, 967 P.2d 485.
Here, the trial court ruled that the prior acts evidence was admissible, apparently relying on Davis . Defendant then pleaded guilty to the felon in possession charge, and proceeded to a jury trial on the murder charge. The jury found defendant guilty of murder, and the trial court entered a judgment of conviction.
On appeal, defendant contends that the prior acts evidence should not be admitted because it is not relevant to any nonpropensity purpose. According to defendant, because the evidence was offered to rebut the defense theory that he had killed the victim accidentally, it was not admissible unless the state met the test established in Johns . Defendant insists that, because the evidence did not satisfy that test, it was mere propensity evidence and inadmissible under OEC 404(3). The state responds that the prior acts evidence in this case was relevant under OEC 404(3) to prove defendant's hostile motive towards the victim, which, in turn, was probative of his intent. The state further argues that, because the evidence was relevant to hostile motive, the Johns test need not be applied. We agree with the state on both points.4
As noted, the evidence in this case was offered to prove defendant's hostile motive—that defendant's past acts of hostility toward the victim tended to show that he desired to harm her and, therefore, was more...
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