State v. Hampton

• Decision Date: 23 February 1993
• Citation: 117 Or.App. 89,843 P.2d 483
• Parties: STATE of Oregon, Respondent, v. Todd Lee HAMPTON, Appellant. C91-01-30249; CA A69310.
• Court: Oregon Court of Appeals

Page 483

843 P.2d 483

117 Or.App. 89

STATE of Oregon, Respondent, v. Todd Lee HAMPTON, Appellant.

C91-01-30249; CA A69310.

Court of Appeals of Oregon.

Argued and Submitted May 29, 1992.

Decided Dec. 9, 1992.

Reconsideration Denied Jan. 27, 1993.

Review Allowed Feb. 23, 1993.

Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.

Harrison Latto, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Diane S. Lefkow, Asst. Atty. Gen., Salem.

Before JOSEPH, C.J., and ROSSMAN and DE MUNIZ, JJ.

ROSSMAN, Judge.

Defendant appeals his conviction for assault in the second degree, ORS 163.175, for hitting a police officer in the head with a beer bottle. He assigns error to the trial court's admission of evidence that he was on parole or probation when he committed the act and to the denial of his motion for a mistrial. We affirm.

On January 20, 1991, at approximately 10 p.m., Deputy Sheriff Reese was on routine patrol when a car pulled alongside him, but slowed suddenly, as if the driver were trying to avoid being noticed. He decided to follow it. He thought three or four people were in the car. He temporarily lost sight of it but soon found it parked in the driveway at Freauf's house. He determined that it had been reported stolen and called for cover. Deputies Gustafson and Harper responded. All of the officers were in uniform.

Reese and Gustafson went to the house and knocked on the front door. Freauf consented to the officers' searching the house. After looking through the ground floor of the house, they saw a stairway leading to the basement. A single light was on at the top of the stairs. They went down into the dimly lit half-basement and found Freauf's son, Dement, standing in front of a fireplace and fumbling with something on the mantle. They announced that they were sheriff's deputies and told Dement to raise his hands. He hesitated but complied after the officers drew their guns. On the mantle they found various drug paraphernalia and a plastic bag that contained some drug residue. They arrested Dement for possession of a controlled substance and took him outside.

A few minutes later, Dement's father told them that another person was still in the basement. Reese and Gustafson went down again and found defendant crouched behind a chair. The officers testified that they thought that they had identified themselves to him, but were not certain. Defendant fought back when Reese tried to handcuff him, and he scrambled to the stairs with Reese hanging on. Gustafson was a few steps behind as they went upstairs and onto the back porch. Reese and defendant were still struggling when they reached the top. Gustafson testified that he saw defendant grab a bottle that had been "sitting on a kind of a ledge there."

"I saw his hand come down and grab the bottle and I yelled at [Reese] that, you know, hey, he's got a bottle. I then heard the bottle--a crashing noise, I heard the bottle break."

He did not actually see defendant strike Reese, because Reese's body was blocking the view. He did see broken glass fall to the floor at the top of the stairs.

Reese testified that he and defendant wrestled as they went up the stairs and then

"stumble[d] out the screen door and there were a bunch of bottles there, and I remember some of them getting knocked over, [I was] kind of hunched over, almost like a head-lock type of situation, both of us were hanging on to him. * * * There were a couple of steps off the porch on to the dirt there, and I could see [defendant] reach down and pick up a bottle, and the next thing I knew he hit me with the bottle."

Reese conceded that he did not actually see defendant hit him, because he was facing the ground, and he said that he did not feel the blow itself, but felt the glass tumbling around his head.

Harper heard yelling and glass breaking and went to the back of the house. He arrived just as the three men were emerging from the porch. He saw defendant flailing his arms and saw the men fall from the porch and onto the hood of a car, but he did not see the incident with the bottle. He rushed to help subdue defendant, arrest him and place him in handcuffs. Reese said to Harper that defendant had hit him on the head; a knot on his forehead was beginning to discolor.

Defendant had complained about being injured, so, after the arrest, Harper took him to the hospital for a checkup. Harper testified that, as they were leaving the hospital,

"[Defendant] told me, his exact words were, 'I can't believe those wienies, they are lucky I wasn't throwing blows.'

" * * * * *

"I told him, I said, 'What are you talking about? You hit one of them in the head with a beer bottle. ' And then his reply was, 'Well, that was only after they pissed me off.' "

Before trial, the state sought a ruling on the admissibility of evidence that defendant was on parole and out of contact with his parole officer when the incident happened. It argued that the evidence would show that defendant had a motive to commit an assault. Defendant argued that the evidence was irrelevant and unfairly prejudicial. The court declined to rule until a witness was actually testifying but acknowledged defendant's continuing objection.

The state's case opened with testimony from a parole and probation office intake person, who testified that defendant had come in to make an appointment and that, after giving him an appointment slip, she asked if there was an outstanding warrant for his arrest. She said that defendant said no, and she asked him to stay until she "clarified it and resolved the matter." He then asked if he could go to the restroom. "I said sure but would he please come back, and that was the last we saw of him." She testified that she later confirmed that there was an outstanding warrant for his arrest.

Defendant's parole officer testified that she had never met defendant and that he did not keep his appointment with her and never submitted a monthly report form. She testified that, when a client fails to keep an appointment, she typically reports the violation to the releasing authority and an arrest warrant is issued.

Defendant moved for a mistrial during the first recess on the ground that the testimony of the parole and probation office employees was irrelevant, unfairly prejudicial and inadmissible evidence of prior bad acts. OEC 402; OEC 403; OEC 404(3). ¹ Defendant concedes that the evidence might have been relevant if he had been charged with escape or resisting arrest, but not here, where he is charged with committing an assault. The state argues that

"[t]he reason the evidence would be relevant to prove defendant's motivation to commit those crimes is the same reason the evidence is relevant to prove his motivation to commit assault on Deputy Reese."

The indictment charged that defendant

"did unlawfully and knowingly cause physical injury to Multnomah County Sheriff's Office Deputy Michael Reese by means of a dangerous weapon, to wit: a bottle, by breaking it over his head." ²

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401. The state argues that the evidence was relevant, because a rational juror could reasonably infer that "defendant sought to get away from the officer because he knew outstanding charges were pending against him and that his parole/probation status--ergo his freedom--was in jeopardy" and that that was his motive, the reason that he "vigorously fought to 'try to get away.' "

We agree that proof of a motive ³ would be relevant to prove that a defendant struck a blow, see, e.g., State v. Rose, 311 Or. 274, 283, 810 P.2d 839 (1991), particularly when the state has no direct evidence of the striking. A jury could reasonably infer that the degree of force that a defendant used was proportional to the degree of fear that he had of becoming subject to the victim's control. Therefore, that a defendant might have known that there was an outstanding warrant for his arrest would be relevant.

However, that determination does not end our inquiry. Even relevant evidence must be excluded if its prejudicial effect substantially outweighs its probative value. OEC 403.

"In making this decision * * *, the judge should engage in four steps. First, the trial judge should assess the need for the * * * evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution's need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent's evidence, to exclude all the proponent's evidence or to admit only part of the evidence." State v. Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987).

The resolution of this issue requires the court to focus on the need for the evidence, its certainty, its strength, any inflammatory effect and the time needed to present the evidence. See State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). Although defendant argues that the state did not need the evidence, he is wrong. He denied hitting the officer. The evidence was needed to explain why defendant would have, and in fact did, hit the officer in an attempt to flee custody. ⁴ See State v. White, 71 Or.App 299, 303, 692 P.2d 167 (1984), rev. den. 298 Or. 705, 695 P.2d 1372 (1985). Defendant does not challenge the certainty of the evidence. The evidence was...