State v. Hutton

Citation279 P.3d 240,250 Or.App. 105
Decision Date16 May 2012
Docket Number096061,A142745.
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Dennis Brian HUTTON, Defendant–Appellant.
CourtCourt of Appeals of Oregon

250 Or.App. 105
279 P.3d 240

STATE of Oregon, Plaintiff–Respondent,
v.
Dennis Brian HUTTON, Defendant–Appellant.

096061, A142745.

Court of Appeals of Oregon.

Submitted on June 28, 2011.
Decided May 16, 2012.



Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.


Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

[250 Or.App. 107]The victim, defendant's former girlfriend, reported to police that defendant hit her in the mouth and burned her with a cigarette during an argument in a trailer. Defendant was then charged with two counts of fourth-degree assault and two counts of harassment. Before trial, the state sought a ruling on the admissibility of evidence that defendant had given the victim a “fat lip” during a previous argument in the trailer. Over defendant's objection, the court ruled that the victim could testify about that prior assault, which she did, and defendant was convicted of fourth-degree assault and harassment. He now appeals, arguing that the trial court's ruling on the motion in limine was error, and that evidence of his prior bad act was inadmissible under OEC 404(3). We affirm.1

On Valentine's Day in February 2009, defendant and the victim, Feinstein, were “hanging out together” and drinking alcohol in a trailer. Defendant and Feinstein had been in a romantic relationship in the past but, as of that night, were not “officially together.”

From there, their stories diverge. According to Feinstein, they fell asleep in the bedroom of the trailer. She awoke a short time later to use the bathroom and get something to drink. When she returned to the bedroom, defendant was sitting in the bed and smoking a cigarette. They proceeded to argue about the trailer and other “touchy” subjects. Defendant became angry and hit her in the mouth. She took a step back, and defendant reached out, put his cigarette on her chest, and used it to push her back. Feinstein then went to the living room of the trailer, and defendant stayed in the bedroom until he left approximately an hour and a half later. The following day, her lip was swollen and sore, and she felt a burning sensation on her chest. She called the police and reported that defendant had injured her. Defendant was charged with two counts of fourth-degree assault (one count for striking Feinstein [250 Or.App. 108]and another for burning her) and

[279 P.3d 241]

two counts of harassment (again, one count for striking Feinstein and another for burning her), and he proceeded to trial on those charges.

During his opening statement, defendant's counsel advanced a different version of the events, arguing that no assault or harassment had occurred. He stated, “My client did not strike Miss Feinstein, he did not put out a cigarette on her, and that's what we're going to prove here at the end of the day.” Defendant's theory, which he later testified in support of, was that he left the trailer around 10:30 p.m. and returned to find Feinstein passed out drunk on the floor, at which point she told him that she had burned herself.

After defendant's opening statement, the prosecutor moved in limine for a ruling on the admissibility of evidence of prior misconduct—namely, evidence that, in 2007, defendant had hit Feinstein in the lip during an argument in the trailer, causing her lip to swell. Defendant had been indicted in a separate case on charges arising out of that earlier incident but still had not yet been tried on those charges by the time of trial in this case.

The prosecutor argued that evidence of the prior assault was admissible under OEC 404(3) because it was relevant for “showing intent in this case.” The prosecutor framed her argument in terms of the five-part test set forth in State v. Johns, 301 Or. 535, 557–59, 725 P.2d 312 (1986), for determining “whether the probative value of the evidence exceeds its prejudicial nature.” 2 The prosecutor, focusing on the “first prong” of that test, argued that evidence of the prior assault was necessary “to show the jury that this incident was not some odd accident—it sounds as though there's a defense that this did not—he did not commit the action on it but there's another explanation.” Relying on State v. Wieland, 131 Or.App. 582, 887 P.2d 368 (1994), the prosecutor argued that, as a matter of logic, “the more often that an unusual event occurs, such as getting a fat lip or having injuries around the neck area, the less likely it is that that occurrence [250 Or.App. 109]is accidental.” See id. at 589, 887 P.2d 368(“As a matter of logic, the more often an unusual event occurs, the less likely it is that the occurrence is accidental. Because this evidence [of a prior arson] has a tendency to make the fact that the 1986 fires were caused by arson more likely, it is relevant. OEC 401.”). The prosecutor further argued that the evidence was relevant to prove defendant's mental state on the harassment charges. She explained that the context of the testimony by Feinstein “would be when we're discussing the victim's state of mind in reaction to what was happening, why did she react the way she did, because she had experienced this before,” and also argued that prior assaults by defendant against Feinstein “are actually going to go to show his intent that's required on the Harassment charges.” The prosecutor, thus, was suggesting that because defendant had engaged in a pattern of abuse with Feinstein and had punched her in the mouth in the past, he therefore knew how she would react to that type of abuse.

Defendant, meanwhile, argued that “the defense is not that it was somehow accidental, it's that it did not happen, in fact[.]” Defendant directed the trial court to “what was said here in opening,” when defendant's counsel stated that defendant did not strike Feinstein, did not put out a cigarette on her, and “that's what we're going to prove here at the end of the day.” Thus, defendant argued, the prior assault was being offered only to show that defendant had a propensity to abuse Feinstein—an impermissible and highly prejudicial purpose.

The trial court granted the state's motion in limine, explaining:

“[I] believe that based on the Johns test it—this evidence does fall within those parameters. So I would be concerned if there were other evidence that was not this specific incident date because the second prong of clearly proven may not be

[279 P.3d 242]

of—whatever else has happened may not rise to that level.

“So I think that the evidence of the prior incident needs to be limited to this one particular event. In part because it's—the strength of the evidence is (inaudible), but also in part because I don't want [defendant's counsel] faced with [250 Or.App. 110]incidents that he hasn't heard about and if he already has the police report in this case at least he knows what's coming.

“I would agree that it is prejudicial toward [defendant] but really any evidence against him is prejudicial to some degree, and the test is whether it's unfairly prejudicial. I don't believe that it's unfairly prejudicial, nor do I believe that it is particularly inflammatory compared to the other evidence that's going to come in anyway in the case in chief.

“So I'm going to allow this evidence but it needs to be very carefully constrained to that one incident.”

Pursuant to that ruling, the state elicited testimony from Feinstein regarding the 2007 incident, as well as photographs depicting Feinstein after that earlier incident. Defendant objected to the admission of the photographs, but the trial court overruled the objection and admitted the evidence. The jury ultimately found defendant guilty of both counts of fourth-degree assault (Counts 1 and 3) and one count of harassment for burning the victim with a cigarette (Count 4). The jury acquitted defendant on Count 2, the charge of harassment predicated on defendant punching the victim in the mouth.

On appeal, defendant argues that the trial court erred in allowing the state to offer evidence of the 2007 incident, reprising his argument that the evidence was “admitted solely to show defendant's propensity to commit assaults, which is an improper basis to admit the evidence.” His contentions, however, have narrowed to a single legal issue: whether prior bad acts can be admitted to prove intent even if the defendant is not specifically disputing that element of the crime.

Although the legal issue on appeal is a narrow one, it cannot be properly analyzed apart from its more complicated legal context. The statutory genesis of the dispute, OEC 404(3), provides:

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, [250 Or.App. 111]opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

That evidentiary rule, the court explained in Johns, is a rule of inclusion, permitting the introduction of “other crimes” evidence as long as the evidence is relevant for a noncharacter purpose. State v. Garrett, 350 Or. 1, 6, 248 P.3d 965 (2011) (describing Johns). Depending on the purpose for which the evidence is offered, the test for relevance may differ. For instance, when the proffered noncharacter purpose is intent, Johns held, a court must consider the following five questions to determine whether a prior act is relevant:


“(1) Does the present charged act require proof of intent?

“(2) Did the prior act require intent?

“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

“(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

“(5) Were the physical...

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4 cases
  • State v. Kaylor
    • United States
    • Oregon Court of Appeals
    • 17 Octubre 2012
    ...generally be admitted only if defendant concedes the alleged act but claims that it was inadvertent or innocent’).”State v. Hutton, 250 Or.App. 105, 119, 279 P.3d 240 (2012). Here, there is no particular issue of mens rea, such as inadvertence, malice, deliberation, or a specific intent, th......
  • State v. Hutton, A142745
    • United States
    • Oregon Court of Appeals
    • 9 Octubre 2013
    ...respondent.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.NAKAMOTO, J. [258 Or.App. 808]In State v. Hutton, 250 Or.App. 105, 279 P.3d 240 (2012), we rejected defendant's challenge to the admission of evidence of his prior bad acts, holding that the evidence was re......
  • State v. Williams
    • United States
    • Oregon Court of Appeals
    • 14 Agosto 2013
    ...intended to touch the victim's genital area for a sexual purpose. Id. at 80–81, 871 P.2d 482. Nor is this a case like State v. Hutton, 250 Or.App. 105, 279 P.3d 240 (2012), vac'd and rem'd,353 Or. 533, 300 P.3d 1222 (2013), in which we explained that there are circumstances in which intent ......
  • State v. Hutton
    • United States
    • Oregon Supreme Court
    • 25 Abril 2013
    ...Or. 533300 P.3d 1222Statev.Dennis Brian HuttonNOS. S060567, A142745Supreme Court of OregonApril 25, 2013 250 Or.App. 105, 279 P.3d 240. Petitioner on review's petition for review is allowed. The decision of the Court of Appeals is vacated, and this case is remanded to the Court of Appeals f......

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