State v. Jones

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kenneth Emile JONES, Defendant-Appellant.
• Citation: 398 P.3d 376,285 Or.App. 680
• Docket Number: A155326
• Court: Oregon Court of Appeals
• Decision Date: 24 May 2017

285 Or.App. 680

398 P.3d 376

STATE of Oregon, Plaintiff-Respondent,

v.Kenneth Emile JONES, Defendant-Appellant.

A155326

Court of Appeals of Oregon.

Argued and submitted November 19, 2015.

May 24, 2017

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. With her on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Wollheim, Senior Judge.

DUNCAN, P.J.

Defendant appeals his conviction for second-degree robbery, assigning error to the trial court's admission of evidence of his convictions for three prior robberies. He argues, among other things, that the convictions were not relevant for the nonpropensity purposes that the state advanced and that admission of the evidence was not harmless. The state responds that the trial court did not err in admitting the convictions because they were relevant to defendant's intent. We agree with defendant that the trial court erred in concluding that the evidence was relevant on any theory that the state advanced, and we agree that the error was not harmless. Accordingly, we reverse and remand.¹

We review a trial court's ruling admitting evidence of other acts as relevant to a nonpropensity purpose contemplated by OEC 404(3) for errors of law, State v. Baughman , 361 Or. 386, 406, 393 P.3d 1132 (2017), and in light of the record that was before the court at the time it made its decision, State v. Johnson , 281 Or.App. 51, 53, 380 P.3d 1023 (2016).²

At the outset of the trial, the state moved in limine to introduce evidence of defendant's three prior second-degree robbery convictions and three prior third-degree robbery convictions. The state's memorandum in support of its motion provided some factual context based on what it expected the evidence of the charged conduct to show, and the theory of defense it expected defendant to raise at trial. The court ultimately ruled on the motion on the second day of trial. The following facts are drawn from the memorandum and the colloquies concerning the motion, and from the evidence and arguments presented at trial up to the point that the trial court made its ultimate ruling, on the morning of the second day of trial, that evidence of three robbery convictions—one second degree and two third degree—would be admitted.

At trial, the state presented evidence that, on the evening in question, defendant entered a pizza restaurant and told the manager, Zimmerman, " 'I'm here to rob you' " or " 'I'm going to rob you.' " Zimmerman was between defendant and the cash register. Zimmerman "was kind of shocked" and defendant repeated, " 'I'm going to rob you.' " Defendant was holding one fist up, and with the other hand, he reached in his waistband, as if he were grabbing for a weapon, and Zimmerman thought he was "trying to intimidate" him. At that point, Zimmerman pulled a gun out from behind the counter and pointed it at defendant. Defendant put both hands up, and said, " 'shoot me now, just shoot me. I want to commit suicide, just shoot me.' "

Zimmerman put his gun away, grabbed defendant, and put him outside. Defendant started to walk away, and Zimmerman went back inside, locked the door, and called 9-1-1. He told the 9-1-1 operator that defendant "was going to rob" him. He also said that defendant "wanted me to shoot him," and that defendant was "probably drunk or he was on drugs or something." Zimmerman had not noticed anything specifically that suggested defendant was using drugs or alcohol, but he thought that "there was just something off that just didn't add up." While Zimmerman was speaking with the 9-1-1 operator, defendant returned and yelled outside the restaurant. Zimmerman told the 9-1-1 operator that defendant was yelling through the window for Zimmerman to shoot him. At trial, Zimmerman said he could not hear what defendant was yelling through the window. Police located and arrested defendant a short while later at a nearby bus stop.

Defendant was charged with second-degree robbery. ORS 164.405.³ Defendant's opening statement suggested that he would present witnesses who would testify that he had expressed that day that he planned to kill himself, and had asked for help with killing himself. The state's memorandum similarly stated that defendant had provided notice of several witnesses who were prepared to testify that defendant was depressed and suicidal on that day. The state anticipated that defendant would present a defense disputing that he had the intent to commit robbery.

In its memorandum, the state argued that defendant's prior robbery convictions were relevant for the nonpropensity purposes of proving intent, motive, plan, and absence of mistake or accident under established theories of relevance contemplated by OEC 404(3). The state argued that each theory of relevance related to whether defendant had the requisite intent when he engaged in the charged acts. The state did not advance an argument that, in spite of the propensity prohibition contained in OEC 404(3), under OEC 404(4) the evidence would nonetheless be admissible as propensity evidence if relevant to a fact at issue.⁴ The state's citations to OEC 404(4) were in the context of its argument that, under that rule as it was then interpreted, the trial court was precluded from conducting OEC 403 balancing except to the degree that it was constitutionally required; the state continued to refer to intent, motive, plan, and absence of mistake or accident as the theories of relevance.

Defendant argued that the state had failed to establish, as the proponent of the evidence, that the convictions were admissible for a nonpropensity purpose. He specifically argued that the relevance of the prior robberies, for the purposes that the state had identified, could not be determined without reference to the circumstances or facts underlying the convictions.⁵

The trial court initially noted that "intent, in this case, is going to be at issue," and that because OEC "404(4) seeks to take any balancing tests out of the analysis[,] * * * I don't really have a basis for excluding it." Defendant asked, before the court made a final ruling, that the state be required to produce the police reports related to the convictions. "I think if you want to analyze this and see the relation between the past cases and this case, that, I think, is what we are trying to do—to see if those can demonstrate intent in this case. I'd need to see the facts of those cases before I could really—and I think, before Your Honor could really—make that determination [.]" After seeing the police reports the next morning, defendant argued that the prior robberies were not relevant. "I think that these police reports are kind of an example of why it's dangerous just to offer the convictions as proof of intent, especially on the 443 [sic ]." Defendant argued that using the prior crimes to prove intent required an analysis of the facts of the prior crimes, and that for the prior crimes to be relevant based on the state's theories, the state's evidence would have to include more than just proof of the convictions. Defendant contended, "I think that this is clearly a case where the allegations in this case are different than the factual pattern in those cases, so it actually misleads the jury even further to only offer the convictions."

The trial court noted that the state was not offering the police reports. The motion concerned only whether the evidence of defendant's convictions for robbery would be admitted on any of the state's proffered theories of relevance. The court stated that it would not consider the circumstances of the convictions, because those facts were not being offered. It then ruled that the state would be allowed to use the three most recent robbery convictions—one second-degree and two third-degree—based on the analysis in the state's memorandum.

On appeal, defendant assigns error to the admission of those prior robbery convictions. He argues, among other things, that the trial court erred in concluding that the state had established the logical relevancy of the convictions to any of the OEC 404(3) nonpropensity purposes it identified below, without considering the underlying facts. To use his prior conduct to prove his intent in this case, he contends, the state had to show more than just the convictions themselves; it had to show that the circumstances of the prior crimes made them relevant to a fact in issue on something besides a propensity-based theory of "once a robber, always a robber."

The state contends that, under State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), which was decided after the conclusion of defendant's trial, it does not need to establish that the other acts evidence was admissible under OEC 404(3). It states that, "[b]efore Williams , this court long assumed that evidence of a defendant's other acts was 'relevant' for purposes of OEC 404(4) only if it was also admissible under OEC 404(3)." But, the state argues, Williams held that OEC 404(4) supersedes OEC 404(3), 357 Or. at 15, 346 P.3d 455, and, therefore, under OEC 404(4) other acts evidence is "generally admissible for any purpose, so long as it is logically relevant, * * * subject only to the Due Process Clause." The state does not on appeal specifically assert, or engage in any analysis related to, the established nonpropensity theories of relevance associated with OEC 404(3) that it advanced before the trial court.

The Supreme Court recently clarified Williams in Baughman , which was issued after both briefing and argument were complete in this case. In Baughman , the court set out the analytical framework that applies to the...