State v. Kelley, A161215 (Control)

CourtCourt of Appeals of Oregon
Citation426 P.3d 226,293 Or.App. 90
Docket NumberA161215 (Control),A161275
Parties STATE of Oregon, Plaintiff-Respondent, v. Ira Nelson KELLEY, Defendant-Appellant.
Decision Date25 July 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa Areli, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the briefs for respondent.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

POWERS, J.

In this consolidated criminal appeal, defendant challenges the results of two cases that were tried together. He appeals from the judgment of conviction in one case for one count of menacing constituting domestic violence, ORS 163.190, and one count of reckless driving, ORS 811.140. He also appeals from the judgment of contempt in the second case based on the court's finding that he violated a restraining order, ORS 33.015 ; ORS 33.065. Defendant contends that the trial court erred in failing to conduct the balancing required by OEC 403 before admitting evidence of his previous abuse of the complainant and that, even if the court did conduct balancing, it did so incorrectly and thus erred in admitting the evidence. We conclude that, even if the trial court conducted OEC 403 balancing, it improperly weighed the probative value of the disputed evidence and, consequently, abused its discretion. The error was not harmless. Accordingly, we reverse and remand.

In reviewing a trial court's application of OEC 403, we begin by summarizing all of the evidence and procedure related to the trial court's ruling. See, e.g. , State v. Baughman , 361 Or. 386, 388-90, 393 P.3d 1132 (2017) ( Baughman II ). As a result of previous assaults, L, who was defendant's wife, had obtained a restraining order against defendant. The charges at issue in these cases arose from an incident in which defendant went to the apartment complex of his and L's son, in St. Helens, early on a weekday morning. L regularly went to the apartment complex around that time to help prepare her granddaughters for school. Defendant admitted that, at the apartment complex, he photographed L in her white minivan.1 L testified that defendant then followed her for 30 to 40 minutes as she bought breakfast at McDonald's in Scappoose and proceeded toward her workplace in Beaverton. She also testified that, three or four times during that part of the morning, when L's van was stopped at traffic lights, defendant drove his car up behind the minivan and pushed it forward with his car.

As L approached her workplace and defendant continued to follow her and bump her minivan, she called 9-1-1. Following the dispatcher's instructions, she stopped in Beaverton, and police officers stopped defendant nearby. The officers discovered marks on the minivan's rear bumper that matched the height and spacing of the screws holding the front license plate on defendant's car. On cross-examination of L, defense counsel sought to explain the marks by attempting to elicit her testimony that defendant had once pushed her vehicle out of a snow bank.

Defendant testified that he had been at his son's apartment in St. Helen's at 6 a.m. to take out the garbage and that he was heading from there to an auto parts store in Beaverton to get a part for his car. He admitted seeing L at the apartment complex and that he had been in Scappoose, but he asserted that he had not been following her and that it was just a coincidence that he was driving behind her in Beaverton when he was stopped. He denied making contact between his car and the minivan.

The parties agreed that the criminal charges would be tried to a jury and that the trial court would rely on the same evidence to decide whether defendant had violated the restraining order. The morning of trial, the prosecutor informed the court that the state intended to "offer evidence of prior bad acts, particularly violent instances between the defendant and the victim in this case" because, in the state's view, that evidence was related to both the restraining order violation and the menacing charge. The prosecutor explained, "I think the evidence is clearly relevant to show the defendant's intent, lack of mistake and the reasonableness of the victim's fear as it relates to [the menacing charge]."

In response, defendant acknowledged that the state could present evidence that a restraining order existed. However, he argued that his "position would be that the order itself would be sufficient and that the allegations behind that order would not be relevant to this case. And it would in fact be highly prejudicial to [defendant], the allegations themselves ***." He contended that, "if the jury were to hear those, that that would clear[ly] go to the jury considering it as character evidence to some extent, or maybe to a large extent." Accordingly, he argued, "I don't think that the underlying allegations of the restraining order should be admissible or should be something that the state should be allowed to get into during the course of the trial." In response, the prosecutor again asserted that the allegations underlying the restraining order were relevant to "defendant's intent, lack of mistake, and the victim's fear. It's basically a [ State v. Johns , 301 Or. 535, 725 P.2d 312 (1986),] issue."

Referring to an earlier discussion that had taken place in chambers, the court ruled that evidence about the allegations underlying the restraining order would be admitted: "So and that is what we have discussed in chambers. And I think under a [ Johns ] analysis those kinds of allegations indeed do—that kind of evidence does come in for those reasons," that is, to show defendant's intent, lack of mistake, and the reasonableness of L's fear. After that ruling, L testified at trial that, on two occasions before the restraining order was issued, defendant had grabbed her by the throat and swung her around by her hair. The court also admitted a copy of the petition for the restraining order that recounted the same events. Ultimately, the jury convicted defendant of menacing and reckless driving, and the trial court found him in contempt of court for violating the restraining order. Defendant appeals.

In his opening brief, defendant contends that the court erred in admitting the evidence without first conducting the balancing required by OEC 403.2 In a supplemental brief submitted after the Supreme Court decided Baughman II , he argues that the court erred in admitting L's testimony about the previous abuse and the copy of the petition for the restraining order because that evidence was not admissible for the three nonpropensity purposes for which the state offered it: defendant's intent, lack of mistake, or the reasonableness of L's fear. Consequently, he contends, even if the court conducted OEC 403 balancing, that balancing was flawed because the court misapprehended the probative value of the evidence. Accordingly, he argues, we must reverse his convictions and remand for further proceedings.

In response, the state advances a variety of arguments, including that the trial court did conduct OEC 403 balancing; that defendant failed to preserve his argument that the court erred in failing to conduct it; that defendant failed to make a record sufficient for our review; that any error was harmless because (1) the trial court would have admitted the evidence even if it had conducted OEC 403 balancing and (2) the jury would have found defendant guilty regardless of the disputed evidence; and that, regardless of why the trial court admitted the evidence, Baughman II does not require a remand for the court to conduct OEC 403 balancing.

As we will explain, we conclude that defendant requested OEC 403 balancing and that, even assuming that the trial court conducted OEC 403 balancing, it erred in concluding that the disputed evidence was probative of defendant's "lack of mistake" under Johns and, consequently, abused its discretion under OEC 403. We cannot say that the error was harmless. Accordingly, the appropriate disposition is a remand for further proceedings, which will allow the trial court to correctly evaluate and balance the probative value and risk of unfair prejudice from the disputed evidence.3 In light of that conclusion, we decline to consider defendant's arguments regarding the trial court's other two stated reasons for admitting the evidence, viz. , to show defendant's intent and the reasonableness of L's fear.

"When a party objects to the admission of other acts evidence, a trial court first should determine whether the proffered evidence is relevant for one or more nonpropensity purposes, under OEC 404(3)." Baughman II , 361 Or. at 404, 393 P.3d 1132. 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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

If the proffered evidence is relevant for one or more of those purposes, "then the court should determine, at step two, whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice under OEC 403."4 Baughman II , 361 Or. at 404, 393 P.3d 1132. To do that, the Supreme Court has required a trial court to undertake a four-step "approved method of analysis" prescribed by State v. Mayfield , 302 Or. 631, 645, 733 P.2d 438 (1987) :

"First, the trial judge should assess the proponent's need for the uncharged misconduct 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
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