State v. Mills

• Court: Court of Appeals of Oregon
• Writing for the Court: WOLLHEIM
• Citation: 958 P.2d 896,153 Or.App. 611
• Parties: STATE of Oregon, Respondent, v. Richard Jack MILLS, Appellant. 96-03-7840-C; CA A94646.
• Decision Date: 22 April 1998

Page 896

958 P.2d 896 153 Or.App. 611 STATE of Oregon, Respondent,
v.
Richard Jack MILLS, Appellant. 96-03-7840-C; CA A94646. Court of Appeals of Oregon. Argued and Submitted Feb. 26, 1998.
Decided April 22, 1998.

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Richard Jack Mills, Appellant, filed a brief pro se.

Janet Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Page 897

Before LANDAU, P.J., and RIGGS ^* and WOLLHEIM,* JJ.

[153 Or.App. 613] WOLLHEIM, Judge.

Defendant appeals a judgment of conviction of assault in the first degree, ORS 163.185, ¹ and appeals his sentence imposed pursuant to ORS 137.700. ² We view the facts in the light most favorable to the state, State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993), and affirm.

On March 24, 1996, defendant and the victim, Rodney Trammel argued over the telephone regarding a disagreement they had had two days previously. Immediately afterwards, defendant went to Trammel's house, and they again argued. As defendant was trying to push his way in the front door, Trammel pushed defendant away and attempted to close the door. Defendant kept reaching around to his back and asked Trammel, "Do you want to die?" As Trammel turned to go back inside, defendant pulled a knife from behind him and stabbed Trammel in his right side. Trammel was treated at a local medical center and recovered. On advice from his parole officer, defendant turned himself in.

At trial, defendant argued that he acted in self-defense when he stabbed Trammel. The state asked defendant if he had received any wounds in the fight, and if so, whether he had preserved any evidence of them. Defendant said that Trammel had punched him hard twice, causing facial injuries, but said that he did not have any evidence or witnesses to corroborate his assertion. The state then asked defendant if he had "been involved in the system [his] entire life" in order to show that defendant knew the importance of preserving evidence. Defendant objected to any discussion of [153 Or.App. 614] his lengthy criminal record. The trial court allowed only limited questioning about defendant's history with the criminal justice system:

"I'll allow you to get into his knowledge as to the system but we're not going to get into details about other prior convictions."

Defendant admitted that he has been "familiar" with how the criminal justice system works since he was a juvenile, but stated that he is "not sure about what's evidence or not." Defendant subsequently was convicted by a jury of assault in the first degree and sentenced to a prison term of 90 months.

On appeal, defendant first argues that the trial court erred when it admitted "irrelevant and prejudicial character evidence." See OEC 404(1) (character evidence is not admissible generally). The state responds that the trial court did not permit questioning as to specific prior bad acts and that any potential prejudice was "qualitatively no different than that from defendant's own direct testimony." In determining whether evidence of prior bad acts should be admitted, a trial court should first determine whether the evidence is relevant for a noncharacter purpose, OEC 404(3), ³ and then conduct balancing under OEC 403 ⁴ to determine if the probative value of the evidence is outweighed by its prejudicial effect. State v.

Page 898

Johns, 301 Or. 535, 549, 725 P.2d 312 (1986). In Johns, the Supreme Court identified the following factors that a trial court should consider in applying OEC 403:(1) the need for the evidence, (2) the certainty that the uncharged misconduct occurred and that the defendant was the actor, (3) the strength or weakness of the evidence, and (4) its inflammatory effect on the jury. Id. at 557-58, 725 P.2d 312. We review a trial court's [153 Or.App. 615] relevancy determination as a question of law. Id. at 559, 725 P.2d 312. We reverse a trial court's OEC 403 determination only if it failed to exercise discretion, refused to exercise discretion, or failed to make an appropriate record. State v. Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987).

Here, the first and third factors of the Johns test weigh in favor of excluding the evidence the prosecutor elicited regarding defendant's history with the criminal justice system. The first factor is the need for the evidence. Defendant argued that he acted in self-defense and, therefore, was justified in using such force to defend himself. ORS 161.209. ⁵ Defendant admitted that he had no evidence of the injuries allegedly inflicted by the victim. ⁶ It was then that the prosecutor elicited testimony regarding defendant's prior involvement in the criminal justice system to demonstrate that defendant was aware of the need to preserve evidence. The state did not need that evidence. The victim testified and was able to answer questions regarding the parties' altercation. The state was able to refute defendant's...