State v. Mills
| Decision Date | 05 March 1979 |
| Docket Number | No. 78-2353,78-2353 |
| Citation | 591 P.2d 396,39 Or.App. 85 |
| Parties | STATE of Oregon, Appellant, v. Richard Leslie MILLS, Respondent. ; CA 11815. |
| Court | Oregon Court of Appeals |
Robert J. Larson, Public Defender, Services of Lane County, Inc., Eugene, argued the cause and filed the brief for respondent.
Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.
Defendant was indicted for assault in the fourth degree of his four-month-old daughter. ORS 163.160. The circuit court granted defendant's pretrial motion to limit evidence 1 by prohibiting the state from introducing evidence of the defendant's mistreatment of his daughter prior to the date of the crime charged in the indictment and to prohibit the state from questioning or impeaching the defendant's wife as to prior mistreatment of their child. The state appeals both rulings.
The circuit court heard testimony from a deputy sheriff and a Children's Services Division worker regarding a number of injuries to the child which they had observed on occasions prior to the crime. These injuries included two black eyes, bruises on her cheek and a cut on her head. The deputy testified that the defendant told him that the defendant had held the child's nose while feeding her, which sometimes made her cry, that the defendant squeezed her cheek to make her smile, which sometimes caused a bruise, that the defendant had once swung his open hand over her face and struck her accidentally, and that the defendant had "tapped" her a "couple of times," but not very hard. The deputy further testified that the defendant's wife had stated that all of the injuries the defendant claimed to have been accidental occurred when she was not present. When the defendant's wife was questioned as a witness about the child's injuries, she testified contrary to her prior statements. She denied that the child had suffered frequent bruises while alone with the defendant, denied that the defendant slapped the child when she cried, denied that the defendant had once pushed a cotton swab up the child's nose when she was crying, denied that the child received a cut from being thrown on a broken mirror by the defendant, denied that the child had received a black eye from being thrown against the couch, denied that the defendant covered the child's nose and mouth when she cried and denied making all the prior statements which the state expected her to reiterate by her testimony.
Evidence of defendant's prior mistreatment of an assault victim is relevant because it tends to establish intent and to negate the likelihood of accident, inadvertence or self-defense. Although we find no cases precisely in point, we have held in assault cases that evidence of prior assaultive acts against persons in a class with the victim are admissible for that purpose, State v. Fleischman, 10 Or.App. 22, 495 P.2d 277 Rev. den. (1972); See also State v. Klamert, 253 Or. 485, 455 P.2d 607 (1969). Similarly, it has long been held in cases of sexual assault that prior acts of a similar nature against or with the same victim are admissible for the same purpose. State v. Pace, 187 Or. 498, 212 P.2d 755 (1949); State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A., N.S., 266 (1913); Barzee v. Cupp, 29 Or.App. 705, 564 P.2d 1366 (1977). For similar reasons, we hold that evidence of prior injuries to a child in a prosecution for abuse of that child is relevant where circumstances tend to connect the defendant with those injuries or imply an origin other than accident or other innocent causation.
Determination that the evidence is relevant does not end the inquiry. Relevant evidence which tends to blacken the defendant's character may not be admissible " * * * It is objectionable, not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the tribunal whether judge or jury is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * * " 1 Wigmore on Evidence 646, § 194 (3rd ed. 1940)."
if the prejudicial effect outweighs the probative value. See State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975); State v. Goss, 33 Or.App. 507, 577 P.2d 78 (1978); State v. Pitts, 29 Or.App. 59, 562 P.2d 562; 30 Or.App. 1, 566 P.2d 182 Rev. den. (1977); 2 Wigmore, Evidence, § 364 (1954); 1 Wharton, Criminal Evidence, §§ 245-48 [39 Or.App. 89] (13th ed. 1972). Professor Wigmore justifies the exclusion as follows:
In this case evidence of prior physical abuse of the child has great probative weight regarding intent, knowledge, and lack of accident. The inflammatory tendency of the evidence is not so great as to make it likely that the jury will not restrict its consideration of the evidence to those ultimate facts to which the evidence is relevant. Moreover, where the best witness, the victim, is unable to testify due to death or incompetence, the principle of necessity weighs on the side of probative value. Therefore, we conclude that the evidence is admissible and the trial court erred by excluding it.
The state also assigns as error the trial court's order prohibiting it either from questioning defendant's wife about his treatment of the victim prior to the crime or from impeaching her with evidence of her prior inconsistent statements. Our disposition of the first assignment of error establishes the relevance of testimony regarding the defendant's treatment of the victim prior to the date of the crime. Defendant contends that the state must be barred from calling the wife as a witness to those events because, when called as a witness at the pretrial hearing, she testified that they did not happen. Defendant further contends that if the wife were called at trial, ...
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