State v. Stockton

• Decision Date: 17 March 2021
• Docket Number: A165499
• Citation: 483 P.3d 657,310 Or.App. 116
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Eric Lee STOCKTON, aka Eric Stockton, Defendant-Appellant.
• Court: Oregon Court of Appeals

310 Or.App. 116

483 P.3d 657

STATE of Oregon, Plaintiff-Respondent,

v.Eric Lee STOCKTON, aka Eric Stockton, Defendant-Appellant.

A165499

Court of Appeals of Oregon.

Argued and submitted December 6, 2019.

March 17, 2021

Larry R. Roloff, Eugene, argued the cause and filed the brief for Appellant.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Brewer, Senior Judge.^*

BREWER, S. J.

Defendant was convicted by a jury of multiple criminal offenses, including three counts of felony fourth-degree assault involving domestic violence. ORS 163.160(3).¹ The victim of the charged assaults was defendant's former intimate partner, T. On appeal, defendant raises six assignments of error in his opening brief and additional assignments of error concerning nonunanimous jury instructions and verdicts in a supplemental brief. We write primarily to address defendant's third assignment of error, which challenges the trial court's admission of evidence of other charged and uncharged misconduct by defendant involving T and two of defendant's other former intimate partners. As elaborated below, we conclude that the trial court erred in admitting the other misconduct evidence and that the error was not harmless with respect to defendant's convictions for tampering with a witness and second-degree criminal mischief. We reject the remaining assignments of error in defendant's opening brief without discussion.

In supplemental assignments of error, defendant argues that the trial court erroneously instructed the jury that it need not be unanimous, and that was structural error requiring reversal of all of his convictions, including the three convictions that were based on unanimous verdicts. See Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) (holding that nonunanimous jury verdicts for serious offenses were impermissible under the Sixth Amendment). The state concedes that defendant is entitled to reversal and remand on the counts involving nonunanimous verdicts. We agree, accept the concession, and exercise our discretion to correct the plain error for the reasons set out in State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020). As for defendant's structural error challenge to the three convictions based on unanimous verdicts, the Supreme Court rejected a similar challenge in State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020). We reject it here, too, without further discussion.

Ultimately, we reverse and remand on Counts 1, 4, 5, 7, 9, 10, 11, and 12, and otherwise affirm.²

I. BACKGROUND

The indictment contained charges relating to numerous incidents, but we limit our discussion to the evidence relating to the events that gave rise to the fourth-degree assault (Counts 1, 7, and 11), tampering with a witness (Count 10), and second-degree criminal mischief (Count 12) convictions. Defendant and T were intimate partners for about four years. Their relationship was punctuated by several reports by T that defendant had committed acts of domestic violence against her. We summarize the evidence pertaining to the three incidents that resulted in the above-described convictions in this case as follows:

A. Hairspray Can Incident (Count 1)

On December 17, 2014, T was injured when defendant threw a can of hairspray through the open passenger window of her moving car, striking her on the chin. Defendant did not dispute that he threw the hair spray can at the car, but his position at trial was that hitting her was an accident.³ T testified on cross examination that defendant was "surprised" to have hit her, and defendant's mother testified that the can struck T by mistake, and they were both laughing about it.

B. Motorhome Incident (Count 7)

On January 29, 2016, T called defendant and asked him to come to a motorhome where she was staying. After initially declining, defendant agreed and brought dinner. T had been using methamphetamine. The owner of the motorhome, WE, became concerned about T and checked on her. Defendant held a knife to T's back and forced her to assure WE that she was alone and fine. However, WE was certain that someone else was there, and she called the police. When deputies arrived, defendant prevented T from opening the door. Eventually defendant released her. Deputy Scow noticed a lump on T's head immediately upon seeing her. T reported that defendant caused the lump by throwing her phone at her head. T stated that defendant bit her and "backhanded" her and that he held his hand over her mouth to keep her from crying out whenever he believed someone was approaching the motorhome. While testifying about the incident, T struggled to recall certain details, but she appeared to clearly recall the abuse itself.

C. G's Residence Incident (Counts 10, 11, and 12)

On February 20, 2016, T and defendant were staying at the home of G. When T tried to leave, defendant became angry and trapped her inside, causing an injury to her leg. T reported to police that defendant took her phone, repeatedly asked her what she told police regarding an earlier domestic violence incident, and when T refused to tell him what she told police, defendant threw her to the floor and kicked her while telling her to "fix it or you're not going to have any family either." When T managed to escape and attempted to leave in her friend's car, defendant jumped on the hood and broke one of the windows. After riding on the hood down the driveway, defendant got off and began kicking the car.

T made two 9-1-1 calls that day, the first as she was leaving G's residence. The second call was made from a friend's house. During the second call, T refused to tell the dispatcher where she was because she was at a drug house and did not want to get her friends arrested.

In charging the assault offenses, the state alleged, in addition to the other elements of fourth-degree assault, that defendant previously had been convicted at least three times under ORS 163.160 or equivalent laws of another jurisdiction for assault. The state further alleged that the currently-charged assault offenses constituted domestic violence in that "defendant and the alleged victim are persons who have been involved in a sexually intimate relationship."

Defendant's position at trial was that he did not commit the charged acts, except that, with respect to the hairspray can incident, defendant's position was that, although he threw the can, it struck T by mistake. Anticipating those theories of defense, before trial, the state sought a ruling that certain evidence of defendant's other charged and uncharged misconduct would be admissible at trial under various theories: to invite nonpropensity inferences of hostile motive and absence of mistake, as well as to invite propensity inferences under OEC 404(4). In total, the state proffered, and the trial court admitted, evidence of seven separate incidents of other misconduct by defendant:

(1) An incident in which defendant had been convicted in 2003 for kidnapping and assaulting a different former intimate partner, S, over a decade before the conduct charged in this case. Although the state had anticipated calling her as a witness, S did not testify, and the trial court admitted a copy of the judgment convicting defendant for those offenses as evidence of other misconduct.

(2) An incident on January 2, 2014, in which defendant had been arrested but ultimately not prosecuted for assaulting, strangling, and harassing another former intimate partner, WI. The court admitted a 9-1-1 recording of WI's statement that defendant had beaten her up "really bad" and choked her in that incident and that she was going to hide in the bathroom. WI was crying and concerned that defendant was coming back. The dispatcher told her to stay in the bathroom.

(3) An incident on January 16, 2014, in which defendant had been arrested but ultimately not prosecuted for assaulting and harassing WI. The trial court admitted a police officer's testimony that, in response to a 911 call, he had observed a bump on WI's head following that incident.

(4) An incident that occurred on August 12, 2015, in which defendant was arrested but ultimately not prosecuted for assaulting and harassing T. The trial court admitted photographs of a "scratch with a bruise" on her leg that T suffered in that incident. T testified that defendant "pushed [her] down," "kicked [her] down to the ground" and "wasn't going to let [her] go" until someone else intervened. T also described the injury to her leg.

(5) An incident on September 3, 2015, in which T called 9-1-1 about defendant's conduct of forcing a phone into her mouth, hitting her, and pouring soda on her. In addition to the 9-1-1 recording, T testified about that incident, recounting that defendant "push[ed]" her "down" and "poured grape soda" down her "throat so [she] couldn't scream."

(6) An incident that occurred on September 28, 2015, for which defendant previously had been convicted of harassment against T. The trial court admitted as other misconduct evidence the record of defendant's conviction of that offense, as well as testimony of T that defendant "push[ed]" her "up against the fence at his residence," and the testimony of a police officer who observed defendant "holding [T] by the shoulders and *** shoving her into the fence."

(7) Two uncharged incidents of assault against T that occurred in 2015, described in medical records that the trial court admitted as evidence of other misconduct. One of the records described T as having been involved in domestic abuse perpetrated by someone who had since been jailed and who had thrown her against a couch and hit her in the ribs.

In admitting the evidence of defendant's other misconduct, the trial court generally did not distinguish among the state's theories of admissibility, but repeated a consistent set of factors...