State v. Tena

• Decision Date: 14 September 2016
• Docket Number: A154735
• Citation: 281 Or.App. 57,384 P.3d 521
• Parties: State of Oregon, Plaintiff–Respondent, v. Israel Ovalle Tena, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

281 Or.App. 57

384 P.3d 521

State of Oregon, Plaintiff–Respondent,

v.Israel Ovalle Tena, Jr., Defendant–Appellant.

A154735

Court of Appeals of Oregon.

Submitted March 16, 2015.

September 14, 2016

Peter Gartlan, Chief Defender, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the briefs for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN, P.J.

In this criminal case, defendant appeals a judgment convicting him of assault in the fourth degree against his domestic partner. In his opening brief, he raises two assignments of error. First, he asserts that the trial court erred in admitting evidence of two prior assaults against different domestic partners. Second, he asserts that, even if the trial court did not err in admitting the evidence, it plainly erred in failing to instruct the jury that it could not consider the evidence unless and until it determined whether defendant committed the charged act and was proceeding to determine whether he did so with the requisite mental state. And, in a supplemental brief, he asserts, among other things, that the trial court plainly erred in admitting the evidence without balancing its probative value against the danger of unfair prejudice.

As explained below, the trial court ruled that the challenged evidence could be admitted for two independent reasons, one of which was to prove defendant's motive in assaulting the victim. On appeal, defendant's only argument regarding the admission of the evidence to prove motive is that the trial court erred in failing to apply the test set out in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986), to determine whether the two prior assaults were sufficiently similar to the charged assault to be probative of motive. We conclude that the trial court was not required to apply the Johns test to the evidence admitted to prove defendant's motive, and, therefore, defendant has failed to establish that the trial court erred in admitting the evidence. We also conclude that the trial court did not plainly err in failing to give a limiting instruction or in failing to balance the probative value of the evidence against the risk it posed of unfair prejudice. Accordingly, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

The state charged defendant with assault in the fourth degree, constituting domestic violence.¹ ORS 163.160 ; ORS 132.586. The charge was based on evidence that defendant had assaulted his domestic partner. Before trial, the state filed a motion for a ruling on the admissibility of evidence that defendant had previously assaulted two other domestic partners. In the motion, the state contended that the evidence was admissible under OEC 404(3), which provides that “[e]vidence 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,” but it “may * * * be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Specifically, the state contended that the evidence was admissible to prove defendant's “intent or absence of mistake or accident” under Johns, and to prove that defendant had a “hostile motive” toward the victim under State v. Moen , 309 Or. 45, 786 P.2d 111 (1990). The state also stated that, in accordance with State v. Leistiko , 352 Or. 172, 282 P.3d 857, adh'd to as modified on recons , 352 Or. 622, 292 P.3d 522 (2012), and State v. Pitt , 352 Or. 566, 293 P.3d 1002 (2012), it intended to request a jury instruction “limiting the consideration of the prior bad act only after the jury finds that the act occurred and they are considering whether the act was intentional.”

At the hearing on the motion, the state presented evidence regarding the two prior assaults. But, at the state's request, the trial court deferred ruling on the motion until after the state presented evidence at trial to establish that defendant had committed the actus reus of the charged assault. See Pitt , 352 Or. at 580–81, 293 P.3d 1002 (trial court erred by ruling before trial that evidence of the defendant's prior bad acts was admissible to prove the defendant's mens rea , because, at that point, the state had not presented evidence sufficient to prove that the defendant had committed the actus reus ).

At trial, the state presented evidence that, on the evening of August 10, 2011, defendant and K, his then-girlfriend, were in a dispute after K and her sister drank alcohol at several bars, in violation of a rule of the house where defendant, K, and K's sister lived together. While defendant and K were arguing in their locked bedroom, defendant grabbed K by the hair and punched her. K fell to the floor, and defendant put his hand on her chin and throat and picked her up. During the argument, K's sister heard K yelling that defendant was hitting her and she needed help. Defendant refused to unlock the bedroom door. K's sister called 9–1–1 and reported that defendant was assaulting K, and defendant left the house.

After presenting that evidence, the state asked the trial court to rule on the admissibility of the evidence of the two prior assaults. That evidence, which the state had presented to the trial court during the earlier hearing on the motion, was that defendant had assaulted his then-girlfriend in 2004 and had assaulted his then-wife in 1997. In both prior assaults, defendant punched and strangled the victims and prevented them from leaving; he also moved one of the victims by her hair. During the 2004 assault, defendant was angry at his girlfriend because of her interaction with another man. During the 1997 assault, defendant was angry with his wife over child-custody issues and his wife's plans to go to school. As it had in its written motion, the state argued that the evidence of the two prior assaults was admissible to prove “intent or absence of mistake or accident” under Johns and to prove “hostile motive” under Moen.

The state's theory under Johns was that the evidence was admissible to prove that K's injuries were not caused by accident. In his opening statement, defendant had asserted that, while he and K were fighting about her drinking, K tripped and hit her face on a rocking chair. The state argued that the evidence of the two prior assaults was admissible under Johns to disprove that theory. In Johns, the Supreme Court held that evidence of other acts can be relevant to prove intent under the “doctrine of chances,” a theory of relevance premised on the view that “an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.” 301 Or. at 553, 725 P.2d 312 (citing John Henry Wigmore, 2 Evidence § 302, 246 (Chadbourne rev. 1979)). The Supreme Court also set out a six-factor test for determining whether evidence of other acts is relevant to prove intent on a “doctrine of chances” theory.² In this case, the state argued that the evidence of the prior assaults satisfied the Johns test.

The state also argued that the evidence was admissible under Moen to show that defendant “has a hostile motive in relation to his domestic partners.” According to the state, the evidence was admissible to show that, “while in a domestic setting, [defendant] acts violently and intentionally to harm his partners when he is agitated.”

In response, defendant argued that the evidence was not admissible under Johns because he was not claiming that he had injured the victim by accident and, consequently, the evidence was not relevant under a doctrine-of-chances theory. He further argued that the evidence did not satisfy the Johns test because the prior assaults were not sufficiently similar to the charged assault and the class of victims—domestic partners—was too broad. In defendant's view, the evidence was “really just character evidence” that the state sought to use to show an “emotional propensity” to commit domestic assault. Defendant contended that the evidence violated OEC 404(2), which provides that, subject to certain exceptions, “[e]vidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion.”

The trial court accepted the state's argument and concluded that the evidence of the two prior assaults was admissible under Johns to prove defendant's “intent” and under Moen to prove that defendant had a “hostile motive” toward the victim. The court also noted that it would give a limiting instruction, as the state had requested.

Thereafter, the state presented evidence of the two prior assaults. And, the state submitted a limiting instruction in accordance with Leistiko. The trial court gave the jury a modified version of the state's instruction. The jury convicted defendant, who now appeals.

II. ARGUMENTS ON APPEAL

As mentioned, defendant raises two assignments of error in his opening brief. First, he asserts that the trial court erred by admitting the evidence under OEC 404(3), as construed in Johns and Moen. Second, he argues that, even if the evidence was admissible, the trial court plainly erred under Leistiko and Pitt by failing to instruct the jury that, before it could consider the evidence of the prior assaults, it had to first determine whether defendant committed the actus reus of the charged assault and then, and only then, could it consider the evidence of the prior assaults to determine whether defendant had acted with the requisite mens rea .

After defendant filed his opening brief, the Supreme Court issued its opinion in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), holding that “OEC 404(4) * * * supersede[s] OEC 404(3)...