State v. Westby
| Decision Date | 18 March 1993 |
| Docket Number | Nos. 89-07-32767,CA,s. 89-07-32767 |
| Citation | 124 Or.App. 265,862 P.2d 1318 |
| Parties | STATE of Oregon, Respondent, v. Daniel Dean WESTBY, Appellant. A63580. . On Respondent's Petition for Reconsideration |
| Court | Oregon Court of Appeals |
Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Kaye E. Sunderland, Asst. Atty. Gen., for petition.
Sally L. Avera, Public Defender, and Steven V. Humber, Deputy Public Defender, contra.
Before ROSSMAN, P.J., and DE MUNIZ and LEESON, JJ.
The state petitions for reconsideration of our opinion, 117 Or.App. 14, 843 P.2d 973 (1992), in which we reversed defendant's convictions on the basis that evidence of prior uncharged acts had been erroneously admitted at trial. We treat the petition as one for reconsideration, ORAP 9.15(1), allow it, clarify our opinion and adhere to it as clarified.
Defendant and the victim, Anderson, met in October, 1988, while incarcerated in the Umatilla County jail. After their release, defendant moved into Anderson's residence in Elgin, Oregon, where the two lived together for a short time. In late October, defendant left Oregon and travelled to Leadville, Colorado, where he began living with his half-brother, Newman. Defendant told Newman that he had hitch-hiked to Colorado and had left some of his belongings on a nearby side road, rather than carry them all the way to Newman's residence. The two went to the location specified by defendant and retrieved the belongings.
Also in late October, 1988, Anderson and his truck disappeared. In January, 1989, Anderson's partially decomposed body was found in his Elgin residence. He had been killed by a bullet in the head and had been dead for approximately three months when his body was discovered. Because the house was locked and its contents were undisturbed and because there was no sign of a forced entry, the police investigated the possibility that the victim had been killed by a houseguest. Anderson's truck and his wallet, in which he was known to carry large amounts of cash, were missing. Police discovered the truck in Colorado, near the place where defendant and Newman had retrieved defendant's belongings. Defendant acknowledged that he had lived with Anderson during October, but maintained that when he left for Colorado, Anderson was still alive. He denied having travelled to Colorado in Anderson's truck.
Before trial, the state moved to admit evidence of ten prior bad acts that had been committed by defendant. The court excluded evidence of six of the proffered incidents and admitted evidence of these:
(1) In October, 1978, defendant stole a car from a roommate in Washington and drove the car to Oregon. He was subsequently convicted of unauthorized use of a motor vehicle (UUMV).
(2) In July, 1987, defendant stole almost $5,000 in cash from a jewelry box belonging to his brother-in-law, in Oregon, then went to California. He confessed and was allowed to plead to a reduced charge of Burglary II.
(3) In August, 1987, defendant and his brother stole $4,500 worth of jewelry from a house in which his brother was house-sitting in California; defendant then travelled to Oregon. At the time of trial in this case, defendant had not been prosecuted for the California theft.
(4) In September, 1988, defendant took a test drive in an automobile belonging to a Hermiston auto dealer and did not return. He left for Colorado the next month and did not return to Oregon to face the charges against him.
The state argued that the evidence of those four incidents was admissible on several bases, including: (A) to prove defendant's identity by showing his modus operandi or "signature," State v. Bernson, 93 Or.App. 115, 120, 760 P.2d 1362, rev. den. 307 Or. 246, 767 P.2d 76 (1988); (B) to show that defendant had a motive to commit the crimes in this case; (C) to show defendant's common plan or scheme; and (D) to establish defendant's state of mind and intent.
Following a jury trial, defendant was convicted of murder, UUMV, theft I and theft III. ORS 163.115(1)(a); ORS 164.135(1)(a); ORS 164.055; ORS 164.043. He appealed, assigning error to, inter alia, the admission of the "prior bad acts" evidence.
In our opinion, we concluded that the September 1988 offense was admissible because it was relevant to prove defendant's motive and its probative value was not outweighed by the danger of unfair prejudice. 1 However, we reversed defendant's convictions on the ground that evidence of the other three offenses was inadmissible, because
117 Or.App. at 21-22, 843 P.2d 973.
Because we could not say that the error had been harmless, we reversed defendant's convictions and remanded for a new trial. 2
On reconsideration, we adhere to our holding that evidence of the September 1988 offense was admissible to establish motive. We also adhere to our holding that the remaining "bad acts" were not sufficiently unique to establish identity based on modus operandi. Indeed, the state concedes that the evidence did not meet the requirement, articulated in State v. Johns, 301 Or. 535, 551, 725 P.2d 312 (1986), that
(Citations omitted.)
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...We review this issue as a question of law. State v. Westby, 117 Or.App. 14, 17-18, 843 P.2d 973 (1992), on recons. 124 Or.App. 265, 862 P.2d 1318 (1993), rev. den. 318 Or. 351, 870 P.2d 220 The Supreme Court has held that OEC 404(3) is an inclusionary rule, not an exclusionary one. State v.......
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