State v. Gibson , 299 Or. App. 582 ( 2019 )

582
Argued and submitted May 8, 2018, affirmed October 2, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON GARRETT GIBSON,
Defendant-Appellant.
Hood River County Circuit Court
140281CM; A163166
451 P3d 259
A jury convicted defendant of second-degree criminal mischief, ORS 164.354.
On appeal, defendant assigns error to the trial court’s determination that it would
permit the state to introduce a video of defendant’s arrest, which the court had
previously ruled inadmissible under OEC 403, if it granted defendant’s request
to provide Uniform Criminal Jury Instruction 1102 regarding voluntary intox-
ication. Defendant argues that he was entitled to the instruction because there
was evidence that he was so intoxicated that he lacked the requisite criminal
intent and that the court improperly revisited its pretrial ruling on the video.
Held: Under State v. Langley, 363 Or 482, 521, 424 P3d 688 (2018), adh’d to as
modified on recons, 365 Or 418, 446 P3d 542 (2019), a trial court may reconsider
its earlier ruling. The Court of Appeals concluded that the trial court did not
err in its discretionary ruling under OEC 403 conditionally admitting the video,
because the danger of unfair prejudice did not substantially outweigh the video’s
probative value.
Affirmed.
John A. Olson, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services. Jason Garrett Gibson filed the
supplemental brief pro se.
Paul L. Smith, Deputy Solicitor General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Affirmed.
Cite as 299 Or App 582 (2019) 583
LAGESEN, P. J.
While intoxicated and angry, defendant dented the
car belonging to his then-girlfriend, Z. For that conduct, he
was charged with and then convicted by a jury of second-
degree criminal mischief, ORS 164.354. On appeal, defen-
dant assigns error to (1) the trial court’s determination that
it would permit the state to introduce a video of defendant’s
arrest if it granted defendant’s request to provide Uniform
Criminal Jury Instruction (UCrJI) 1102 regarding volun-
tary intoxication; (2) the court’s denial of his motion to dis-
miss the case on the ground that his statutory and constitu-
tional speedy trial rights were violated; and (3) the court’s
denial of his motion to prevent “the victims” from fleeing the
state. For the reasons that follow, we affirm.
Defendant punched, kicked, and walked on Z’s car,
denting it. As noted, defendant was intoxicated and angry
at the time. The police investigated shortly after the inci-
dent but initially observed no damage to the car because of
poor lighting conditions. For that reason, they did not arrest
defendant immediately, but instead gave him a ride to where
he was staying in his car. Later, Z took a look at the car in
better light and recognized that the damage would be dis-
cernible to the police in that light. She called the police and
they returned to her home to reexamine and photograph the
damage to the car. The police then went to arrest defendant.
At that point, approximately two hours had gone by since
defendant damaged the car. His arrest was documented by
a body camera worn by one of the arresting officers. The
video reflects that defendant was still intoxicated at the
time of his arrest. It also reflects that defendant was gener-
ally cooperative with the police during his arrest, although
he was not shy about expressing his dissatisfaction about
the arrest and the upcoming night (or more) in jail.
For damaging Z’s car, the state charged defendant
with one count of second-degree criminal mischief. Before
trial, defendant moved in limine to exclude the video of his
arrest, contending that it was not relevant to anything at
issue in the case and, alternatively, that it should be excluded
under OEC 403. The state opposed the motion, arguing that
it was evidence of defendant’s demeanor, “intentionality,”
584 State v. Gibson
and “his agitated behavior towards others and that that
mental state continued.” After reviewing the video, the trial
court excluded it under OEC 403.
During trial, the court conferred with the parties
regarding jury instructions. Defendant requested that the
court deliver UCrJI 1102, which explains how the jury may
account for evidence of voluntary intoxication when assess-
ing whether a criminal defendant possessed the requisite
criminal intent:
“The voluntary use of alcohol or drugs does not excuse
or justify criminal conduct. However, you may consider
evidence of voluntary intoxication in making your deci-
sion whether the defendant had the mental state that is
required for the commission of the charged offense.”
UCrJI 1102. The state objected to the instruction but, alter-
natively, argued that, if the instruction was given, the court
should reconsider its ruling excluding the video. The state
argued that the video would be probative of how defendant
behaves while intoxicated and whether he can make deci-
sions, something that defendant’s request for UCrJI 1102
put into play. The court concluded that defendant was enti-
tled to the instruction if he wanted it. It also agreed with
the state that, if defendant maintained his request that the
instruction be delivered, then the video of defendant’s arrest
would be admissible under OEC 403. The court explained
that, although it previously concluded that the probative
value of the video was substantially outweighed by the
danger of unfair prejudice, “raising a defense of voluntary
intoxication makes that video relevant and makes my cal-
ibration of the prejudice versus the permissible use as just
different.” The court stated further that it would entertain
a limiting instruction, upon defendant’s request, that would
restrict the jury’s consideration of the video to the issue of
how defendant’s voluntary intoxication bore on the question
of whether he had the requisite criminal intent.
Defendant ultimately withdrew his request for the
instruction in view of the trial court’s ruling about the
admissibility of the video. He noted for the record that he
was maintaining his objection to that ruling. As a result,
Cite as 299 Or App 582 (2019) 585
the court neither instructed the jury with UCrJI 1102, nor
admitted evidence of the video. The jury found defendant
guilty and he appealed.
As noted, defendant asserts that the trial court
erred in three respects: (1) by conditioning giving a volun-
tary intoxication instruction on the admission of the pre-
viously excluded video evidence; (2) by denying his motion
to dismiss on speedy-trial grounds; and (3) by denying his
motion to prevent “the victims” from fleeing the state.
We reject the latter two contentions without addi-
tional written discussion and turn our attention to the first
assignment of error.
In support of his first assignment of error, defen-
dant contends that he was entitled to the delivery of UCrJI
1102 because there was evidence that could support a find-
ing that he was so intoxicated that he lacked the requisite
criminal intent when he hit and kicked Z’s car. In his view,
his request for the instruction should not have triggered the
trial court to revisit its pretrial ruling excluding the arrest
video. Further, defendant asserts, the court erred when it
concluded that the video was probative of how his intoxica-
tion bore on his criminal intent two hours earlier, and also
when it concluded that any probative value of the video on
that point was not substantially outweighed by the danger
of unfair prejudice.
The state responds that the trial court committed
no error as a procedural matter by revisiting its prior ruling
on the video once defendant’s request for UCrJI 1102 put at
issue the effect on defendant’s voluntary intoxication on his
criminal intent. The state argues that we should not reach
the merits of the court’s OEC 401 and OEC 403 rulings
because, in the state’s view, any error is necessarily harm-
less given that the video was not admitted at trial. Finally,
the state argues that, if the merits must be considered, the
court was correct to conclude that the video was at least
somewhat probative of how intoxicated defendant had been
at the time he dented Z’s car and that the court was within
its discretion to conclude that the risk of unfair prejudice
did not substantially outweigh the video’s probative value on
that point.
586 State v. Gibson
We reject defendant’s premise that it was procedur-
ally improper for the trial court to reconsider its pretrial
ruling on the admissibility of the video in light of defen-
dant’s request that the court deliver the instruction on vol-
untary intoxication. As the Supreme Court has explained,
“[g]enerally, a trial court has broad discretion in determin-
ing whether to reconsider its earlier rulings, and may revisit
a pretrial ruling when events at trial unfold that call for
adjustments to that ruling.” State v. Langley, 363 Or 482,
521, 424 P3d 688 (2018), adh’d to as modified on recons, 365
Or 418, 446 P3d 542 (2019) (internal citation omitted). Here,
the trial court was not aware that defendant intended to
raise the issue of voluntary intoxication at the time that
it made its initial ruling. Once defendant raised the issue
through his jury instruction request, the court had “broad
discretion” over whether to revisit its earlier ruling in view
of that new information.
We next consider the state’s contention that any
error in the trial court’s determination that the video would
be admissible if defendant pursued the voluntary intoxica-
tion instruction would not be a reversible error, given that
the video was never admitted at trial. The state’s position,
as we understand it, is that, to establish reversible error on
appeal, defendant had no choice but to maintain his request
for UCrJI 1102 and accept the introduction of the video in
accordance with the court’s ruling.
In our view, the state’s position conflicts with the
approach taken by the Supreme Court in State v. Foster, 296
Or 174, 674 P2d 587 (1983). In that case, one of the state’s
witnesses had a plea agreement with the District Attorney’s
Office. Id. at 176. The plea agreement contained a condition
requiring that witness to take a polygraph examination. Id.The defendant sought a ruling from the trial court that he
could impeach the witness with evidence of the plea agree-
ment without opening the door to the introduction of evi-
dence about the polygraph test. Id. The court ruled other-
wise, concluding that, if the defendant asked the witness
on cross-examination about the plea agreement, the court
would permit the state to introduce evidence of the poly-
graph condition on redirect. Id. at 179-80. As a result of that
Cite as 299 Or App 582 (2019) 587
ruling, the defendant did not inquire about the plea agree-
ment on cross-examination of the witness. Id. at 176.
On appeal, we affirmed. We concluded that, to
establish reversible error, the defendant had to have cross-
examined the witness about the plea agreement, and the evi-
dence of the polygraph condition had to have been received.
See id. (quoting the ruling of the Court of Appeals).1 The
Supreme Court disagreed. It held that “defense counsel
adequately protected his client’s record” by objecting to the
introduction of evidence of the polygraph condition and by
sufficiently demonstrating that, but for the court’s ruling
regarding the admissibility of the evidence of the polygraph
condition, the defendant would have impeached the wit-
ness by questioning him about his plea agreement. Id. at
176, 179-81. The court concluded further that the trial court
committed reversible error by ruling that the evidence of
the polygraph condition would have been admissible if the
defendant had impeached the witness with evidence of the
plea agreement. Id. at 184.
This case is in a similar posture to Foster. As in
Foster, the record below demonstrates how the trial would
have unfolded if the trial court had not determined that it
would admit the arrest video if defendant maintained his
request for the instruction on voluntary intoxication. The
evidence would not have been admitted, the instruction
would have been delivered, and there is some likelihood
that, under those circumstances, the result of the case could
have been different. See generally State v. Davis, 336 Or 19,
32-33, 77 P3d 1111 (2003) (discussing what makes an error
a reversible one). The omission of the instruction meant that
the jury was left with no guidance from the court that it
would have been proper for it to take into account how defen-
dant’s state of intoxication bore on whether he possessed the
requisite criminal intent. Under those circumstances, as
1
This court’s conclusion in Foster that the defendant was required to accept
the trial court’s ruling, cross-examine the witness about the plea agreement, and
allow the evidence of the polygraph condition to be admitted in order to estab-
lish a reversible error on appeal is consistent with the approach adopted by the
United States Supreme Court in Luce v. United States, 469 US 38, 105 S Ct 460,
83 L Ed 2d 443 (1984). There, the Court held that, “to raise and preserve for
review the claim of improper impeachment with a prior conviction, a defendant
must testify” and allow the ostensibly improper impeachment to occur. Id. at 43.
588 State v. Gibson
was the case in Foster, if the court erred in ruling that the
video was admissible, that error was a reversible one, even
though defendant, based on the court’s OEC 403 ruling,
withdrew his request for the instruction so that the video
was not admitted.
The final question is whether the trial court erred
when it determined that the arrest video was relevant under
OEC 401 on the point of how defendant’s voluntary intoxi-
cation bore on his criminal intent and whether it abused
its discretion when it determined that that probative value
was not substantially outweighed by the danger of unfair
prejudice.
We review for legal error a trial court’s determi-
nation that evidence is relevant under OEC 401. State v.
Sparks, 336 Or 298, 307-08, 83 P3d 304 (2004). “OEC 401
establishes a very low threshold for the admission of evi-
dence, that is, evidence is relevant so long as it increases
or decreases, even slightly, the probability of the existence
of a fact that is of consequence to the determination of the
action.” Id. at 307 (internal quotation marks omitted).
Under that “very low threshold,” the trial court did
not err in concluding that the arrest video was probative
of defendant’s state of intoxication, and how it might have
affected his intent, at the time he dented the car two hours
earlier. The video reflects that defendant was still intox-
icated at the time of his arrest, allowing for an inference
about his state of intoxication two hours earlier, and allow-
ing for competing inferences about how that intoxication
may have borne on whether he had the necessary criminal
intent.
We review for abuse of discretion the trial court’s
determination under OEC 403 that the probative value of
the arrest video was not substantially outweighed by the
danger of unfair prejudice. State v. Anderson, 363 Or 392,
403, 423 P3d 43 (2018). “Evidence is unfairly prejudicial
when it has an undue tendency to suggest a decision on an
improper basis, commonly, although not always, an emo-
tional one, and when the preferences of the trier of fact are
affected by reasons essentially unrelated to the persuasive
power of the evidence to establish a fact of consequence.”
Cite as 299 Or App 582 (2019) 589
State v. Lipka, 289 Or App 829, 832, 413 P3d 993, rev den,
362 Or 860 (2018). In evaluating a trial court’s discretion-
ary ruling under OEC 403, our role is to assess whether the
court’s decision falls within the range of legally permissible
choices. Id. at 833.
Having viewed the video, we conclude that the
trial court’s determination was not an abuse of discretion.
Although the probative value of the video as to defendant’s
state of intoxication and mental state two hours earlier was
not particularly high, neither was the risk of unfair preju-
dice posed by defendant’s conduct at the time of arrest, as
captured on the video. All in all, defendant’s behavior was
not so egregious that it risked causing jurors to convict him
on an improper basis, or so a trial court permissibly could
conclude—particularly, where, as here, the court recognized
that the risk of unfair prejudice potentially could be miti-
gated with a limiting instruction. Given the relatively low
probative value of the video, the trial court also would have
acted within its discretion had it reached a contrary conclu-
sion about its admissibility, but, on this record, that was not
the only permissible legal outcome available to the court.
See Lipka, 289 Or App at 832-33.
Affirmed.