DocketNumber: 201204868; A152003
Citation Numbers: 272 Or. App. 355, 356 P.3d 111
Judges: Duncan, Sercombe, Wollheim
Filed Date: 7/22/2015
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals his convictions for various property crimes, including two counts of identity theft, and crimes associated with flight from police. In his opening brief, defendant argues that, under OEC 404(3)
We set out the pertinent facts, which were undisputed at trial, except as noted. Just after 7:00 a.m. on March 7, 2012, the owner of a truck, Woolley, reported to police that the truck had been stolen from his driveway in Eugene. Woolley had discovered that the truck was gone after one of his employees called and said that he had seen someone other than Woolley driving the truck in a convenience store parking lot. At trial, the employee identified defendant as the driver of the stolen truck.
An officer soon spotted the truck in a restaurant parking lot. After the officer pulled into the parking lot, defendant drove over a curb and sped away. (The officer testified that defendant drove away after the officer activated his lights and siren, but defendant testified that he never saw lights or a siren and thought he was being chased by someone who he recently had fought in a bar.) The officer observed defendant stop, drop off a female passenger, who was never identified, and speed away again.
After he reached the dead-end street, defendant drove the truck into two parked minivans, and one of the minivans hit a nearby house. Defendant abandoned the truck, proceeded on foot, and lost the jacket he was wearing as he ran. (The officer testified that he told defendant that he was under arrest, yelled for him to stop, and grabbed at the jacket, which slipped off as defendant ran; defendant denied that any of that occurred.) Woolley’s loaded handgun was found in the jacket pocket. Defendant was apprehended a short time later, just a few blocks away, by other officers who had been setting up a perimeter.
It was later discovered that the property found in the truck matched property missing from two cars near where the truck had been stolen: A GPS unit, other property, and a wallet containing the personal identifications of a husband and wife were missing from one car; a car charger, mailbox key, change, and garage door opener were missing from another. A nearby garage — the one that matched the opener — was found open, and a $100 Wal-Mart gift card, car charger, and sunglasses were missing from a car parked in the garage. In the same neighborhood, a truck and trailer parked on the street near Woolley’s house had been sideswiped; paint found on the damaged truck and trailer matched the color of Woolley’s truck.
At 4:35 a.m. on March 7, defendant used a $100 gift card at a Wal-Mart. To make his purchase, defendant provided his birthdate and signature. Surveillance video recorded defendant making the purchase and climbing into the sunroof of the truck in the parking lot.
Defendant was charged with a number of crimes, including two counts of identity theft
The court revisited the admissibility of evidence of defendant’s identity theft convictions during the state’s case-in-chief. The state argued that that evidence met the five criteria set out in Johns and was therefore admissible to show defendant’s intent to deceive or defraud. Defendant responded that the prior crimes were not sufficiently similar to the charged crimes under the criteria set out in Johns and asserted that, if the court found that they were sufficiently similar, the probative value of the evidence was outweighed by its unfair prejudice.
The court granted the state’s motion to admit the evidence, concluding that “all the elements under Johns have been met.” Further, “with regard to the balancing test,” the court explained that it did “not believe that there [was] any unfair prejudice involved in this,” noting that the state “bears the burden of proof on all the elements and one of the elements is intent” and that the evidence of other acts “goes to intent.” The state and defendant later stipulated to his prior convictions. The jury heard testimony from four witnesses for the state who described the prior identity thefts, as well as the parties’ stipulation to the resulting convictions.
The court also gave two limiting instructions related to the jury’s assessment of the identity theft convictions and defendant’s several other convictions (which were admitted for impeachment purposes when defendant testified):
“If you find the defendant has been previously convicted of a crime, you may consider this conviction only for its bearing, if any, on the believability of the defendant’s testimony. Specifically, you may not use this evidence for the purpose of drawing the inference [that] because the defendant was convicted of a previous crime, the defendant may be guilty of the crime charged in this case.
“However, the evidence that the defendant has been convicted of identity thefts may also be used to determine whether the defendant possessed personal identification of another with the intent to deceive or defraud.”
Defendant did not object to those instructions. Ultimately, the jury found defendant guilty of all 26 counts it considered.
Before addressing those claims further, we must first address preservation. See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (explaining that, to preserve an argument for appellate review, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its
We may, however, review defendant’s unpreserved assignment of error as one “apparent on the record” if (1) the error is one of law; (2) it is apparent, that is, it is “obvious, not reasonably in dispute”; and (3) the error appears on the record such that “[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990); see State v. Jury, 185 Or App 132, 137, 57 P3d 970 (2002), rev den, 335 Or 504 (2003) (explaining that “plain error” is determined by reference to the law existing at the time the appeal is decided). If those requirements are met, we must determine whether it is appropriate to exercise our discretion to correct the error,
Since Leistiko, however, the law surrounding “other acts” evidence has shifted yet again. After the parties filed their briefs in this case, the Supreme Court issued its decision in Williams, where the question was whether evidence that the defendant was found in possession of two pairs of children’s underwear was admissible in a prosecution for first-degree sexual abuse for conduct involving a child. 357 Or at 3-4. In answering that question, the Supreme Court considered the state’s contention that “OEC 404(4) supersedes OEC 404(3) and makes relevant ‘other acts’ evidence admissible for all purposes,” i.e., even to show a defendant’s character and propensity to act accordingly. Id. at 5 (emphasis in original). After reviewing the text, context, and legislative history of OEC 404(4), the court concluded that “OEC 404(4) *** supersede[s] OEC 404(3) in criminal cases, except * * * as otherwise provided by the state or federal constitutions.” Id. at 15.
The court then considered what limits the federal constitution, specifically the Due Process Clause, might place on the admission of other acts evidence. Drawing from historical practice and the fundamental principles embodied in the Due Process Clause, the court concluded that, “in a prosecution for child sexual abuse, *** subjecting proffered ‘other acts’ evidence to OEC 403 balancing is a due process requirement.”
Applying that framework, the court concluded that evidence that the defendant possessed the underwear was logically relevant under OEC 401 because the evidence permitted the inference that the defendant was an adult who had a sexual interest in children, which, in turn, was probative of whether the defendant had a sexual purpose in engaging in the charged conduct. Williams, 357 Or at 21-23. Finally, because the trial court had admitted the evidence after conducting the balancing under OEC 403, and because the defendant did not contend that the trial court’s OEC 403 analysis was erroneous, the court ruled that the “other acts” evidence was properly admitted.
Both parties address the application of Williams in supplemental briefs. Defendant recognizes that, in criminal cases, “OEC 404(4) makes ‘other acts’ evidence admissible if it is relevant under OEC 401 and admissible under OEC 403,” Williams, 357 Or at 20, but he asserts that his Leistiko “arguments, and the law on which they are based, are not altered by the Williams decision.” First, defendant emphasizes that, under OEC 404(4), evidence is admissible only if the court finds “that the evidence [is] ‘logically relevant.’” He argues that, “[although Leistiko was primarily focused on OEC 404(3), and Williams held that OEC 404(4) abrogated OEC 404(3), both rules require that the proponent of
The state responds that “defendant incorrectly characterizes the Leistiko rule as one strictly of relevancy, rather than of admissibility.” The state agrees with defendant to the extent he argues that Williams “does not alter the definition of relevant evidence in OEC 401,” but the state contends that Leistiko was not “a case determining the relevancy of proffered prior misconduct evidence.” (Emphasis in original.) Leistiko was concerned with OEC 404(3), the state suggests, and OEC 404(3) “does not bear on the relevancy determination of specific evidence,” it “simply identifies a type of evidence that — although relevant — is inadmissible based on a specific application of OEC 403.” The state further argues that, because “evidence of defendant’s prior conviction of identity theft was highly relevant and specific to the question of whether he had the intent to deceive or defraud with the charged victims’ stolen pieces of identification,” the trial court’s admission of the prior identity theft crimes “easily passes muster under traditional OEC 403 balancing and thus necessarily satisfies due process.” On that issue, the state notes that the trial court provided a limiting jury instruction that restricted the jury’s use of defendant’s prior identity theft convictions, even if that instruction was “not an exact recitation of the limiting jury instruction the Court suggested in Leistiko”
First, there is at least a reasonable dispute as to defendant’s claim that, without a Leistiko jury instruction, the evidence here was “not yet relevant” to intent under the doctrine of chances.
Second, we do not agree with defendant that the trial court committed obvious error in admitting the identity theft evidence because, without a Leistiko instruction, the probative value of that evidence was substantially outweighed by the risk of unfair prejudice. Defendant’s argument rests on the categorical proposition that, when a defendant does not concede the charged act and the trial court does not give a Leistiko instruction, evidence offered on a doctrine of chances theory necessarily “lacks probative value and is unfairly prejudicial.” (Emphasis in original.) As noted above, it is not obvious that the failure to give a Leistiko instruction means that “other acts” evidence has no
In sum, we cannot endorse defendant’s unqualified claim — that “evidence that fails the Leistiko analysis and is not relevant for any other purpose must also be excluded under Williams” (emphasis in original) — as an obvious point of law that is beyond reasonable dispute. In light of Williams, we do not agree with defendant that the trial court plainly erred when it admitted the challenged evidence without issuing a Leistiko instruction. See also State v. Brown, 272 Or App 424, 355 P3d 216 (2015) (failure to give Leistiko instruction is not plain error under OEC 404(4)).
We turn to two assignments of error related to defendant’s sentence. In both, defendant argues that, when the trial court imposed a sentence in the judgment that differed from the sentence announced in open court, the court violated his constitutional and statutory right “to be present when a court effects a sentence modification.” See State v. Riley, 195 Or App 377, 384, 97 P3d 1269 (2004), rev den, 340 Or 673 (2006) (explaining that a defendant’s right to be present is implicated when the modification involves disputed facts or the court’s exercise of discretion, not when it occurs wholly by operation of law).
Defendant first argues that the trial court erred when it modified his sentence on Count 13, for criminal mischief, without pronouncing the new sentence in open court in defendant’s presence. On Count 13, the trial court stated that the 60-month sentence for the criminal mischief
Defendant next argues that the trial court erred when it modified his sentence to deny him “earned time” on each of his felony sentences. At sentencing, the court stated that defendant would “not be eligible for good time for the first 144 months of his sentence” and found substantial and compelling reasons for that denial under ORS 137.750(1).
The state responds that defendant’s argument should be reviewed for plain error because defendant failed to preserve it, and contends that the error is not plain because the Department of Corrections could interpret the judgment in one of two ways: “(1) that defendant is not eligible for any sentence-reducing credits; or (2) that defendant is not eligible for any sentence-reducing credits, except for earned good time once defendant has served 144 months of his sentence.” According to the state, the only way to determine how the Department of Corrections has interpreted defendant’s sentence is to go outside the record, so the error is not apparent on the record and therefore not plain.
We conclude that, because the asserted error first became apparent when the judgment was issued, defendant was not required to raise an objection at that time, when defendant was not present, to preserve the error. See State v. Jacobs, 200 Or App 665, 671, 117 P3d 290 (2005) (assignment of error was preserved where the defendant argued that the trial court erred by imposing a longer sentence by written order and judgment than that proposed orally at an earlier time, even though the defendant did not object at time of judgment). And, we conclude that the judgment reflects a sentence that effectively modifies the sentence that was announced in open court. At best, the judgment is ambiguous in that regard; as the state notes, it might be read to deny defendant earned good time after 144 months, so that the judgment modifies defendant’s sentence. Because that modification is discretionary rather than a change required by operation of law, defendant had a right to be present for that modification. Accordingly, we vacate defendant’s sentence and remand for resentencing.
Remanded for resentencing; otherwise affirmed.
OEC 404(3) provides:
“Evidence 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
OEC 404(4) provides:
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) [OEC 406 to 412] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403];
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
Because Williams was a prosecution for child sexual abuse, the court limited its holding under the Due Process Clause to child sexual abuse cases; the
We reject without published discussion defendant’s fourth, fifth, sixth, and seventh assignments of error.
ORS 165.800(1) provides that “[a] person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses,
A detective testified that, in 2001, he investigated a theft of a credit card from Blume, and the detective spoke to defendant, who admitted to stealing Blume’s credit card from Blume’s car. Defendant was convicted of two counts
First, defendant was convicted of several crimes associated with unlawfully entering the garage, theft of personal property and identifications, use of Woolley’s truck, and damaging the truck and trailer: first-degree burglary; two counts of second-degree theft; two counts of identity theft; unauthorized use of a vehicle; second-degree criminal mischief; and failure to perform duties of a driver
In some cases in a similar procedural posture — that is, where the defendant’s trial was held before the Supreme Court decided Leistiko — we have concluded that the defendant’s arguments at trial were sufficient to preserve his appellate arguments based on principles announced in Leistiko. Compare State v. Hutton, 258 Or App 806, 810, 817, 311 P3d 909 (2013) (concluding that the defendant preserved his appellate argument, based on principles announced in Leistiko, by arguing at his pre-Leistiko trial that “other acts” evidence would only be useful to show propensity because “the defense is not that it was somehow accidental, it’s that it did not happen, in fact” and by pointing to the defendant’s opening statement that he did not commit the charged act (internal quotation marks omitted)), with State v. Jones, 258 Or App 1, 5, 308 P3d 347 (2013) (concluding that arguments under Leistiko were unpreserved — and reviewing for plain error — where the defendant’s contention at his pre-Leistiko trial was that the disputed evidence “was inadmissible because it did not satisfy certain of Johns’s requisites,” not that “the evidence was categorically admissible because * * * his theory at trial was that *** the crimes never took place” (internal quotation marks omitted)). But here, defendant argued that the evidence did not satisfy Johns and was unduly prejudicial; he did not make it clear to the trial court that the other acts evidence should not be admitted because he had not conceded the charged act.
Starting from the premise that ‘“historical practice’ is the primary guide for determining whether an evidentiary rule is so fundamental as to be embodied in the federal constitution,” Williams, 357 Or at 17, the court observed a distinction between historical practices for admitting evidence in child sexual abuse cases and cases where the defendant is charged with some other crime:
“In [United States v. LeMay, 260 F3d 1018 (9th Cir 2001)], the Ninth Circuit considered the ‘historical practice’ prohibiting the use of ‘other acts’ to prove*365 the charged crime and concluded that ‘the general ban on propensity evidence has the requisite historical pedigree to qualify for constitutional status.’ 260 F3d at 1025. If this were a case in which defendant had been charged with crimes other than child sexual abuse, we might be persuaded that due process incorporates that historical practice and therefore not only requires the application of OEC 403, but also precludes the admission of ‘other acts’ evidence to prove propensity. However, in this case, defendant is charged with child sexual abuse, and the historical practice with respect to such charges is not as clear.”
Id. (emphasis added). The court therefore limited its holding to charges for child sexual abuse and explained that it “need not, and [did] not, decide whether OEC 404(4) may be constitutionally applied in other types of prosecutions.” Id. at 20 n 19.
Defendant does not argue that the analytical framework set out in Williams with respect to prosecutions for child sexual abuse should apply differently in this case. We express no opinion on that question.
In State v. Pitt, 352 Or 566, 580-81, 293 P3d 1002 (2012), the court explained that, if the defendant does not concede the charged act, other acts evidence offered to prove intent on the doctrine of chances theory should not be admitted unless the court gives a Leistiko jury instruction and the state “introduce[s] evidence at trial sufficient to permit the factfinder to find beyond a reasonable doubt that, in fact, defendant had [committed the act], as charged.” In this case, defendant does not argue that the trial court erred in admitting the evidence of defendant’s identity theft convictions because the state failed to present sufficient evidence that defendant possessed the identifications, as charged. Though the state moved to admit that evidence in limine, the court ruled on the state’s motion to admit that evidence after the state had presented evidence of defendant’s involvement in the alleged crimes.
Evidence is relevant under OEC 401 if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The state offered evidence of defendant’s past crimes of identity theft as relevant to defendant’s intent on a doctrine of chances theory, and the trial court determined the probative value of the evidence, under OEC 401, by examining the similarity of other acts to the charged act under factors announced in Johns. Defendant does not contend that the evidence here was not logically relevant under that analysis.
In focusing on the doctrine of chances, we do not mean to foreclose the possibility that evidence like that at issue in this case might be relevant on some theory other than doctrine of chances. In its supplemental briefing, the state suggests that the evidence would be relevant because “the jury could infer because defendant knew how to deceive or defraud using another person’s identification from his prior identity theft convictions, he did not ‘accidentally’ and ‘innocently’ possess the charged victims’ pieces of stolen identification.” (Emphasis in original.) For his part, defendant asserts that the evidence was offered to prove intent on a doctrine of chances theory, and our review therefore is limited to that theory of relevance. Given the specific claim of error advanced by defendant and our resolution of that claim, we need not address those arguments.
ORS 137.750(1) requires a trial court to determine whether a defendant is eligible for alternative sentencing credits, and, if so, which ones:
“When a court sentences a defendant to a term of incarceration upon conviction of a crime, the court shall order on the record in open court as part of the sentence imposed that the defendant may be considered by the executing or releasing authority for any form of temporary leave from custody, reduction in sentence, work release or program of conditional or supervised release authorized by law for which the defendant is otherwise eligible at the time of sentencing, unless the court finds on the record in open court substantial and compelling reasons to order that the defendant not be considered for such leave, release or program.”