State v. Hampton

843 P.2d 483, 117 Or. App. 89, 1992 Ore. App. LEXIS 2326
CourtCourt of Appeals of Oregon
DecidedDecember 9, 1992
DocketC91-01-30249; CA A69310
StatusPublished
Cited by1 cases

This text of 843 P.2d 483 (State v. Hampton) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hampton, 843 P.2d 483, 117 Or. App. 89, 1992 Ore. App. LEXIS 2326 (Or. Ct. App. 1992).

Opinions

ROSSMAN, J.

Defendant appeals his conviction for assault in the second degree, ORS163.175, for hitting a police officer in the head with a beer bottle. He assigns error to the trial court’s admission of evidence that he was on parole or probation when he committed the act and to the denial of his motion for a mistrial. We affirm.

On January 20, 1991, at approximately 10 p.m., Deputy Sheriff Reese was on routine patrol when a car pulled alongside him, but slowed suddenly, as if the driver were trying to avoid being noticed. He decided to follow it. He thought three or four people were in the car. He temporarily lost sight of it but soon found it parked in the driveway at Freauf s house. He determined that it had been reported stolen and called for cover. Deputies Gustafson and Harper responded. All of the officers were in uniform.

Reese and Gustafson went to the house and knocked on the front door. Freauf consented to the officers’ searching the house. After looking through the ground floor of the house, they saw a stairway leading to the basement. A single light was on at the top of the stairs. They went down into the dimly lit half-basement and found Freauf s son, Dement, standing in front of a fireplace and fumbling with something on the mantle. They announced that they were sheriffs deputies and told Dement to raise his hands. He hesitated but complied after the officers drew their guns. On the mantle they found various drug paraphernalia and a plastic bag that contained some drug residue. They arrested Dement for possession of a controlled substance and took him outside.

A few minutes later, Dement’s father told them that another person was still in the basement. Reese and Gustafson went down again and found defendant crouched behind a chair. The officers testified that they thought that they had identified themselves to him, but were not certain. Defendant fought back when Reese tried to handcuff him, and he scrambled to the stairs with Reese hanging on. Gustafson was a few steps behind as they went upstairs and onto the back porch. Reese and defendant were still struggling when they reached the top. Gustafson testified that he [92]*92saw defendant grab a bottle that had been “sitting on a kind of a ledge there.”

‘ T saw his hand come down and grab the bottle and I yelled at [Reese] that, you know, hey, he’s got a bottle. I then heard the bottle — a crashing noise, I heard the bottle break.”

He did not actually see defendant strike Reese, because Reese’s body was blocking the view. He did see broken glass fall to the floor at the top of the stairs.

Reese testified that he and defendant wrestled as they went up the stairs and then

“stumble[d] out the screen door and there were a bunch of bottles there, and I remember some of them getting knocked over, [I was] kind of hunched over, almost like a head-lock type of situation, both of us were hanging on to him. * * * There were a couple of steps off the porch on to the dirt there, and I could see [defendant] reach down and pick up a bottle, and the next thing I knew he hit me with the bottle.”

Reese conceded that he did not actually see defendant hit him, because he was facing the ground, and he said that he did not feel the blow itself, but felt the glass tumbling around his head.

Harper heard yelling and glass breaking and went to the back of the house. He arrived just as the three men were emerging from the porch. He saw defendant flailing his arms and saw the men fall from the porch and onto the hood of a car, but he did not see the incident with the bottle. He rushed to help subdue defendant, arrest him and place him in handcuffs. Reese said to Harper that defendant had hit him on the head; a knot on his forehead was beginning to discolor.

Defendant had complained about being injured, so, after the arrest, Harper took him to the hospital for a checkup. Harper testified that, as they were leaving the hospital,

“[Defendant] told me, his exact words were, T can’t believe those wienies, they are lucky I wasn’t throwing blows.’
((# ¡k ‡ #
“I told him, I said, ‘What are you talking about? You hit one of them in the head with a beer bottle. ’ And then his reply was, ‘Well, that was only after they pissed me off.’ ”

[93]*93Before trial, the state sought a ruling on the admissibility of evidence that defendant was on parole and out of contact with his parole officer when the incident happened. It argued that the evidence would show that defendant had a motive to commit an assault. Defendant argued that the evidence was irrelevant and unfairly prejudicial. The court declined to rule until a witness was actually testifying but acknowledged defendant’s continuing objection.

The state’s case opened with testimony from a parole and probation office intake person, who testified that defendant had come in to make an appointment and that, after giving him an appointment slip, she asked if there was an outstanding warrant for his arrest. She said that defendant said no, and she asked him to stay until she “clarified it and resolved the matter.” He then asked if he could go to the restroom. “I said sure but would he please come back, and that was the last we saw of him.” She testified that she later confirmed that there was an outstanding warrant for his arrest.

Defendant’s parole officer testified that she had never met defendant and that he did not keep his appointment with her and never submitted a monthly report form. She testified that, when a client fails to keep an appointment, she typically reports the violation to the releasing authority and an arrest warrant is issued.

Defendant moved for a mistrial during the first recess on the ground that the testimony of the parole and probation office employees was irrelevant, unfairly prejudicial and inadmissible evidence of prior bad acts. OEC 402; OEC 403; OEC 404(3).1 Defendant concedes that the evidence might have been relevant if he had been charged with escape or resisting arrest, but not here, where he is charged with committing an assault. The state argues that

“[t]he reason the evidence would be relevant to prove defendant’s motivation to commit those crimes is the same reason [94]*94the evidence is relevant to prove his motivation to commit assault on Deputy Reese.”

The indictment charged that defendant

“did unlawfully and knowingly cause physical injury to Multnomah County Sheriffs Office Deputy Michael Reese by means of a dangerous weapon, to wit: a bottle, by breaking it over his head.”2

Evidence is relevant 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.” OEC 401. The state argues that the evidence was relevant, because a rational juror could reasonably infer that “defendant sought to get away from the officer because he knew outstanding charges were pending against him and that his parole/probation status — ergo his freedom — was in jeopardy” and that that was his motive, the reason that he “vigorously fought to ‘try to get away.’ ”

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Related

State v. Hampton
855 P.2d 621 (Oregon Supreme Court, 1993)

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Bluebook (online)
843 P.2d 483, 117 Or. App. 89, 1992 Ore. App. LEXIS 2326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hampton-orctapp-1992.