State v. Olson

430 P.3d 582, 294 Or. App. 420
CourtCourt of Appeals of Oregon
DecidedOctober 17, 2018
DocketA160903
StatusPublished

This text of 430 P.3d 582 (State v. Olson) 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. Olson, 430 P.3d 582, 294 Or. App. 420 (Or. Ct. App. 2018).

Opinion

DeVORE, J.

*421Defendant appeals a judgment of conviction for second-degree assault, ORS 163.175, and unlawful use of a weapon, ORS 166.220. She assigns error to the trial court's admission of evidence under OEC 401, 402, and 404(4), arguing that evidence of her acts one year after the charged offenses was irrelevant and inadmissible. Defendant contends that the error was not harmless because it undermined her credibility. The state responds that the evidence was relevant but, if not, that it had little likelihood of affecting the verdict. Assuming without concluding that the trial court erred, we determine that any error was harmless. Accordingly, we affirm.

Defendant was involved in an assault that occurred in April 2014. She had discovered that her boyfriend had an affair with the victim. After that discovery, defendant sent a series of text messages to the victim, expressing awareness of the relationship and making numerous violent threats, including to "smash [the victim's] fucking head in" and to kill the victim. The next day, defendant *583appeared while the victim was retrieving an item from her vehicle in front of her grandmother's house. Before the victim could exit her car, defendant jumped on the victim and began beating her. Defendant hit the victim repeatedly with her fists. According to the victim and the grandmother, defendant also hit the victim with a liquor bottle she found in the backseat. After the attack, defendant left the scene, and the victim was taken to the hospital. Defendant texted the victim again to say, "Cheater chea[t]er pum[p]kin eater."

Approximately one month later, a police officer interviewed defendant as part of an investigation into the assault. During the recorded interview, defendant yelled at the officer. She acknowledged sending the text messages, but adamantly denied attacking the victim. Defendant blamed the injuries on the victim's boyfriend.

Defendant was charged with second-degree assault, ORS 163.175, and unlawful use of a weapon, ORS 166.220. In July 2015, more than a year after the assault, defendant and the victim both appeared at the Linn County Courthouse for a trial date, which was then rescheduled. According to the *422victim, as she and her family prepared to leave the courthouse, defendant approached their vehicle, yelling profanities and gesturing with her middle finger.

In October 2015, the case was tried to a jury. The state called the victim as a witness, and she testified about threats leading up to the charged incident, the attack in which defendant assaulted her with a liquor bottle, and resulting injuries. The state called the victim's grandmother as a witness, who similarly described defendant beating the victim with the bottle, and described the resulting injuries. The state supplemented the testimony with photographs depicting defendant's threatening text messages, the victim's injuries (including swelling and dark bruising on her face, chest, arms, and legs), and the car in which the assault took place (including the liquor bottles therein). In addition, the jury watched the entire video recording of the police officer's interview with defendant.

During its case-in-chief, the state asked the victim about the July encounter with defendant outside the courthouse. Defendant objected on relevancy grounds. The trial court overruled the objection. The state asked:

"[PROSECUTOR]: What happened in July?
"[VICTIM]: Oh, we had court and showed up here and court went as usual. And after court was over with, my grandmother, my sister, and I, and [the victim advocate], we walked out to my truck to leave and got in the truck. And [defendant] had left the courthouse and went around the municipal building and came up behind me and started flipping me off and yelling at me.
"[PROSECUTOR]: What was she yelling at you, do you remember?
"[VICTIM]: Cuss words and-yeah, cuss words.
"[PROSECUTOR]: How did that make you feel?
"[VICTIM]: I was intimidated, I was scared. And my grandma was with me too, and she was scared. She just told me, "Drive, drive." And then we got around the corner and I pulled over to call [the victim advocate] to let her know what had happened. And she hadn't even made *423it back into the courthouse. And they just told me to call down at the police station."1

The state's closing argument focused on a few key pieces of evidence: defendant's text messages and testimony; the victim's and grandmother's testimony regarding the assault and injuries; and circumstantial evidence of defendant using the liquor bottle, *584including pictures and two liquor bottles collected as evidence from the victim's car. The state argued that defendant "lied from the beginning," citing, in particular, her interview with the police. The state did not mention the courthouse encounter.2

Defendant's strategy was to acknowledge that she had assaulted the victim but to cast doubt on her having wielded a liquor bottle. To that end, she attacked the credibility of the victim and the grandmother. Defendant emphasized the lack of DNA evidence on the liquor bottles, and she scrutinized the victim's injuries to question whether a liquor bottle was the cause. On the stand, defendant made several admissions-her "blind rage," her texts and death threats, and the assault itself. Defendant also admitted she lied to the police officer investigating the assault. She denied, however, that she used a liquor bottle as a weapon, and she claimed that she hit the victim with her fists alone. In closing arguments, defendant urged the jury to enter a guilty verdict for only the lesser-included offense of fourth-degree assault.

The jury unanimously convicted defendant of both second-degree assault and unlawful use of a weapon.

*424On appeal, defendant assigns error to the trial court's decision to admit evidence of her hostile conduct more than a year after the charged incident. She contends that the evidence was inadmissible under OEC 401, 402, and 404(4) because it was not relevant to prove the sole issue disputed at trial-whether she used a liquor bottle to attack the victim. Defendant contends that the error was not harmless because it undermined her credibility, casting her as an "aggressive and out-of-control person." She argues the case turned on a "credibility contest" between herself, the victim, and the victim's grandmother, because the question of whether she struck the victim with a bottle was reduced to whose testimony the jury believed.

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Related

State v. Davis
77 P.3d 1111 (Oregon Supreme Court, 2003)
State v. Henderson-Laird
380 P.3d 1066 (Court of Appeals of Oregon, 2016)
State v. Basua
380 P.3d 1196 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
430 P.3d 582, 294 Or. App. 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olson-orctapp-2018.