State v. Cardona
State v. Cardona
Opinion of the Court
*58Defendant was charged with assault in the fourth degree, ORS 163.160, for allegedly punching his ex-girlfriend on August 5, and with criminal mischief in the second degree, ORS 164.354, for allegedly damaging property at his ex-girlfriend's apartment on August 6. A jury convicted him of assault and acquitted him of criminal mischief. On appeal, defendant assigns error to the trial court's denial of his request for a limiting instruction. The requested instruction would have told the jury not to rely on evidence of defendant's acts on August 6 to infer defendant's guilt of the alleged assault on August 5. For the reasons that follow, we agree with defendant that the trial court erred in concluding that the evidence was admissible as intent or motive evidence under OEC 404(3) and in refusing to give the requested instruction on that basis. Accordingly, we reverse and remand the assault conviction and otherwise affirm.
DEFENDANT'S TRIAL
Given the posture of this case, we summarize the relevant evidence offered by both the state and defendant at trial, noting any factual *426disputes, rather than stating the facts in the light most favorable to one party. Evidence for which the source is not identified indicates an uncontested fact in the trial evidence.
Defendant and A are former romantic partners who have a son together. In early June, A accepted an offer to deploy to Guantanamo Bay with the Coast Guard Reserves. Expecting to depart soon, A asked defendant to move into her apartment to care for their son, which defendant did in late June. She and defendant shared a bed and were "intimate" after he moved in but did not resume a romantic relationship. Soon, A learned that she was not deploying after all. As a result, defendant planned to move out once he found other housing. Defendant was still living in A's apartment in early August, however, when A returned from a three-week-long Coast Guard training.
*59According to the state's evidence, on August 5, defendant implied that he wanted to have sex with A, but A was not interested, and defendant "started yelling and getting upset" and told A that "he was going to have sex with [her] whether [she] wanted to or not." A left the apartment and walked around the block. When she returned, defendant was still there, and she asked him to leave, but he refused. She and defendant "started getting in a fight," and, at some point, defendant "got on top of" A on the bed and punched her in the lip. A was not sure whether defendant intended to hit her or a pillow, but she "got punched."
According to defendant's evidence, defendant never punched A on August 5. Defendant did not punch her and was not even in the apartment at the time of the purported fight-he was at school. Defendant does not know how A injured her lip.
A spent the night of August 5 at a friend's house. She sent a text message to defendant saying that he could stay that night at the apartment and then needed to find "somewhere else to go."
The next morning, August 6, A returned to the apartment after defendant had left. A gathered defendant's belongings, put them on the porch, and texted defendant to come pick them up. Defendant, who did not have a key, arrived that evening. In a text message, he asked A to let him inside to use the bathroom. A responded that she was not home, even though she was, because she "didn't want him to try to get in the house."
According to the state's evidence, defendant banged on the apartment door until he broke through it. A ran outside. Defendant then entered the apartment, smashed a $1,000 television that belonged to A, stuck a steak knife in a $300 painting that belonged to A, and damaged a window in the apartment. After defendant left, the police arrived and documented the damage.
According to defendant's evidence, defendant was angry and was pushing on the door in the hopes that it would open, but he did not mean to break the door. Defendant damaged the television, but it was his own television, not A's.
*60Defendant did not stick a knife in the painting, although he did kick it with his foot, and in any event the painting belonged to him. (Defendant did not testify about the window.)
Based on its theory of the case, the state charged defendant with fourth-degree assault, for allegedly punching A on August 5, and second-degree criminal mischief, for allegedly damaging A's property on August 6. Before trial, the court ruled that the alleged damage to the apartment door and window would not be considered as part of the criminal mischief charge (because A did not own the apartment) but that the state would be allowed to put in evidence about the door and window as part of "the story of what happened" and as relevant to whether defendant acted recklessly on August 6.
The case was tried to a jury. Defendant requested a limiting instruction with respect to the evidence from August 6. Specifically, he asked the trial court to instruct the jury that, "[i]f you find that the defendant committed the acts alleged" on August 6, "you may not use this evidence for the purpose of drawing the inference that because [the] defendant *427committed the acts alleged on August 6, 2015, the defendant may be guilty of the crime of Assault in the Fourth Degree alleged on August 5, 2015."
The trial court denied defendant's request for the limiting instruction. It reasoned that the incidents on *61August 5 and 6 were "related to each other" and that "one could help prove the other in terms * * * of determining the defendant's mental state." It thus ruled that the evidence was admissible for a nonpropensity purpose under OEC 404(3). The parties disagree as to whether the court also implicitly conducted OEC 403 balancing at that time.
In closing argument, the state urged the jury to view the alleged assault on August 5 and the alleged property damage on August 6 as connected by a common theme of defendant reacting in anger when he did not get what he wanted. The prosecutor argued:
"[W]hen the defendant didn't get what he wanted, [A] suffered those consequences.
"On August 5th when he was demanding to have sex with her and she didn't want to, she got punched. On August 6th when he wanted to come back to the apartment that she'd kicked him out of and [she] wouldn't let [him] in, she suffered the property damage."
Later, the prosecutor reiterated that defendant was "frustrated, angry, and upset" on August 5 "because he didn't get what he wanted," which was sex with A, "[a]nd then on August 6th, * * * when he comes back to [A's] home and he sees all of his property out on the porch, there's the anger that drives him to drive his shoulder multiple times into the door, breaking it down."
The jury found defendant guilty of the assault on August 5. It acquitted him of the alleged criminal mischief on August 6. On appeal from the resulting judgment of conviction, defendant assigns error to the trial court's denial of his request for a limiting instruction.
ADMISSIBILITY UNDER OEC 404(3)
In reviewing the denial of a request for a limiting instruction, the focus of our inquiry is whether evidence properly admitted for one purpose was inadmissible for another purpose. State v. Berg ,
The evidence of defendant's alleged acts on August 6 was admitted primarily to prove that defendant committed the charged crime of criminal mischief on August 6. The state also urged the jury, however, to consider that evidence in deciding whether defendant committed another charged crime, assault, on August 5. Defendant contends that the evidence that he damaged property at A's apartment on August 6 had no relevance to whether he committed assault on August 5, except as improper character evidence, and that the trial court therefore erred in denying his request for a limiting instruction.
*428The state counters that the evidence from August 6 was admissible, under OEC 404(3), as relevant to defendant's hostile motive on August 5. In the state's view, the jury therefore could consider the evidence from August 6 in deciding defendant's guilt on August 5, and the trial court correctly denied the instruction.
Under OEC 404(3), and subject to OEC 403 balancing, evidence of other crimes, wrongs, or acts is admissible in a criminal trial for noncharacter purposes, including to establish defendant's motive for the charged act. State v. Tena ,
Whether evidence is relevant to motive is a question of law. State v. Carreiro ,
Here, the state's theory that the jury could properly consider the evidence from August 6 as relevant to defendant's motive to commit assault on August 5 is untenable. According to the state (and as argued to the jury), defendant punched A on August 5 because he was "frustrated, angry, and upset" that she would not have sex with him on that date, and he damaged property at A's apartment on August 6 because he felt "anger" upon seeing his belongings on the porch and about not being let into the apartment. Those are similar emotions, but they are not the same motive. If the state could admit other-acts evidence solely by showing that a defendant was "angry" or "upset" each time that he committed a bad act, criminal trials would be very different *64than the evidence rules contemplate. That is not the type of connection between incidents that makes other-acts evidence relevant for motive. If a defendant allegedly committed two acts close in time because he was angry about one thing , then evidence regarding one act might be relevant to defendant's motive for the other act. See
We therefore reject the state's argument that evidence of defendant causing property damage at A's apartment on August 6 was *429relevant to defendant's motive for the alleged assault on August 5. Instead, we agree with defendant that, as to the assault charge, the evidence from August 6 was precisely the type of propensity evidence that we have warned against admitting under OEC 404(3) in the cloak of motive. See Wright ,
In arguing for a contrary result, the state relies on State v. Hagner ,
This case is different from Hagner . Unlike the situation in Hagner , the state never posited that the alleged assault on August 5 was motivated by preexisting hostility toward A. Rather, it argued that defendant became angry or upset with A on August 5, shortly after A returned home from a three-week absence, because A did not want to have sex with him that day. There was no evidence of hostility toward A before August 5, nor did the state argue that defendant was hostile toward A before August 5.
Given the evidence and the state's arguments, it would be illogical to infer defendant's motive for the alleged assault on August 5 from his actions on August 6. See Wright ,
*66from August 5 into August 6 and contributed to defendant's motive to commit criminal mischief on August 6.
The trial court erred when it concluded that evidence of defendant's acts on August 6 was admissible under OEC 404(3) as relevant to defendant's motive on August 5 and, consequently, erroneously denied defendant's request for the limiting instruction.
PREJUDICE
We next consider whether the trial court's denial of the limiting instruction was harmless. The state does not contest prejudice. However, a trial court's error in refusing to give a limiting instruction is not necessarily prejudicial. Langley ,
Whether defendant assaulted A on August 5 came down to a credibility contest between defendant and A. Cf. Kaylor ,
REMAND
Finally, we address briefly the proceedings on remand. While this appeal has been pending, the Supreme Court decided State v. Baughman ,
The state has never argued-in the trial court or on appeal-that the evidence from August 6 is admissible *68under OEC 404(4) *431to prove that defendant committed assault on August 5. However, it is unclear when and under what circumstances trial courts "must" address admissibility under OEC 404(4). See Baughman , 361 Or. at 404-05,
In light of Baughman and Tena , we note that our remand should not be interpreted as prohibiting the trial court from analyzing OEC 404(4) admissibility before deciding whether a new trial is necessary.
Judgment of conviction for fourth-degree assault reversed and remanded; otherwise affirmed.
Because we are reversing the assault conviction based on defendant's first assignment of error, we need not address defendant's second and third assignments of error, which challenge other aspects of his assault conviction.
See ORS 164.354 (a person who intentionally or recklessly damages property of another in an amount exceeding $500 commits second-degree criminal mischief).
Defendant's proposed instruction contained a typo in one of the dates, which was clearly a typo in context, and the state does not assert otherwise or argue that the typo was legally significant. To avoid confusion, we use the correct date.
In the trial court, the state argued that the evidence from August 6 was relevant to defendant's "intent" on August 5, while on appeal the state argues that it was relevant to defendant's "hostile motive" on August 5. "[E]vidence offered to prove hostile motive is also probative of intent," State v. Hagner ,
Defendant did not request a limiting instruction to prevent the jury from considering evidence from August 5 in deciding whether he committed criminal mischief on August 6, and we express no opinion on the relevance of defendant's acts on August 5 to the alleged crime on August 6.
Except for the motive theory of admissibility, which we have rejected, the state does not contest the clarity or correctness of defendant's proposed jury instruction. See Berg ,
Although the jury acquitted defendant on the criminal mischief charge, it does not follow that it necessarily found that defendant did not commit the alleged acts on August 6. To the contrary, the jury could have found that defendant did everything that the state alleged on August 6 and still acquitted him of second-degree criminal mischief. That is because second-degree criminal mischief requires damage to property of another in excess of $500. ORS 164.354. The alleged damage to the apartment door and window were not included in the charge, the painting was valued at only $300 (and defendant contended that it belonged to him), and defendant admitted to damaging the $1,000 television but testified that it was his television. Accordingly, the jury could have acquitted defendant simply because it was not convinced beyond a reasonable doubt that A owned the television. The acquittal on the criminal mischief charge therefore does not affect our prejudice analysis as it might in other circumstances.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.