[DV_listserv] COA case

[Domestic Violence issues]

State v. Scott (9/17/14)

Summary: Defendant appeals a judgment of conviction arising out of a bench trial,  during which defendant was convicted of assault in the second degree (Count 2), ORS 163.175, and found guilty of assault in the fourth degree (a lesser-included charge of 4 Count 1, assault in the second degree, ORS 163.175) and unlawful use of a weapon (Count 4), ORS 166.220. Defendant argued under OEC 404(1), that the trial court erred by excluding evidence that the complainant had assaulted defendant 10 years previously.

Holding: Court concludes that the  trial court erred in excluding that evidence, and further conclude that that error was not harmless. Case is reversed and remanded.

Facts: At trial, the Defendant claimed self-defense. To support the claim, defense counsel asked complainant (court's word) whether he had assaulted the defendant previously. Complainant answered that he had. Defense counsel asked him to be specific and the prosecutor objected. The court sustained the objection and did not allow defense counsel to inquire further based the fact that the assaultive incident(s) were remote in time (8-9 years ago) and that it was a "prior bad act." However, COA determined that "[w]hen a defendant raises the defense of self-defense, "evidence of the alleged victim's prior violent acts toward the defendant is admissible under OEC 404(1)." Beisser, 258 Or App 5 at 334 (citing State v. Lunow, 131 Or App 429, 885 P2d 731 (1994))."

http://www.publications.ojd.state.or.us/docs/A152652.pdf

Erin S. Greenawald
Sr. Assistant Attorney General
Domestic Violence Resource Prosecutor
Oregon Department of Justice
Criminal Justice Division
(503) 378-6340

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