State v. Brown

303 Or.App. 304

463 P.3d 526

STATE of Oregon, Plaintiff-Respondent,

v.Anthony Gordon BROWN, Defendant-Appellant.

A165124

Court of Appeals of Oregon.

Argued and submitted April 11, 2019, Portland Community College, Portland.

April 1, 2020

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Lagesen, Judge, and Shorr, Judge.

SHORR, J.

Defendant appeals from a judgment of conviction for six counts of second-degree burglary, ORS 164.215. Defendant assigns error to the trial court's admission of evidence relating to a seventh burglary that defendant admitted committing that was not charged in this case. The court admitted that evidence under OEC 404(3) for the purpose of proving defendant's identity in the six charged burglaries. Defendant argues that the court erred in admitting the evidence, because, although the state presented a number of similarities between the uncharged and charged burglaries, the similarities were not sufficiently "distinctive" to prove that all seven crimes were committed by the same person. Thus, defendant asserts, the evidence of the seventh uncharged burglary was not properly admissible to prove defendant's identity in the six charged burglaries under OEC 404(3). For the reasons stated below, we conclude that the trial court did not err in ruling that the evidence was admissible under OEC 404(3). Accordingly, we affirm.

"We review a trial court's decision to admit other-acts evidence in light of the record before the trial court at the time of its decision." State v. Morrow , 299 Or. App. 31, 33, 448 P.3d 1176 (2019). In this case, the trial court initially ruled on the admissibility of the evidence at a pretrial hearing; however, defendant assigns error not to that ruling but to the court's subsequent admission of the evidence at trial. Therefore, we consider the evidence presented both at the pretrial hearing and at trial.

In the early morning hours of March 16, 2015, police were dispatched to a burglary in progress at the Coffee Rush café in Oregon City. Police found defendant lying on an embankment near the café and arrested him. A mask and a pry bar were located on the embankment near where defendant was discovered, and gloves were found on defendant. Defendant was wearing a black leather jacket, a blue and white "checkered pattern" hooded sweatshirt (hoodie), and a chain attached to his wallet. Defendant admitted to police that he had committed the Coffee Rush burglary because he was homeless and that he just got "desperate." Defendant admitted to using a "pry bar" to force open the door to the café and to stealing money from the "till." Without going into detail, defendant suggested that he had committed other burglaries and that his "method of entry" was to use a pry bar to gain entry and that "some doors are kind of rough." Defendant ultimately pleaded guilty to the Coffee Rush burglary.

After defendant was arrested for the Coffee Rush burglary, he was charged in this case for six other burglaries that had been committed in Lake Oswego and Oregon City within a few months before the Coffee Rush burglary. The first three burglaries occurred on December 12, 2014, at three restaurants on South State Street in Lake Oswego: Go Fish Go Sushi, Laughing Planet Café, and Pizza Schmizza (Counts 1, 2, and 3, respectively). The trial court found that those three restaurants were within a block of each other. The next two burglaries occurred during the late-night, early-morning hours between December 15 and 16, 2014, at two restaurants on Beavercreek Road in Oregon City: Casa Ixtapa and Jimmy Johns (Counts 4 and 5, respectively). The state presented evidence that those two burglaries were within the same shopping center. The sixth burglary occurred on March 1, 2015, at the Highland Still House Pub in Oregon City. The state presented evidence that all of the burglaries, including the Coffee Rush burglary, occurred within approximately eight miles of each other. In each of the six charged burglaries, the suspect had used a pry bar to force open the door and had stolen money from the cash register. Surveillance video showed that the suspect wore a black jacket, a blue plaid hoodie, and a wallet chain, and carried a pry bar.¹

Defendant waived his right to a jury trial, and his case was tried to the court. Before trial, the state filed a "notice of intent to admit OEC 404 evidence." Specifically, the state sought to admit evidence of the Coffee Rush burglary to prove defendant's identity. In its notice and memorandum, the state asserted that the distinctive clothing worn by defendant when he was arrested for the Coffee Rush burglary—a black jacket over a blue plaid hoodie, gloves, a mask, and a wallet chain—was nearly identical to the clothing worn by the suspect in surveillance video from the charged burglaries. Additionally, the state asserted that defendant's method of entry at Coffee Rush with a pry bar was identical to that of the person who committed the charged burglaries. The state noted additional similarities between the Coffee Rush burglary and the six charged burglaries, including that (1) each was committed against a small, local restaurant; (2) at each location, the burglar targeted the cash register; (3) each burglary occurred late at night; (4) the burglar carried the same tools to each—a pry bar and a screwdriver; and (5) each burglary occurred in close proximity to the others.

In response, defendant filed a motion to exclude evidence of the Coffee Rush burglary, and a pretrial hearing was held on the issue. At the pretrial hearing, the state reiterated the arguments in its notice and memorandum regarding the similarities between the Coffee Rush burglary and the six charged burglaries and that the evidence was relevant to prove that defendant was the person who had committed the charged crimes. Defendant argued that the similarities between the seven burglaries were not distinctive enough to be evidence of identity under OEC 404(3). In defendant's view, the fact that a burglary was committed at a commercial establishment at night by forced entry of a locked door was not distinctive, nor was the targeting of the cash registers because it was where "someone entering that business in that fashion * * * would look." Defendant also argued that the time span between the crimes of nearly three months and the fact that they took place in three different cities showed that they were not distinctive. Defendant did not address the similarity between the clothing he was wearing when he was arrested for the Coffee Rush burglary and that of the suspect in the surveillance videos.

The trial court ruled at the pretrial hearing that evidence of the Coffee Rush burglary was admissible for the limited purpose of proving identity under OEC 404(3). The court ruled that the clothing and other circumstances surrounding all seven burglaries were distinctive enough to allow evidence of the Coffee Rush burglary to be admitted for the purpose of proving identity as to the six charged burglaries. Additionally, the court conducted an OEC 403 balancing test and determined that the need for the evidence outweighed any risk of undue prejudice.²

At trial, evidence of the Coffee Rush burglary was admitted. That evidence included photographs of defendant at the time he was arrested, the mask and pry bar that were found nearby, and defendant's black leather jacket and hoodie; testimony of officers who were present when defendant was arrested; and audio recordings of conversations between detectives and defendant immediately after he was arrested on March 16, 2015. Defendant objected to the evidence on the same basis that "we dealt with this morning," i.e. , that the Coffee Rush burglary was not similar enough to the charged crimes for evidence of that burglary to be admitted as other-acts evidence for proving identity under OEC 404(3). The trial court admitted the evidence over defendant's objection.

The trial court found defendant guilty on all counts. The court first found that the same suspect committed the three burglaries on December 12, 2014, and the two burglaries on December 15 and 16, 2014, based on the geographic proximity and "mechanism of entry." The court also found that the blue plaid hoodie was so distinctive as to rise to the level of a "mark of Zorro." State v. Pinnell , 311 Or. 98, 110 n. 18, 806 P.2d 110 (1991). The court stated that it found defendant guilty "without reference to a conviction on the Coffee Rush burglary" because of the distinctiveness of the blue plaid hoodie and his statement to police that his "M. O." was to use a pry bar.

Defendant now appeals, assigning error to the trial court's admission of the evidence related to the Coffee Rush burglary. Defendant argues, as he did to the trial court, that, although there were some similarities between the Coffee Rush burglary and the charged crimes, "there was no signature element that is so distinctive" that it earmarks the crimes as the handiwork of defendant. Accordingly, defendant argues, the evidence should not have been admitted. "We review a trial court's ruling admitting evidence of other acts as relevant to a nonpropensity purpose contemplated by OEC 404(3) for errors of law, and in light of the record that was before the court at the time it made its decision." State v. Jones , 285 Or. App. 680, 682, 398 P.3d 376 (2017) (internal citations omitted).

As a general rule, "[e]vidence 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." OEC 404(3).³ In the context of OEC 404(3), " ...