State v. Strickland

303 Or.App. 240

463 P.3d 537

STATE of Oregon, Plaintiff-Respondent,

v.Michael Aaron STRICKLAND, aka Michael Strickland, Defendant-Appellant.

A165019

Court of Appeals of Oregon.

Argued and submitted October 12, 2018.

April 1, 2020

Robert E. Barnes, California, argued the cause for appellant. Also on the briefs were Barnes Law, California, and Mark J. Geiger.

Susan G. Howe, 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 Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction, after a bench trial, for ten counts each of menacing and unlawful use of a weapon, and one count of disorderly conduct. The charges arose out of an incident at a demonstration in downtown Portland at which defendant brandished a handgun at a crowd when he felt threatened. Defendant raises six assignments of error. We write to address only defendant's contention that the trial court erred in granting the state's motion in limine to exclude as irrelevant evidence of a prior incident, in which defendant was injured by a person whom he had surreptitiously filmed. Defendant contends that the evidence was relevant to show his state of mind in support of his contention that he brandished the handgun in self-defense. We review the trial court's ruling excluding the disputed evidence for legal error, State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999) ("[W]e must review determinations of relevance for errors of law."), conclude that the trial court correctly excluded the evidence, and therefore affirm.

The facts are undisputed. Defendant attended a public demonstration in Portland with a video camera and filmed speakers and demonstrators. He openly carried a semi-automatic handgun in a hip holster. The state presented evidence that defendant was known to several of the demonstrators, and they decided to confront him and tell him to leave the demonstration. Four demonstrators wearing bandanas over their faces approached defendant aggressively, calling him a racist and telling him in strong language to get away. As defendant backed away, the demonstrators continued to move toward him. One of the demonstrators noticed defendant's handgun and pushed defendant away. Defendant responded that he was not a racist and told the person, "Take your hands off me."

Defendant continued to move backwards, holding his camera in one hand and twice placing his other hand on the handgun, which was holstered at his hip, causing people in the crowd to cry out. A person carrying a large news camera stepped between defendant and the four bandanaed demonstrators, creating some distance between them as defendant continued to back away. In the conduct that gave rise to the instant charges, defendant took the handgun from its holster, held it with two hands, and scanned the crowd with it from left to right. After placing the handgun back in its holster, defendant continued to engage with and speak to those in the crowd. Defendant ultimately walked away from the demonstration and was arrested. Based on his wielding of the handgun, defendant was charged with 10 counts of menacing and unlawful use of a weapon and one count of disorderly conduct.

Before trial, the prosecution anticipated that defendant would seek to introduce evidence—in support of a defense of self-defense—that he had been involved in an altercation the year before in which his arm had been broken after he had surreptitiously filmed a person at a restaurant. The person involved in that altercation had no connection to the demonstration or to the conduct charged in this case. The state asserted that evidence of the earlier event was irrelevant to the charged offenses and filed a motion in limine to exclude it. The trial court agreed and granted the state's motion.

On appeal, defendant asserts that the evidence of the prior incident was relevant to show that he acted in self-defense in brandishing the handgun. ORS 161.209 provides that a person is justified in using physical force against another person for self-defense

"from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose."

Defendant contends that the evidence of the prior incident would show "what force defendant reasonably believed was necessary to defend himself in the moment," and would have helped the trier of fact understand why defendant feared for his safety and felt the need to protect himself by brandishing a handgun.

Defendant correctly notes that the threshold for relevance of evidence is low. See OEC 401 (relevant evidence is evidence "having 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 it"). Evidence is admissible if it "can support a reasonable inference that is material to the case." State v. Turnidge (S059156) , 359 Or. 507, 512-13, 373 P.3d 138 (2016). Here, we conclude that the disputed evidence does not meet that low threshold.

The legal standard for assessing the reasonableness of a person's belief about the need for force or the extent of force necessary turns on an objective evaluation of the circumstances in which physical force has been used or threatened, and not on the personal perceptions of the individual defendant. State v. Bassett , 234 Or. App. 259, 228 P.3d 590, rev. den. , 348 Or. 461, 234 P.3d 983 (2010) ("A defendant's subjective ‘honest belief’ that a perceived threat is great or imminent is not enough to justify" the use of...