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by: Rankin Johnson IV • March 16, 2018 • no comments

Written by Rankin Johnson, OCDLA

Evidence - Other-Bad-Acts

Evidence of prior assaults was inadmissible character evidence, rather than admissible evidence of hostile motive or lack of mistake.

Defendant was charged with assaulting his girlfriend. The state offered evidence of prior assaults on other romantic partners, to prove motive (that defendant had a recurring desire to assault his romantic partners) or to disprove an argument that the assault was committed by mistake. Under the facts of the case, the court concluded that neither theory of admissibility was viable. The trial court judgment and the Court of Appeals opinion were reversed, and the matter remanded for new trial.
State v. Tena, 362 Or 514 (2018) (Landau, S.J.)

Appeals - Mootness
Appeals - Cross-Appeals and Cross-Assignments of Error
Respondent’s notice of cross-appeal was dismissed as untimely. The Supreme Court declined to decide whether that was error, because respondent could obtain the same relief through cross-assignments of error, and thus any error in the dismissal was moot.

Respondent on appeal was a post-conviction petitioner in the trial court. He prevailed on some claims and did not prevail on others. The post-conviction court ordered a new trial.
Defendant Superintendent appealed. Petitioner, now respondent, cross-appealed, but the cross-appeal was dismissed as untimely. While the appeal proceeded in the Court of Appeals, respondent sought review of the dismissal of the cross-appeal.
The Supreme Court granted, then dismissed, the petition. Respondent sought to defend the judgment of the post-conviction court and did not seek any additional relief. Accordingly, cross-assignments of error were sufficient, and a cross-appeal could provide no additional relief.
Behrle v. Taylor 362 Or 412 (2018) (Walters, J.)