289 P.3d 290
Or. Ct. App.2012Background
- Defendant appeals a conviction for first-degree criminal mistreatment, strangulation, and witness tampering.
- Trial court denied acquittal on all counts and admitted evidence of defendant's prior verbal and physical abuse of residents.
- The state alleged defendant withheld physical care by placing hand over the victim's mouth during care and failed to remove it.
- The victim has dementia; Rivera, another CNA, testified to observing the choking gesture and its duration.
- Defendant threatened Rivera via voicemail and text after the incident; police involvement followed.
- The court reversed all convictions and remanded for further proceedings on the strangulation charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does placing a hand over the mouth constitute withholding care? | State: withholding care violated ORS 163.205(1)(a). | Defendant: act was affirmative conduct not within withholding care; Baker-Krofft interpreted narrowly. | Not within ORS 163.205(1)(a); acquittal error. |
| Was there sufficient intent to tamper with a witness? | State: threats show intent Rivera would not testify. | Bailey requires explicit intent to influence testimony in an official proceeding. | Insufficient evidence of intent; acquittal error. |
| Were prior bad acts properly admitted under OEC 404(3)? | State: prior abuse shows defendant's plan/intent and propensity relevant to charges. | Evidence is improper propensity evidence; not sufficiently similar to charged acts. | Error in admitting prior acts; not harmless as to strangulation and other convictions. |
Key Cases Cited
- State v. Bailey, 346 Or 551 (2009) (witness tampering intent requires inference of future official proceeding testimony)
- State v. Baker-Krofft, 348 Or 655 (2010) (ORS 163.205(1)(a) applies to withholding care, not affirmative manipulation)
- State v. Johns, 301 Or 535 (1986) (prior acts admissible to prove noncharacter issues under 404(3))
- State v. Leistiko, 352 Or 172 (2012) (limits on prior bad acts to prove plan or intent under 404(3))
- State v. Moen, 309 Or 45 (1990) (recent threat admissible to show consistency with intent)
- State v. Johnson, 340 Or 319 (2006) (essential inquiry under 404(3 is noncharacter relevance to contested issue)