- Court: Oregon Court of Appeals
- Area(s) of Law: Evidence
- Date Filed: 07-22-2015
- Case #: A154684
- Judge(s)/Court Below: Devore, J For the Court; Ortega, P.J.; Garrett, J
- Full Text Opinion
On appeal, Defendant first assigned error to the admission of the six convictions. Second, Defendant challenged the trial court’s failure to offer an instruction that the jury could not consider Defendant’s prior convictions as evidence of Defendant’s mental state until first finding he had committed the actus reus of forgery. Lastly, Defendant questioned the length of his sentence and imposition of attorney fees. For the first assignment of error Defendant argued that the trial court did properly asses the probative value of the evidence. The Court concluded that the trial court correctly applied OEC 403, and the evidence was not unfairly prejudicial because it was used for non-propensity reasons, and was limited by an instruction. Defendants second issue is the trial court committed a plain error by not instructing the jury that it had to first find he committed the actus reus before determining the mental state. The Court agreed with the State's argument that no plain error existed because one requirement for the limiting instruction sought by the Defendant was the actus reus had to be an issue, and in this case Defendant did not raise that he did not have the actus reus of the crime. Defendant's final assignment of error is related to sentencing, and he argued that the trial court committed a plain error in imposing 60 months and 12 month post-prison supervision, and therefore, exceeded the max allowed by law. The State conceded this point, and the court agreed that it was unlawful. Remanded for resentencing otherwise affirmed.