87 Or. App. 664 743 P.2d 1123

Argued and submitted September 11,

reversed and remanded for new trial October 14, 1987

STATE OF OREGON, Respondent, v. JOYCE KAY BAILEY, Appellant.

(B68-768; CA A42865)

743 P2d 1123

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and John A. Reuling, Jr., Assistant Attorney General, Salem.

Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.

WARDEN, P. J.

*666WARDEN, P. J.

Defendant was convicted in a jury trial of theft in the second degree, ORS 164.045(1),1 for eating and not paying for an 87 cent package of cashews from the stock in her employer’s grocery store. She appeals, and we reverse.

Defendant first contends that the trial court erred in excluding evidence that it was the employer’s policy or practice to allow employes to eat food from the store and pay for it later.2 We agree. At trial, defendant testified that she had intended to pay for the package of cashews but forgot to do so when “she got busy talking” to the cashier. She thus asserted the defense that she lacked the requisite “intent to deprive another of property * * ORS 164.015. The evidence con*667cerning the store’s policy or practice is relevant in considering whether defendant had the requisite intent. If the factfinder were to find that defendant’s conduct did not deviate from the employer’s policy or practice, it might infer, as she contends, that she merely forgot to pay for the cashews, and that might affect its verdict. Excluding that evidence was error, and, because the error was not harmless, see State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987), we reverse.

We address defendant’s other assignment of error because the issue may arise on remand. She contends that the trial court erred in sustaining the state’s objection to a question asked by defense counsel of a co-worker of defendant concerning defendant’s reputation for honesty.

OEC 404(2) (a) provides:

“Evidence of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
“(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”

Under that rule, defendant is entitled to adduce evidence concerning a character trait of hers only if the trait is pertinent to the offense charged. That same evidence would not be admissible under OEC 404(2) (a) if it went only to her credibility as a witness or the veracity of her testimony at trial. It follows that, under that rule, defendant can introduce evidence of her *668character trait for honesty only if it relates to her propensity to commit theft.3

Reversed and remanded for a new trial.

State v. Bailey
87 Or. App. 664 743 P.2d 1123

Case Details

Name
State v. Bailey
Decision Date
Oct 14, 1987
Citations

87 Or. App. 664

743 P.2d 1123

Jurisdiction
Oregon

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