State v. Hess

¶1Defendant was charged by indictment with three counts of public indecency, ORS 163.465. Each count alleged all of the elements of public indecency, ordinarily a misdemeanor. Each count also alleged an additional element that enhanced public indecency to a felony. That element was defendant’s prior convictions for public indecency. ORS 163.465(2)(b).1 Defendant offered to stipulate to his prior convictions with the understanding that the trial court would exclude all evidence of them. The state filed a motion in limine requesting that defendant’s proposed stipulation be read into the record in the presence of the jury. The trial court entered an order denying the state’s request and accepting defendant’s stipulation. It also ruled that all evidence of the prior convictions would be excluded. The state appeals the trial court’s denial of its motion in limine. ORS 138.060(l)(c). We reverse.

¶2This case presents the same issue presented in State v. Hambrick, 189 Or App 310, 75 P3d 462 (2003), where, relying on State v. Garrett, 187 Or App 201, 204-05, 66 P3d 554 (2003), we held that the trial court erred in accepting the defendant’s stipulation to the “prior conviction” element of a crime and in then excluding all evidence of that prior conviction. For the reasons set out in Hambrickand Garrett, we reverse and remand.

¶3Reversed and remanded.

¶5dissenting.

¶6This case presents the same issue as State v. Hambrick, 189 Or App 310, 75 P3d 462 (2003), and I dissent for the reasons set out in my dissent to that case.