State v. Schill

                               604

           Submitted April 24, affirmed November 18, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                CHEROKEE LEE SCHILL,
                   Defendant-Appellant.
              Washington County Circuit Court
                   18CR15402; A168846
                            

  Eric Butterfield, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2020)                             605

        PER CURIAM
         Defendant appeals her judgment of conviction for
harassment, raising three assignments of error. In her third
assignment of error, she argues that the trial court plainly
erred by imposing a special probation condition. We reject
that assignment of error without discussion. In her first
and second assignments of error, she assigns error to the
trial court “allowing the state to elicit” certain evidence. We
affirm.
         Defendant was charged with harassment for spitting on a motorist after an incident in which she was riding
her bicycle and the victim, driving a large truck, passed her.
The state offered certain evidence about defendant’s past
statements and conduct. Defendant objected on relevance
grounds. See OEC 401. Defendant did not object on the basis
that the evidence was impermissible character evidence.
See OEC 403; OEC 404(3). On appeal, she assigns error to
the trial court “allowing the state to elicit” the evidence and
argues that the only way the evidence could “become relevant” would depend on impermissible character inferences.
         Defendant’s argument on appeal is not an argument that she made below. Relevance under OEC 401 and
admissibility under OEC 404(3) and OEC 403 can be separate questions. See State v. Williams, 

, 

 (2015) (“Evidence that meets that standard of relevance
nevertheless may be inadmissible for any number of reasons
under other provisions of the evidence code. Under OEC
404(3), ‘other acts’ evidence that is offered for the purpose
of proving a defendant’s character is inadmissible because
it is unfairly prejudicial, not because it is irrelevant.”).
Defendant’s argument on appeal is unpreserved. We therefore affirm.
        Affirmed.