- Associated Press - Wednesday, April 2, 2014

PORTLAND, Ore. (AP) - Twice, prosecutors said, David Ray Arnold stole a car, rammed it into a police cruiser and fled on foot. The first time, in 2007, he hit a telephone pole. On a second excursion in 2011, he drove onto a river walkway.

Umatilla County Circuit Court Judge Christopher R. Brauer had said the crimes were similar enough that they could serve as Arnold’s trademark.

“They bear the mark of an individual,” Brauer said. “Essentially, the mark of Zorro.”

But an Oregon Court of Appeals panel ruled Wednesday that introducing the 2007 incident prejudiced the jury in Arnold’s 2011 trial. The court reversed Arnold’s conviction on a host of charges, including possession of methamphetamine and reckless driving, and sent the trial back down to Umatilla County.

Prosecutors can’t use prior bad acts to indict a suspect’s character, but they can use it to show that a person has a pattern of behavior. To do that, they must show that the crimes are similar and that the methodology is distinctive.

The court has found, for instance, that a person who sent letters casting suspicion on other people before and after committing crimes had a distinctive methodology, but a person burying homicide victims in shallow graves did not because it isn’t as distinctive.

The standard is even higher when, as in the 31-year-old Arnold’s case, the court is relying on just one prior incident.

Prosecutors argued that Arnold’s modus operandi was, indeed, distinctive. In January 2007, Pendleton police officer Erik Palmer heard Arnold was driving a stolen Oldsmobile. When Palmer and another deputy tried to pull him over, Arnold rammed their cars, disabling one, and then crashed his own vehicle. He fled on foot, and Palmer found him hiding in a private backyard.

In August 2011, Palmer and another officer were chasing a stolen SUV and blocked it into a dead-end street. The driver threw the car into reverse, struck Palmer’s car, crashed his own vehicle and fled on foot. Palmer then found the SUV on a baseball diamond and saw Arnold crossing the street nearby.

Arnold denied being the driver of the SUV, even though a search of the car later turned up a backpack containing meth and letters addressed to him.

The question before the appeals court, then, was whether the crimes were similar enough to allow the 2007 incident into evidence. The appeals court decided they weren’t.

“The facts reasonably suggest that, in both situations, someone stole a car, was seen by the police, and then tried to evade the police,” the court ruled. “That scenario is unremarkable.”

The court said there was “substantial and convincing evidence” that could have led to Arnold’s conviction, the introduction of the 2007 evidence affected the verdict.

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