State v. Nguyen

“Where [a] prior act and the charged conduct involve similar kinds of bad conduct the similarities between the physical elements must outweigh the differences.” State v. Davis, 279 Or App 223, 234, 381 P3d 888 (2016).

Defendant appealed his conviction for several counts of robbery and theft after stealing several clothing items from retail stores. Defendant assigned error to the trial court’s ruling which admitted into evidence the fact that Defendant had several pieces of clothing and a receipt in his trunk as well as a statement from a police officer that Defendant may have been engaged in “return fraud.” On appeal, Defendant argued that this evidence should not have been admitted because it was irrelevant. In response, the State conceded that the trial court erred, but argued the error was harmless. “Where [a] prior act and the charged conduct involve similar kinds of bad conduct the similarities between the physical elements must outweigh the differences.” State v. Davis, 279 Or App 223, 234, 381 P3d 888 (2016). The Court of Appeals held that the differences between return fraud and robbery and theft outweighed the similarities. Reversed.