State v. Sung Suk Kim

RIGGS, J. Defendant is charged with the intentional murder of his wife, Hak Shil Kim. ORS 163.115. The trial court granted defendant’s pretrial motion to exclude evidence that he had murdered Ha Kil Kim1 three months before the death of Hak Shil Kim. The state appeals, ORS 138.060(3), and we reverse and remand. Defendant allegedly murdered Hak Shil on January 30, 1989, in Multnomah County.2 Her strangled body was found the next day in her car in an undeveloped area. Three months before her death, on October 26, 1988, Ha Kil was killed while on an elk hunting trip in Union County with defendant and another man. His death was caused by one shot from a hunting rifle fired into his back at close range. On November 29, 1989, defendant was arrested and charged with the murder of Ha Kil. On March 22, 1990, he was indicted for the murder of Hak Shil. The state offered evidence that defendant and his wife had been friends with Ha Kil and his wife Ok Chan. Defendant had shown a romantic interest in Ok Chan before the death of Ha Kil. Both couples were members of the Korean Baptist Church, which strongly disapproves of divorce. After the deaths of Ha Kil and Hak Shil, defendant began courting Ok Chan openly.. Just before his wife’s death, defendant took out a $300,000 life insurance policy on her life, naming himself as the beneficiary. The state contended that the evidence of defendant’s attentions to Ok Chan and his murder of her husband demonstrate that the two killings were part of a common scheme or plan and established defendant’s motive for killing Hak Shil. Defendant argued that the state should be required to prove by clear and convincing evidence that defendant had killed Ha Kil. The trial court agreed and held that the state had not met its burden of proof. Therefore, it ruled that the evidence must be excluded. [542] The state assigns error to the trial court’s ruling. It argues that the court should have applied the preponderance of the evidence standard to the preliminary question of whether defendant had killed Ha Kil. The state is correct. State v. Kim, supra n 1. Reversed and remanded. Footnotes [1] Several persons involved in this case have the last name' of Kim. Not all of them are related. See State v. Kim, 111 Or App 1, 824 P2d 1161 (1992). [2] For the purposes of the pretrial motion, defendant does not dispute the evidence.