State v. Stockton

116

Argued and submitted December 6, 2019; convictions on Counts 1, 4, 5, 7, 9,

10, 11, and 12 reversed and remanded, remanded for resentencing, otherwise

affirmed March 17, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERIC LEE STOCKTON,

aka Eric Stockton,

Defendant-Appellant.

Jackson County Circuit Court

17CR22703; A165499

483 P3d 657

Defendant appeals his convictions of multiple criminal offenses, stemming

from a series of domestic violence incidents involving a former intimate partner.

Among other things, defendant argues that the trial court erred by admitting

evidence of other charged and uncharged misconduct committed against both

the same intimate partner and other former intimate partners under “hos-

tile motive” and “doctrine of chances” theories of relevance and by accepting

nonunanimous verdicts from the jury. Held: The trial court erred in admitting

the other misconduct evidence. The evidence did not qualify for admission under

the doctrine of chances because it did not arise from a series of uncommon and

similar, claimed accidental events. See State v. Skillicorn, 367 Or 464, 484, 479

P3d 254 (2021). Nor did the evidence show a common motive (apart from gener-

alized hostility) among the other misconduct and the acts charged in this case

that persisted over a period of time, animating defendant to commit the charged

offenses. Instead, the only inferences that the other misconduct evidence permit-

ted were impermissibly propensity-based. The trial court also erred in admitting

the challenged evidence under OEC 404(4) in light of the state’s narrow reliance

on the doctrine of chances and hostile motive as theories of relevance under that

provision. The erroneous admission of the other misconduct evidence was not

harmless with respect to two convictions based on unanimous verdicts. Finally,

the convictions based on nonunanimous verdicts were erroneous and must be

reversed and remanded.

Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12 reversed and remanded;

remanded for resentencing; otherwise affirmed.

Timothy Barnack, Judge.

Larry R. Roloff argued the cause and filed the brief for

appellant.

Peenesh Shah, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Cite as 310 Or App 116 (2021) 117

Before Tookey, Presiding Judge, and Aoyagi, Judge, and

Brewer, Senior Judge.*

BREWER, S. J.

Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12 reversed

and remanded; remanded for resentencing; otherwise

affirmed.

______________

* Brewer, S. J. vice Armstrong, P. J.

118 State v. Stockton

BREWER, S. J.

Defendant was convicted by a jury of multiple crim-

inal offenses, including three counts of felony fourth-degree

assault involving domestic violence. ORS 163.160(3).1 The

victim of the charged assaults was defendant’s former inti-

mate partner, T. On appeal, defendant raises six assign-

ments of error in his opening brief and additional assign-

ments of error concerning nonunanimous jury instructions

and verdicts in a supplemental brief. We write primarily

to address defendant’s third assignment of error, which

challenges the trial court’s admission of evidence of other

charged and uncharged misconduct by defendant involving

T and two of defendant’s other former intimate partners. As

elaborated below, we conclude that the trial court erred in

admitting the other misconduct evidence and that the error

was not harmless with respect to defendant’s convictions

for tampering with a witness and second-degree criminal

mischief. We reject the remaining assignments of error in

defendant’s opening brief without discussion.

In supplemental assignments of error, defendant

argues that the trial court erroneously instructed the jury

that it need not be unanimous, and that was structural error

requiring reversal of all of his convictions, including the

three convictions that were based on unanimous verdicts.

See Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206

L Ed 2d 583 (2020) (holding that nonunanimous jury ver-

dicts for serious offenses were impermissible under the Sixth

Amendment). The state concedes that defendant is entitled

to reversal and remand on the counts involving nonunani-

mous verdicts. We agree, accept the concession, and exercise

our discretion to correct the plain error for the reasons set

out in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020). As

for defendant’s structural error challenge to the three con-

victions based on unanimous verdicts, the Supreme Court

1

Defendant’s convictions included, in addition to the three counts of fourth-

degree assault (Counts 1, 7, and 11), counts concerning possession of metham-

phetamine (Count 3), first-degree burglary (Count 4), coercion (Counts 5 and 9),

tampering with a witness (Count 10), and second-degree criminal mischief

(Count 12). The jury’s verdict was unanimous with respect to Counts 3, 10, and

12, but not as to the other convictions. Defendant was acquitted on the remaining

counts.

Cite as 310 Or App 116 (2021) 119

rejected a similar challenge in State v. Flores Ramos, 367

Or 292, 478 P3d 515 (2020). We reject it here, too, without

further discussion.

Ultimately, we reverse and remand on Counts 1, 4,

5, 7, 9, 10, 11, and 12, and otherwise affirm.2

I. BACKGROUND

The indictment contained charges relating to

numerous incidents, but we limit our discussion to the evi-

dence relating to the events that gave rise to the fourth-

degree assault (Counts 1, 7, and 11), tampering with a

witness (Count 10), and second-degree criminal mischief

(Count 12) convictions. Defendant and T were intimate part-

ners for about four years. Their relationship was punctuated

by several reports by T that defendant had committed acts of

domestic violence against her. We summarize the evidence

pertaining to the three incidents that resulted in the above-

described convictions in this case as follows:

A. Hairspray Can Incident (Count 1)

On December 17, 2014, T was injured when defen-

dant threw a can of hairspray through the open passen-

ger window of her moving car, striking her on the chin.

Defendant did not dispute that he threw the hair spray can

at the car, but his position at trial was that hitting her was

an accident.3 T testified on cross examination that defen-

dant was “surprised” to have hit her, and defendant’s mother

2

For two independent reasons, even though they were not based on unani-

mous verdicts, we decline simply to reverse and remand the fourth-degree assault

convictions based on the United States Supreme Court’s decision in Ramos. First,

the same or similar issues regarding other misconduct evidence under OEC

404(3) are likely to arise again with respect to those counts on remand, so in the

interest of judicial efficiency we address them now. See, e.g., State v. Deloretto, 221

Or App 309, 189 P3d 1243 (2008), rev den, 346 Or 66 (2009) (addressing assign-

ments of error that are likely to arise on remand despite reversing on different

ground); Westwood Construction Co. v. Hallmark Inns, 182 Or App 624, 50 P3d

238, rev den, 335 Or 42 (2002) (addressing ruling concerning availability of cer-

tain type of attorney fees under ORS 87.060 as likely to arise on remand). Second,

as explained below, we conclude that the erroneous admission of the other mis-

conduct evidence was not harmless as to defendant’s convictions on two counts on

which the jury’s verdict was unanimous (Counts 10 and 12), and which would not

otherwise be subject to reversal and remand under Ramos.

3

Defendant did not testify at trial, but his counsel took that position in his

defense.

120 State v. Stockton

testified that the can struck T by mistake, and they were

both laughing about it.

B. Motorhome Incident (Count 7)

On January 29, 2016, T called defendant and asked

him to come to a motorhome where she was staying. After

initially declining, defendant agreed and brought dinner.

T had been using methamphetamine. The owner of the

motorhome, WE, became concerned about T and checked

on her. Defendant held a knife to T’s back and forced her

to assure WE that she was alone and fine. However, WE

was certain that someone else was there, and she called

the police. When deputies arrived, defendant prevented T

from opening the door. Eventually defendant released her.

Deputy Scow noticed a lump on T’s head immediately upon

seeing her. T reported that defendant caused the lump by

throwing her phone at her head. T stated that defendant bit

her and “backhanded” her and that he held his hand over

her mouth to keep her from crying out whenever he believed

someone was approaching the motorhome. While testifying

about the incident, T struggled to recall certain details, but

she appeared to clearly recall the abuse itself.

C. G’s Residence Incident (Counts 10, 11, and 12)

On February 20, 2016, T and defendant were staying

at the home of G. When T tried to leave, defendant became

angry and trapped her inside, causing an injury to her leg. T

reported to police that defendant took her phone, repeatedly

asked her what she told police regarding an earlier domestic

violence incident, and when T refused to tell him what she

told police, defendant threw her to the floor and kicked her

while telling her to “fix it or you’re not going to have any

family either.” When T managed to escape and attempted to

leave in her friend’s car, defendant jumped on the hood and

broke one of the windows. After riding on the hood down the

driveway, defendant got off and began kicking the car.

T made two 9-1-1 calls that day, the first as she

was leaving G’s residence. The second call was made from a

friend’s house. During the second call, T refused to tell the

dispatcher where she was because she was at a drug house

and did not want to get her friends arrested.

Cite as 310 Or App 116 (2021) 121

In charging the assault offenses, the state alleged,

in addition to the other elements of fourth-degree assault,

that defendant previously had been convicted at least three

times under ORS 163.160 or equivalent laws of another

jurisdiction for assault. The state further alleged that the

currently-charged assault offenses constituted domestic vio-

lence in that “defendant and the alleged victim are persons

who have been involved in a sexually intimate relationship.”

Defendant’s position at trial was that he did not com-

mit the charged acts, except that, with respect to the hair-

spray can incident, defendant’s position was that, although

he threw the can, it struck T by mistake. Anticipating those

theories of defense, before trial, the state sought a ruling

that certain evidence of defendant’s other charged and

uncharged misconduct would be admissible at trial under

various theories: to invite nonpropensity inferences of hos-

tile motive and absence of mistake, as well as to invite pro-

pensity inferences under OEC 404(4). In total, the state

proffered, and the trial court admitted, evidence of seven

separate incidents of other misconduct by defendant:

(1) An incident in which defendant had been con-

victed in 2003 for kidnapping and assaulting a different for-

mer intimate partner, S, over a decade before the conduct

charged in this case. Although the state had anticipated

calling her as a witness, S did not testify, and the trial court

admitted a copy of the judgment convicting defendant for

those offenses as evidence of other misconduct.

(2) An incident on January 2, 2014, in which defen-

dant had been arrested but ultimately not prosecuted for

assaulting, strangling, and harassing another former inti-

mate partner, WI. The court admitted a 9-1-1 recording of

WI’s statement that defendant had beaten her up “really

bad” and choked her in that incident and that she was going

to hide in the bathroom. WI was crying and concerned that

defendant was coming back. The dispatcher told her to stay

in the bathroom.

(3) An incident on January 16, 2014, in which

defendant had been arrested but ultimately not prosecuted

for assaulting and harassing WI. The trial court admitted a

122 State v. Stockton

police officer’s testimony that, in response to a 9-1-1 call, he

had observed a bump on WI’s head following that incident.

(4) An incident that occurred on August 12, 2015,

in which defendant was arrested but ultimately not prose-

cuted for assaulting and harassing T. The trial court admit-

ted photographs of a “scratch with a bruise” on her leg that T

suffered in that incident. T testified that defendant “pushed

[her] down,” “kicked [her] down to the ground” and “wasn’t

going to let [her] go” until someone else intervened. T also

described the injury to her leg.

(5) An incident on September 3, 2015, in which

T called 9-1-1 about defendant’s conduct of forcing a phone

into her mouth, hitting her, and pouring soda on her. In

addition to the 9-1-1 recording, T testified about that inci-

dent, recounting that defendant “push[ed]” her “down” and

“poured grape soda” down her “throat so [she] couldn’t

scream.”

(6) An incident that occurred on September 28,

2015, for which defendant previously had been convicted of

harassment against T. The trial court admitted as other mis-

conduct evidence the record of defendant’s conviction of that

offense, as well as testimony of T that defendant “push[ed]”

her “up against the fence at his residence,” and the testi-

mony of a police officer who observed defendant “holding [T]

by the shoulders and * * * shoving her into the fence.”

(7) Two uncharged incidents of assault against T

that occurred in 2015, described in medical records that the

trial court admitted as evidence of other misconduct. One of

the records described T as having been involved in domes-

tic abuse perpetrated by someone who had since been jailed

and who had thrown her against a couch and hit her in the

ribs.

In admitting the evidence of defendant’s other mis-

conduct, the trial court generally did not distinguish among

the state’s theories of admissibility, but repeated a consis-

tent set of factors on which it relied, namely, that the prof-

fered other misconduct evidence “also requires a culpable

mental state, same victim [as to misconduct involving T],

same or similar acts, and in balancing the evidence, it is

Cite as 310 Or App 116 (2021) 123

relevant and the probative value outweighs the risk of unfair

prejudice.” 4

On appeal, defendant contends that the trial court

erred in concluding that evidence of defendant’s other mis-

conduct was relevant under the proffered theories and that

the court failed to properly conduct the required balancing

of probative value and prejudicial effect under OEC 403.5

II. STANDARD OF REVIEW

We review a trial court’s determination of relevance

under OEC 401 for errors of law. State v. Titus, 328 Or 475,

481, 982 P2d 1133 (1999). We also review a trial court’s

determination that other misconduct evidence is relevant

for nonpropensity or propensity purposes under OEC 404(3)

and OEC 404(4) for legal error. State v. Baughman, 361 Or

386, 406, 393 P3d 1132 (2017); State v. Cave, 298 Or App 30,

38, 445 P3d 364 (2019). If the admission of other misconduct

evidence was erroneous, in determining whether the admis-

sion of the evidence was harmless, we “review all pertinent

portions of the record, not just those portions most favorable

to the state.” State v. Maiden, 222 Or App 9, 11, 191 P3d 803

(2008), rev den, 345 Or 618 (2009).

III. ANALYSIS

The Supreme Court set out some of the governing

principles for our analysis in State v. Tena, 362 Or 514, 518-21,

412 P3d 175 (2018). In a nutshell, relevant evidence is

admissible under OEC 402, “except as otherwise provided

elsewhere in the Oregon Evidence Code, the state or federal

constitutions, or other applicable laws.” Id. at 519. OEC 403

is one such limitation, providing that, “[a]lthough relevant,

evidence may be excluded if its probative value is substan-

tially outweighed by the danger of unfair prejudice, confu-

sion of the issues, or misleading the jury, or by considerations

4

The trial court’s narrative appears to have followed certain criteria that

the Supreme Court adopted in State v. Johns, 301 Or 535, 725 P2d 312 (1986),

pertaining to the admission of other misconduct evidence under the doctrine of

chances. As discussed below, as relevant here, the court recently overruled Johns,

in part, in State v. Skillicorn, 367 Or 464, 479 P3d 254 (2021).

5

Because, as explained below, we agree with defendant that the challenged

evidence was not relevant under any of the theories proffered by the state, we do

not reach defendant’s arguments under OEC 403.

124 State v. Stockton

of undue delay or needless presentation of cumulative

evidence.” Another limitation, OEC 404(3), provides that

“[e]vidence of other crimes, wrongs or acts is not admissible

to prove the character of a person in order to show that the

person acted in conformity therewith.” However, that rule

further provides that such evidence is admissible as “proof

of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” OEC 404(3).

Complicating things, OEC 404(4) provides that, in crimi-

nal actions, “evidence of other crimes, wrongs or acts by the

defendant is admissible if relevant,” except “as otherwise

provided by specific statutory provisions to the contrary and

by the state or federal constitutions.” Tena, 362 Or at 519.

“OEC 404(4) has the effect of superseding the part

of OEC 404(3) that declares inadmissible other [misconduct]

evidence offered to prove character; under OEC 404(4), rel-

evant other [misconduct evidence]—even to prove the char-

acter of a criminal defendant—is admissible,” unless pro-

scribed by other relevant law. Id. at 520; see also State v.

Williams, 357 Or 1, 15, 346 P3d 455 (2015). Based on the

interplay among those provisions, in Baughman, the court

stated that the admissibility of other misconduct evidence is

determined under the following test:

“When a party objects to the admission of other acts evi-

dence, a trial court first should determine whether the

proffered evidence is relevant for one or more nonpropen-

sity purposes, under OEC 404(3). If it is, then the court

should determine, at step two, whether the probative value

of that evidence is substantially outweighed by the dan-

ger of unfair prejudice under OEC 403. If the trial court

determines that the evidence is relevant for a nonpropen-

sity purpose under OEC 404(3) and admissible under OEC

403, then it need not determine whether the evidence also

is admissible under OEC 404(4) and OEC 403. However, if

a trial court determines that proffered evidence is not rel-

evant for a nonpropensity purpose, then it must determine

whether that evidence nevertheless is otherwise relevant

under OEC 404(4) and, at step two, whether the probative

value of the evidence is substantially outweighed by the

danger of unfair prejudice, under OEC 403.”

361 Or at 404-05.

Cite as 310 Or App 116 (2021) 125

With those general principles in mind, we turn

to the other misconduct evidence at issue in this case.

Again, defendant contends that none of the proffered evi-

dence involving the prior incidents was relevant for any of

the asserted purposes. We consider defendant’s arguments

under OEC 404(3) separately as to incidents involving other

misconduct committed against T as distinct from evidence

of misconduct against defendant’s other former intimate

partners. We conclude our analysis with a combined discus-

sion of OEC 404(4) and the issue of harmlessness.

A. Other Incidents of Misconduct Involving Former Intimate

Partners

1. Hostile motive

In Tena, the Supreme Court considered the admis-

sibility of purported motive evidence in a trial involving

domestic violence charges. The defendant in that case had a

history of abusing intimate partners. 362 Or at 516-17. Over

the defendant’s objection, the trial court admitted evidence

that the defendant previously had assaulted two other inti-

mate partners as bearing on his “hostile motive” to assault

his current intimate partner. Id. at 517. On review, the

Supreme Court reversed. It rejected the state’s “assum[ption]

that, because defendant assaulted two of his prior inti-

mate partners, those assaults were motivated by the fact

that they were his intimate partners.” Id. at 524. Although

“those assaults, in theory, could have been motivated by

the fact that the victims were his intimate partners,” the

“evidence indicated that the prior assaults involved other

motives, such as a disagreement about child-care issues, the

victim’s desire to work, and jealousy.” Id. The other acts also

were “relatively isolated and not close in time.” Id.

The court further observed that the only connec-

tion among the victims in that case was their relationship

with the defendant, and it held that there must be some-

thing more. Id. at 523-25. The court distinguished the pos-

ited animus in State v. Klamert, 253 Or 485, 455 P2d 607

(1969), where the defendant targeted a police officer because

he was a police officer. Tena, 362 Or at 523-24. In contrast,

the court in Tena concluded that, because the record there

did not show a common motive among the charged acts and

126 State v. Stockton

the acts against former partners, the trial court erred in

concluding that the other misconduct evidence was relevant

to prove the defendant’s motive for the charged offenses. Id.

The record here is similarly deficient with respect

to the relevance of the challenged evidence as to defendant’s

motive in the charged incidents. ORS 163.160 provides, in

part:

“(1) A person commits the crime of assault in the

fourth degree if the person:

“(a) Intentionally, knowingly or recklessly causes

physical injury to another;

“* * * * *

“(2) Assault in the fourth degree is a Class A

misdemeanor.

“(3) Notwithstanding subsection (2) of this section,

assault in the fourth degree under subsection (1)(a) * * * of

this section is a Class C felony if the person commits the

crime of assault in the fourth degree and:

“* * * * *

“(c) The person has at least three previous convictions

for violating this section or ORS 163.165, 163.175, 163.185,

163.187 or 163.190 or for committing an equivalent crime

in another jurisdiction, in any combination[.]”6

Among other elements, to prove the assault charges

constituting domestic violence against T as alleged in the

indictment, the state was required to prove that defendant

caused harm to T while they were involved in a sexually

intimate relationship. To be relevant to his motive, the

other misconduct evidence had to at least relate to defen-

dant’s mens rea, alleged as reckless, in causing the harm.

However, the state did not proffer any motive for defendant’s

misconduct toward his other former intimate partners.

Nor did the state offer any explanation as to how the acts

involving those intimate partners had any substantial link

6

Defendant’s charged assaultive conduct occurred in 2014 and 2016. The

fourth-degree assault statute (ORS 163.160) was amended in 2015 and again in

2017. For the purposes of our analysis, the differences among the various ver-

sions of the statute are not material. Accordingly, for convenience we refer to the

present version of the statute.

Cite as 310 Or App 116 (2021) 127

to the current charges. Like in Tena, the only link that the

state established was that WI and S were former intimate

partners of defendant and that he had engaged in violence

toward them. That foundation was insufficient. Accordingly,

the trial court erred in admitting the evidence of miscon-

duct involving defendant’s other former intimate partners

to show his motive with respect to the charged offenses

against T.

2. Doctrine of chances; absence of mistake

The trial court also admitted the misconduct evi-

dence involving defendant’s other former intimate partners

as relevant to show defendant’s intent under the doctrine of

chances. Defendant asserts that that ruling, too, was erro-

neous.7 Although in its brief on appeal the state does not

defend the admission of the other intimate partner evidence

on that ground, we nevertheless briefly consider it. Without

undue elaboration, we conclude that the challenged evidence

also was not relevant for that proffered purpose.

In its motion in limine, the state theorized that the

other misconduct evidence was admissible under the doc-

trine of chances to prove defendant’s intent with respect to

the hairspray can count, because defendant acknowledged

throwing the can at T, but claimed that it struck her by mis-

take. The problem with that theory is that it is based on a

misconception of the “doctrine of chances.” As the Supreme

Court recently held, overruling in part State v. Johns, 301

Or 535, 725 P2d 312 (1986), “evidence of uncharged miscon-

duct [cannot] be admitted under the doctrine of chances for

the purpose of arguing that, because the defendant engaged

in deliberate conduct before, it is likely that he engaged in it

again during the charged incident.” State v. Skillicorn, 367

Or 464, 493, 479 P3d 254 (2021). The reason is that using

evidence of prior deliberate misconduct to show an absence

7

The parties square off over whether defendant’s intent was relevant in this

case, where the indictment alleged that he acted recklessly in committing the

assaults. However, the state is correct that it was entitled to prove a reckless

mental state by showing that defendant acted intentionally. See ORS 161.115(3)

(“When recklessness suffices to establish a culpable mental state, it is also estab-

lished if a person acts intentionally or knowingly.”). Thus, although the state did

not need to prove intent, it nevertheless could have attempted to prove that defen-

dant acted intentionally to satisfy the mens rea element of the charged offenses.

128 State v. Stockton

of mistake in a currently charged offense would violate OEC

404(3)’s prohibition on the use of other misconduct evidence

to show a defendant’s propensity to engage in intentional

criminal conduct. Id. at 492.

In Skillicorn, the Supreme Court confined the appli-

cation of the doctrine of chances to situations where the

“theory of relevance [is] based on the objective improbability

of the recurrence of uncommon events.” Id. at 484. Because

of that rationale, “there are two foundational requirements

for the doctrine’s use: similarity and unusual frequency.”

Id. at 487. As far as similarity is concerned, the fact that

other misconduct—as a general category—has occurred is

insufficient. Where, as here, a claim is made that conduct

was accidental, to be relevant contradictory evidence under

the doctrine of chances, the proffered conduct must be part

of a series of similar events claimed to have the same uncom-

mon accidental cause as the charged acts, so as to support

an inference that not all of the events actually had that

cause. Id. at 484.8 With respect to the frequency require-

ment, “the number of events in the series must exceed the

number of events that could reasonably be expected to share

the uncommon cause,” and the number “has to be sufficient

to establish a fortuitous coincidence that is too abnormal or

bizarre to be believed.” Id. at 487 (quotation marks omitted).

Here, the state’s theory of relevance was, in effect,

that, because defendant had intentionally assaulted inti-

mate partners in the past, it could be inferred that he acted

with at least a reckless mental state in assaulting T in the

charged incidents. In support of that theory, the state sim-

ply proffered a certified copy of a 2003 conviction involving

one of the former intimate partners, S, as the state closed its

case-in-chief, and the state adduced no evidence concerning

what happened to the other former partner, WI, beyond the

fact that she had incurred a head injury. The only evidence

8

The court gave the following example:

“So, for example, if a party asserts that all the events in a series of similar

events were accidents, an opponent might rely on the doctrine of chances to

argue that the number of events exceeds the number of accidents that the

party was likely to suffer, and the factfinder should therefore infer that not

all the events were accidents.”

Skillicorn, 367 Or at 484.

Cite as 310 Or App 116 (2021) 129

of similarity among the various incidents was that S and

WI, like T, were intimate partners of defendant and that

he had been violent with them. The evidence did not show

that defendant’s acts involving S and WI were claimed to be

accidental, much less that they were part of a series of sim-

ilar, uncommon events so as to establish a “fortuitous coin-

cidence” that is too “abnormal” or “bizarre” to be believed.

Id. Accordingly, the challenged evidence was impermissibly

propensity based; it was not relevant under the doctrine of

chances.9

B. Other Incidents of Misconduct Involving T

1. Hostile motive

Although the state proffered multiple theories of

relevance for the admission of evidence of other misconduct

by defendant toward T, its primary argument to the jury

was that the evidence showed that defendant had a hostile

motive toward T. On appeal, defendant reiterates his argu-

ment before the trial court that the evidence was not rele-

vant for that purpose. The state counters that each of the

other incidents of misconduct involving T showed personal

animus, and each allegedly was committed within a few

months of the charged assaults. According to the state, that

foundation was sufficient to permit the jury to infer that

defendant continued to harbor ill will against T when the

charged incidents occurred, thus making it more probable

that he committed the charged acts.

We recently addressed similar arguments in State

v. Morrow, 299 Or App 31, 448 P3d 1176 (2019). In Morrow,

the defendant was convicted of felony fourth-degree assault,

ORS 163.160(3), and harassment, ORS 166.065(3), in con-

nection with an incident involving his intimate partner.

Id. at 33. On appeal, the defendant asserted that the trial

court erred by admitting evidence of prior uncharged acts

9

The court in Skillicorn acknowledged that, even if properly cabined, the

doctrine of chances is the “subject of debate,” and that it has been criticized as

a mask for the admission of propensity evidence. 367 Or at 484 n 5. Carefully

read, we do not understand the court’s opinion to fully endorse the doctrine as

a nonpropensity theory of relevance. Rather, the court appears to have assumed

arguendo that it might be, based on similar assumptions by the parties and the

views of a leading commentator, Professor Edward Imwinkelreid. Id.

130 State v. Stockton

of domestic violence against the same victim. Id. As in this

case, the trial court admitted that evidence under OEC

404(3) for the purpose of showing the defendant’s motive for

the charged acts. Id.

On appeal, the defendant contended that the other

misconduct evidence was not relevant to his motive and,

instead, was improper propensity evidence. We agreed with

the defendant that the evidence should not have been admit-

ted as motive evidence under OEC 404(3) and that the error

was not harmless. Id.

As pertinent here, we stated:

“Given how difficult it sometimes is to distinguish between

motive and character evidence, it can be helpful to keep

in mind some general principles. One is that permissible,

motive-based reasoning usually ‘assume[s] that a motive

might exist because any person might possess one under

those specific circumstances’—that is, ‘[t]he tendency to

have such a motive is simply human’—whereas character-

based reasoning derives ‘from a trait of character specific

to the person involved in the trial’ and is ‘based on inferred

behavioral disposition or propensities.’ * * * ‘When the

asserted connection between the charged offense and the

other-acts evidence would be merely conjectural without

resort to character-based inferences, such evidence is not

admissible as noncharacter motive evidence.’ * * * The spec-

ificity of an alleged motive also may be telling. Although

there are exceptions—the most notable one being hate

crimes—motive inferences tend to be specific to the cir-

cumstances and the individual victim, whereas character

inferences tend to be more generalized. * * * ‘Typically, the

more generalized the motive inference, the more like char-

acter it becomes.’ * * * ‘The motive theory should not apply

* * * when the “motive” is so common that the reasoning

that establishes relevancy verges on ordinary propensity

reasoning or when “motive” or “intent” is just another word

for propensity.’ ”

Id. at 43-44 (internal citations and footnote omitted; brack-

ets in Morrow).

In Morrow, we acknowledged that the other miscon-

duct evidence at issue there involved the same victim and

that the conduct was similar, but we concluded that those

Cite as 310 Or App 116 (2021) 131

factors were insufficient to satisfy the relevance standard

for motive with respect to the offenses charged in that

case. Id. at 45. We said, “motive pertains to why defendant

assaulted [the victim], not to the similarity of the assaults

themselves.” Id. (rejecting, as the Supreme Court had in

Tena, the argument that similarity of assaultive episodes

reflected a common motive linking the assaults). We noted

that the evidence was that

“any number of things, coupled with intoxication, triggered

defendant’s violence. Of the three instances presented to

the jury, for example, there is no evidence as to the impetus

for the Rainbow Motel incident, the Motel 6 incident began

when defendant accused [victim] of sexual infidelity, and

the charged acts began when [victim] questioned defendant

about his recent several-hour absence.”

Id.

The state remonstrated, as it does here, that the

prior acts showed the defendant’s general “hostility” toward

the victim. We rejected that argument:

“The difficulty with the state’s generalized hostility

argument is that it seems to depend on an assumption that

anyone who assaults someone repeatedly must be generally

hostile toward them, rather than rely on the specific record

before the court in this case. Although repeated instances

of hostile interactions between two people may give rise

to a permissible inference of generalized hostility in some

circumstances, it will depend on the record, and domestic

violence situations are especially complicated. Here, defen-

dant and [victim] were living together and had been in

an intimate relationship for over a year at the time of the

charged acts. There was no evidence of significant animos-

ity between them except for the domestic violence incidents.

In our view, the existence of domestic violence in an inti-

mate relationship is not enough, in and of itself, to allow an

inference of ‘generalized hostility’ as a common motive for

all acts of violence over an extended period of time.”

Id. at 46.

In reaching that conclusion, we distinguished a

case on which the state relies here, State v. Hagner, 284 Or

App 711, 395 P3d 58, rev den, 361 Or 800 (2017). In Hagner,

132 State v. Stockton

the defendant claimed to have accidentally shot his wife.

Id. at 715. We affirmed the admission of evidence that the

defendant had slapped his wife seven days before he shot

her and yelled at her four days before he shot her, because

that evidence “tended to show that defendant had a hos-

tile relationship with the victim in the week immediately

preceding the shooting” and “a jury could find that he had

been motivated by the same animosity when he fired the

fatal shot.” Id. at 720. The temporal connection between

the two hostile acts would allow a jury to “find [that] that

same animosity motivated defendant” to commit both acts,

because it would allow the jury to infer that defendant’s

hostility toward the victim “persisted until the time of the

shooting and also motivated that crime.” Id. at 721. The

mere fact that the two acts involved the same victim was

not dispositive. Rather, it was the very short timeframe

involved that allowed the inference of a common motive

that persisted for the entire week leading up to the victim’s

murder.

By contrast, in Morrow we reasoned that

“the other-acts evidence offers no possible explanation

as to why defendant started an altercation with [victim]

on October 13, when she questioned where he had been.

It shows only that defendant has a propensity to drink

alcohol to excess, get upset with [victim], demand that she

leave, and then verbally and physically assault her. That is

character evidence that, on this record, lacks any relevance

to defendant’s motive for allegedly committing the charged

crimes on October 13.”

299 Or App at 49. We further concluded that, even if we

considered a narrower possible motive for the charged

crimes—that the defendant assaulted the victim on

October 13 because he believed that she was trespassing and

was trying to get her out of the room—the other-acts evi-

dence would not be relevant to that motive. Id. Importantly

for present purposes, we stated:

“A similar motive for two acts is not the same as a com-

mon motive. See Leonard, The New Wigmore § 8.3 at 499

(explaining the important distinction between a ‘common’

motive for multiple acts and ‘similar’ motives for multiple

Cite as 310 Or App 116 (2021) 133

acts). To establish a common motive of trying to get [victim]

out of the room, it would have to be reasonable to infer that

defendant had been trying to get [victim] out of the room

for weeks or months and had repeatedly assaulted her to

achieve that singular purpose. That is not a reasonable

inference on this record. Unlike the situation[ ] in [Hagner],

the prior-acts evidence here does not allow an inference of

a common motive, i.e., a single motive that persisted over

a period of time and motivated multiple acts of violence

during that time.”

Id. (emphases in original).

To be relevant to motive, we held, the challenged

evidence had to offer an explanation as to why the “defen-

dant allegedly assaulted, strangled, and harassed [victim]

on October 13.” Id. at 50. It did not do that, we explained,

“beyond suggesting that defendant did so because that is

what he always does when he gets intoxicated, becomes

upset, and [victim] refuses to leave.” Id. In short, the chal-

lenged evidence was not relevant to motive and, instead,

simply invited the jury to think, “once an abuser, always an

abuser.” Id.

Similarly, in the present case, the state’s motive

theory of relevance was one of generalized hostility that

persisted throughout the course of defendant’s relationship

with T. According to the state, when other misconduct is

“directed at the same victim as alleged in the charged con-

duct, [an] intermediate inference is unnecessary—evidence

of a defendant’s hostile acts towards a particular victim

readily and logically support[s] inferring that the defendant

continued to harbor that hostile intent at the time of the

charged conduct.” Consistent with that rationale, the state

has offered no explanation for how any of the prior incidents

involving T established a common motive that persisted

over a period of time and spurred defendant to commit mul-

tiple acts of violence against T during that period. In the

absence of such a foundation, the only inference that the

other misconduct evidence involving T permitted was that

defendant acted consistently with a blemished character in

repeatedly assaulting her. It follows that the challenged evi-

dence was not relevant to prove defendant’s motive for the

conduct charged in this case.

134 State v. Stockton

2. Doctrine of chances; absence of mistake

Our analysis here largely mirrors our consideration

of the other misconduct evidence involving defendant’s other

former intimate partners. With respect to the other miscon-

duct evidence involving T, the state argues:

“Here, the doctrine of chances was available to prove defen-

dant’s intent as to one of the charged acts—throwing a can

of hairspray at the victim, which the state argued as the

basis for count one in this case.”

(Emphasis added.) Although it purported to follow Johns,

the state’s theory is at odds with the holding in Skillicorn

that evidence of prior intentional misconduct cannot be

admitted to prove that a defendant acted intentionally in

committing a currently charged offense. Skillicorn, 367 Or

at 493. There was no evidence that defendant’s other con-

duct involving T was similar to defendant’s conduct in the

hairspray can incident. Nor, of necessity, did the challenged

evidence comprise a series of similar, uncommon events

sufficient to establish a “fortuitous coincidence” that is too

“abnormal” or “bizarre” to be believed. Id. at 487. Therefore,

the other acts evidence involving T was not relevant under

the doctrine of chances.

C. Propensity Evidence Under OEC 404(4)

Once a court determines that evidence of other mis-

conduct is not probative for a nonpropensity purpose under

OEC 404(3), it may consider whether the evidence never-

theless is admissible under OEC 404(4). To be admissible

under OEC 404(4) to prove defendant’s character in order

to show that he acted in conformity therewith, the proffered

other misconduct evidence had to be relevant to an issue in

this case. See Williams, 357 Or at 20 (holding that “OEC

404(4) makes ‘other acts’ evidence admissible if it is relevant

under OEC 401 and admissible under OEC 403”); see also

Baughman, 361 Or at 400 (stating that “OEC 404(4) pre-

serves ‘traditional standards of relevancy’ ” (quoting State v.

Moore/Coen, 347 Or 371, 389, 245 P3d 101 (2010))).

Under Williams, propensity evidence needs only

to be relevant in the broad sense of OEC 401, not relevant

for one of the specific purposes in OEC 404(3), but the state

Cite as 310 Or App 116 (2021) 135

has identified no basis for relevance in this case other than

hostile motive and the doctrine of chances. For the reasons

already discussed, the other misconduct evidence here was

not relevant under those theories. Because the state relies

solely on the theories of motive and the doctrine of chances

in support of its argument that the challenged evidence was

relevant under OEC 404(4), our rejection of those theories

of relevance is a sufficient answer to the state’s reliance on

OEC 404(4).10

D. Harmless Error

In light of the nonunanimous verdicts on the assault

charges (Counts 1, 7, and 11), it is necessary under Ramos to

reverse defendant’s convictions on those counts and remand

them to the trial court. We therefore do not consider the

issue of harmlessness with respect to the convictions on

those counts. As noted, however, the verdicts were unani-

mous on three additional counts: possession of methamphet-

amine (Count 3), tampering with a witness (Count 10), and

criminal mischief (Count 12). Accordingly, we must consider

whether the error in admitting the other misconduct evi-

dence was harmless with respect to the convictions on those

counts.

“As a matter of constitutional provision, statute,

and rule, we may not reverse a judgment based on the erro-

neous admission of evidence if the error did not substan-

tially affect defendant’s rights, i.e., was harmless.” State v.

Carrillo, 304 Or App 192, 201, 466 P3d 1023, rev den, 367 Or

220 (2020). An error is harmless if there is little likelihood

that it affected the verdict. State v. Davis, 336 Or 19, 32, 77

P3d 1111 (2003). In Williams, the Supreme Court noted that

evidence of a defendant’s other misconduct, particularly

when it lacks legitimate probative value in the context of the

case, presents a substantial “risk that the jury may conclude

improperly that the defendant had acted in accordance with

past acts on the occasion of the charged crime.” 357 Or at 20.

As the trial in this case played out, that risk was palpable.

10

In State v. Turnidge (S059155), 359 Or 364, 432, 374 P3d 853 (2016), the

Supreme Court observed that, in Williams, it had “reserved” the question of “the

extent to which prior bad acts evidence can be admitted solely for propensity

purposes in criminal cases other than ones involving child sexual abuse.” That

question remains unresolved.

136 State v. Stockton

Defendant stipulated to his convictions for the

prior offenses (including the convictions involving S and T)

that, under ORS 163.160, would convert any fourth-degree

assault convictions in this case into felonies. Thus, evidence

of those convictions would not have been presented to the

jury unless the convictions were admissible as evidence of

other misconduct.11 As we have previously determined, the

evidence of defendant’s other misconduct, including those

convictions, was not relevant on the grounds asserted by

the state. Moreover, the state used the evidence to argue

that defendant should be held accountable, in part, because

he had evaded criminal responsibility for past violent acts

toward intimate partners. Except for the conviction in 2003

for assaulting S and the conviction in 2015 involving T, the

prosecutor told the jury in closing arguments, defendant

had been “let off the hook every single time.”

As the Supreme Court stated in addressing the

state’s harmless error argument in Skillicorn:

“[T]he state used [the other misconduct evidence] as pro-

pensity evidence, encouraging the jury to decide the case

based on impermissible character-based reasoning. Such

reasoning carries a risk of causing the verdict to be based

on unfair prejudice, and here, the prosecutor highlighted

defendant’s past driving, noting that he had not taken

responsibility for it and that he posed a danger to children

in the neighborhood. Propensity evidence also carries a

risk of causing the verdict to be based on an overestimation

of the probative value of the evidence.”

367 Or at 494.

The convictions on Counts 10 and 12 involved addi-

tional and related conduct in the February 20, 2016, incident

11

In State v. Hess, 342 Or 647, 662, 159 P3d 309 (2007), the Supreme Court

held that, assuming arguendo that the prior conviction requirement in ORS

163.465(2)(b) (public indecency) was an “element” of the crime that the state must

prove to a jury, a defendant’s judicial admission of a prior conviction established

the fact of the prior conviction conclusively and relieved the state of its burden

to prove that element of the crime. It concluded, therefore, that unless the state

demonstrated that the fact of the admission constituted otherwise relevant

evidence, the evidence of the prior conviction should have been excluded. Id. at

662-64. In State v. Brostrom, 214 Or App 604, 607, 167 P3d 460 (2007), rev den,

344 Or 109 (2008), we held that the reasoning of Hess likewise applied to a defen-

dant’s stipulation to the existence of prior convictions in a prosecution for fourth-

degree assault under ORS 163.160.

Cite as 310 Or App 116 (2021) 137

for which defendant was convicted of fourth-degree assault

(Count 11). The underlying acts included a threat against

T to find out what she had told police about an earlier inci-

dent involving domestic violence (Count 10), and an act of

criminal mischief involving the car T was driving as she

made her escape from defendant’s attack (Count 12). In his

closing argument, the prosecutor did not distinguish among

those acts and the assaults in reminding the jury that

defendant had not been held accountable for his past violent

acts. Because we cannot say there was little likelihood that

the erroneous admission of the other misconduct evidence

affected the verdicts on Counts 10 and 12, we conclude that

the error was not harmless with respect to the convictions

on those counts.

The state does argue that the error was harmless

with respect to the possession of methamphetamine con-

viction (Count 3), which involved an incident in 2015 where

defendant also was charged with assaulting T (Count 2), but

the jury acquitted him of the latter charge. Defendant has

developed no argument as to how the erroneous admission

of the other misconduct evidence would constitute harmful

error with respect to the drug conviction. See State v. Lotches,

331 Or 455, 487, 17 P3d 1045 (2000), cert den, 534 US 833

(2001) (“A defendant in a criminal case assigning error to

the exclusion or admission of evidence must establish that

the error was not harmless.”); see also State v. Nguyen, 293

Or App 492, 498, 429 P3d 410 (2018) (“[D]efendant has the

burden to demonstrate that the error affected a substantial

right.”). Accordingly, we affirm the conviction on Count 3.

Finally, as discussed above, see 310 Or App at 118

n 1, in addition to the assault convictions, several of defen-

dant’s other convictions (burglary (Count 4) and two counts

of coercion (Counts 5 and 9)) must be reversed in light of the

conceded errors in the nonunanimous verdicts.

Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12

reversed and remanded; remanded for resentencing; other-

wise affirmed.