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State v. Morrow

Court of Appeals of Oregon

August 14, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CLARENCE ELWOOD MORROW, Defendant-Appellant.

          Submitted July 30, 2018

          Deschutes County Circuit Court 16CR64864 Walter Randolph Miller, Jr., Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction for felony fourth-degree assault, ORS 163.160(3), and harassment, ORS 166.065(3), in connection with an alleged incident between defendant and his girlfriend T. Defendant asserts that the trial court erred by admitting evidence of other uncharged acts of domestic violence against the same victim. The other acts occurred over approximately 14 months and included multiple incidents in which defendant got drunk, got upset with T about something, tried to kick her out of wherever they were staying, and assaulted her when she did not leave. The trial court admitted the other-acts evidence under OEC 404(3) as relevant to showing defendant's motive for the charged acts. Defendant contends that the other-acts evidence was not relevant to motive and, instead, was improper character evidence. The state defends the trial court's ruling, arguing that the uncharged acts are logically connected to the charged acts because they involved similar conduct and that they tended to show that defendant's motive for the charged acts was "defendant's hostility toward [T] and his desire to exert control over her." Held: The trial court [299 Or.App. 32] erred in admitting the evidence of the other uncharged acts as relevant to motive for the charged acts under OEC 404(3). On this record, the evidence does not allow an inference that defendant was "generally hostile" toward T, so as to provide a common motive for all acts of violence over an extended period of time. As for the state's "control" argument, the state did not identify that alleged motive to the trial court. In any event, on this record, the state's argument falls on the side of character and propensity reasoning, rather than motive.

         Judgment of conviction for fourth-degree assault and harassment reversed and remanded; otherwise affirmed.

          [299 Or.App. 33] AOYAGI, J.

         Defendant was convicted of felony fourth-degree assault, ORS 163.160(3), and harassment, ORS 166.065(3), in connection with an alleged incident between defendant and his girlfriend T; he was acquitted of other charges. On appeal of the judgment of conviction, defendant asserts that the trial court erred by admitting evidence of prior uncharged acts of domestic violence against the same victim. The trial court admitted that evidence under OEC 404(3), as relevant to showing defendant's motive for the charged acts. Defendant contends that the other-acts evidence was not relevant to motive and, instead, was improper character evidence. We agree with defendant that, on this record, the evidence should not have been admitted as motive evidence under OEC 404(3) and that the error was not harmless.[1]Accordingly, we reverse and remand defendant's convictions.

         I. THE RECORD

         A. Pretrial Offer of Proof

         OEC 404(3) is an inclusionary rule that allows trial courts to admit other-acts evidence on "'any theory of logical relevance'" that does not depend on propensity-based reasoning. State v. Jones, 285 Or.App. 680, 682 n 2, 398 P.3d 376 (2017) (quoting State v. Johns, 301 Or. 535, 548, 725 P.2d 312 (1986)). We review a trial court's decision to admit other-acts evidence in light of the record before the trial court at the time of its decision. State v. Rice, 289 Or.App. 282, 283, 410 P.3d 282 (2017), rev den, 362 Or. 795 (2018). Here, the state moved pretrial to admit evidence of "prior threats and acts of violence" committed by defendant against T, and defendant moved pretrial to exclude such evidence as inadmissible. The trial court held a pretrial hearing, during which the state made an offer of proof, and after which the court ruled. We therefore summarize the state's offer of proof[2] as [299 Or.App. 34] the record before the trial court at the time of its decision. See Rice, 289 Or.App. at 283-84.

         Defendant and T began a relationship in 2015. Defendant was physically abusive from the beginning. He first hit T during their second week together, and there were "many" incidents of abuse thereafter. Defendant and T are both alcoholics, and alcohol was a recurring factor in the abuse. When asked what led defendant to hit her on one particular occasion, T responded, "Just-it's always alcohol. There's always-I don't remember what that specific one was about."

         For the first 13 months of their relationship, defendant and T were "camping, homeless, or renting hotel rooms, trying to save up to get a home." During that time period, there were multiple incidents in which defendant and T would rent a motel room, defendant would get drunk and try to kick T out of the room, and then defendant would assault T. T described the typical sequence of events as follows: When they checked into a motel, defendant would put only his name on the register, which T perceived as "almost like this control thing." Then defendant would start drinking. At some point, he would try to eject T from the room, even if it was the middle of the night, and regardless of the weather or how she was dressed, citing the fact that her name was not on the register in support of his right to make her leave. When T resisted leaving, defendant would "start throwing [her] around the room." Then defendant would call the police to have her removed. There were multiple incidents at several motels, including the Rainbow Motel and the Bend Value Inn, that followed that same pattern.

         Another time, defendant and T were renting a room at a Motel 6. T encountered a friend of defendant's while waiting for defendant to return from work. Defendant had stopped on his way home to drink vodka. When defendant arrived, T told him that his friend, who was renting the room next door, wanted to see him. Defendant "started saying all these foul things about what [T] probably had been doing [299 Or.App. 35] with this man while [defendant] was at work." Defendant physically picked up T, threw her against the wall "a couple times," and threw her out of the room. He tossed all her clothes and belongings in the dumpster. Someone called the police.

         At some point, defendant and T moved into a room in a boarding house together. Defendant continued to be physically abusive. T "had marks quite a few times," and, once, the landlady "just pointblank asked [T] how long he'd been hitting [her]." In late September (about three weeks before the charged acts), defendant came home in the middle of the night "completely wasted" and "just drunk off his butt." He started with "the same stuff as usual-calling T an offensive name, telling her to leave, telling her that she was not on the rental agreement, and throwing T around and trying to throw her out. He may have "tried to flip the mattress over on [T]," and T "think[s] he even got [her] by the neck that time, too." Then he called the police.

         The charged incident occurred on October 13. The night before, defendant and T each drank a small amount of beer at the end of defendant's workday. Sometime thereafter, T went outside to ask defendant a question. Defendant "cussed [her] out in front of the neighbors" and "called [her] a bitch because [she] was embarrassing him because [she] was bugging him while he was smoking pot with his friends." T went back inside. When defendant came inside, he "acted like he hadn't even done anything" and was back to being "loving [and] caring." At that point, defendant and T resumed drinking, with each consuming a 40-ounce beer. Defendant said something about getting vodka. T asked him not to get vodka. Because they were both alcoholics, defendant and T "had agreed that there wouldn't be any more hard alcohol around, because it tends to escalate things and, you know, turn things bad quickly." Nonetheless, defendant went to the store and bought vodka. Defendant drank the entire bottle of vodka in 25 minutes, except for one "tiny sip" that T took. Defendant left to go buy marijuana, returned briefly, and then left again without explanation. T fell asleep.

         Around 2:00 a.m. on October 13, defendant returned to the room. He was "extremely intoxicated" and could hardly [299 Or.App. 36] walk. T asked where he had been, to which defendant responded by calling T offensive names and demanding that she leave. T replied that it was the middle of the night and that she was not going to leave. She told him to calm down and lower his voice so that they would not get kicked out. Defendant tried to flip the mattress over T, then picked her up and slammed her against the wall. He "got [her] by the neck" and "squeezed really hard and slammed [her] head into the back of the wall." T briefly got away, but defendant grabbed her and "kept banging [her] against the sliding glass door." Defendant began saying that "he was going to call the police because [T] wasn't *** on the rental agreement." T tried to talk him out of it, because she did not want him to get into trouble, but defendant insisted, so she finally gave him the phone and he called 9-1-1.

         Defendant was arrested. A grand jury indicted him on charges of assault, harassment, and strangulation.

         B. Pretrial Arguments and Ruling

         Before trial, the state filed a written motion to admit evidence of prior acts of domestic violence committed by defendant against T, and defendant moved to exclude such evidence. The state asserted multiple potential grounds for admission in its written motion. The state's primary argument was that the evidence was admissible under a "hostile motive" theory-that defendant's "past violent acts, threats, and coercive behavior toward [T] show that he has a pattern of abusing her when he is intoxicated, and when she does not cooperate with him"; show his "ongoing bitterness toward [T]"; and show that defendant has a hostile motive toward his domestic partners, "a class of persons to which [T] belongs." Under a separate heading, the state posited alternative bases for admission: first, as evidence of defendant's intent and lack of mistake, because the charged crimes required the state to prove that defendant acted intentionally, and, second, as "context" evidence to explain the relationship between the parties, including why T did not call the police herself, because the state "anticipate[d]" that defendant would try to undermine T's credibility by pointing to her "lack of disclosure and [her] long-term relationship with defendant."

          [299 Or.App. 37] At the hearing, the state began by saying that it would let its written motion speak for itself, and then briefly reiterated that the evidence was admissible as relevant to (1) motive, (2) intent and lack of mistake, and (3) explaining the parties' relationship, specifically "why the victim herself did not call police, why it was the defendant that called police, and why she did not leave this relationship early." The state then put on its offer of proof. Finally, the parties made closing arguments. The state focused on the motive ground for admission in its closing, arguing:

"[T]hese prior bad acts are almost identical to the act in question in this case, Your Honor. Defendant gets intoxicated, he wants the victim to leave, he ends up throwing her around and roughing her up, leaving marks. This happened multiple times before this, as the victim described.
"[The landlady] noted that the victim would come to her and say that he was roughing her up. She had visible bruising after that.
"Again, Your Honor, under the case law, this is admissible for nonpropensity purpose or for motive. Again, these are almost identical acts. They show his motive each and every time. He wants the victim to leave the apartment, she's not complying with what he wants her to do, so he resorts to physical violence."

         In response to the state's arguments, particularly regarding motive, defendant argued that there was "a very fine line" between motive and propensity evidence and that the evidence the state sought to offer was both irrelevant and unfairly prejudicial. Defendant challenged the "logical relevance" in "saying that these prior alleged actions in some way establish a motive here in this situation to commit these alleged acts."[3]

         In rebuttal at the hearing, the state again pointed to the similarity of the occurrences as evidence of motive, [299 Or.App. 38] arguing that the other incidents were "almost exactly the same as what occurred on the night of October 13th." When the trial court asked how similarity showed motive, as opposed to showing "prior bad acts in conformity," the state initially answered that the evidence did establish prior bad acts in conformity. After the trial court correctly noted, "That's not motive," the state concluded its closing by stating:

"[T]hat's not, in and of itself, motive. But that is one of the requirements that we would need to prove in order to get these in, that these are substantially similar.
"It does prove motive, Your Honor, as to why he engaged in the acts he did on the night in question when he's engaged in the exact same behavior prior to this on a number of occasions with the same victim, doing the exact same things and the same scenario. It provides a reason as to why he did it on this night.
"Now, the jury's naturally going to be wondering why the defendant was the one to call police, what his motive would be. But when we have these other incidents, where he's done the exact same thing each and every time, with the exact same motive, it provides the motive in this case as well, Your Honor.
"So for that, Your Honor, I think these are admissible under the case law."

         Because it is relevant to an issue raised by the dissent, we note that the state's final response commingled the three separate grounds on which it had moved to admit the evidence, all of which were before the court, in a way that was confusing but that we do not view as having been meant to change its previously articulated and well-developed arguments. See Maxfield v. Nooth, 278 Or.App. 684, 687, 377 P.3d 650 (2016) (written arguments are properly before the trial court, whether or not reiterated orally). The state's initial point, regarding the need to prove the similarity of the acts, confused motive with the alternative nonmotive ground of "intent and lack of mistake." See State v. Turnidge (S059155), 359 Or. 364, 435-37, 374 P.3d 853 (2016), cert den, 137 S.Ct. 665 (2017) (for evidence to be relevant to lack of [299 Or.App. 39] mistake on a doctrine-of-chances theory, the prior bad acts must be similar to the charged acts, but that is not necessary for evidence to be relevant to motive). The next point, regarding the similarity between the acts and "why he did it," reiterated the state's motive argument. And the last point, referring to defendant's "motive" to call the police, ties to the state's argument that the evidence should be admitted as "context" evidence (a nonmotive basis) to explain why it was defendant who called the police, rather than T, and why T did not leave.[4]

         At the conclusion of the hearing, the trial court found that the state had proved by a preponderance of the evidence that defendant had committed uncharged acts of domestic violence against T. The court later ruled that the evidence of those acts was admissible under OEC 404(3) as relevant to motive:

"Rule 404 enumerates motive, as I said, and, as you both have detailed and outlined in your motions, it's one of the nonpropensity purposes of admitting evidence of a person's uncharged acts.
"Evidence is relevant to prove motive if it tends to show why the defendant committed the charged crime. The Court finds that the allegations of physical abuse that [T] says took place approximately three weeks prior to the October 13 incident and those she alleges took place at the EconoLodge, Motel 6, Rainbow Motel, and the Bend Value Inn, are relevant for the nonpropensity purpose of showing motive to commit the crimes charged. The probative value of this evidence is not outweighed by its potential prejudicial effect. So those specifically alleged prior bad acts are admissible."

          [299 Or.App. 40] The trial court did not address any of the other grounds that the state had argued to admit the evidence. It ...


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