State v. Bracken

• Decision Date: 09 May 2001
• Parties: STATE of OREGON, Appellant, v. Jeremy Owen BRACKEN, Respondent.
• Court: Oregon Court of Appeals

23 P.3d 417

174 Or. App. 294

STATE of OREGON, Appellant, v. Jeremy Owen BRACKEN, Respondent.

98-0899; A104396

Court of Appeals of Oregon.

Argued and Submitted February 21, 2001.

Decided May 9, 2001.

Janet A. Klapstein, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Monica L. Finch, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, State Public Defender.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Defendant was charged with murder, ORS 163.115, arising out of a shooting that took place on the front porch of his residence. Defendant contends that he killed the victim in self-defense. The state's theory is that defendant shot the victim in the course of protecting against the discovery of a marijuana growing operation inside his residence, or, in the alternative, that defendant was angry because the victim already had discovered the growing operation. The state moved to introduce evidence of the indoor growing operation, but the trial court denied the motion. The state appeals from that decision. We review the trial court's ruling that the evidence was not relevant for errors of law, State v. Hampton, 317 Or. 251, 855 P.2d 621 (1993), and its determination that the evidence would be unfairly prejudicial for abuse of discretion, State v. Johns, 301 Or. 535, 557-59, 725 P.2d 312 (1986). We reverse.

Except as noted, the following facts were undisputed in the hearing on the state's motion to admit the challenged evidence. Defendant and his roommate, Shelly Walsh, returned home on May 10, 1998, to discover a note on their door from someone who claimed to have information about trespassers on defendant's property. Walsh called the telephone number on the note and spoke to Jake Hayward, defendant's neighbor. Defendant and Walsh agreed to meet with Hayward and Jeff Donner—Hayward's roommate—regarding the trespass. Hayward and Donner knew that Donner's younger brother and a friend had stolen 11 small marijuana plants from defendant's back yard. By contacting defendant, Hayward and Donner meant to return the plants without getting the police involved.

Defendant and Walsh went to Hayward's residence. Hayward and Donner were reluctant to acknowledge that the property taken by Donner's brother was marijuana, and they refused to identify the persons responsible for the trespass and theft. Defendant was angry that Hayward and Donner would not identify the perpetrators, and he and Walsh left. After defendant and Walsh left, Donner and Hayward discussed their options and decided to tell defendant who had stolen the marijuana plants and where the plants had been stashed. Shortly thereafter, Hayward and Donner approached defendant's house to discuss the matter. Defendant concealed a gun behind his back as he answered the door.

There is a dispute regarding the events that transpired next. The state contends that the evidence will show that Hayward told defendant who had taken the marijuana plants and where they had been stashed. Defendant then threatened Donner and Hayward, stepped back and, as Donner dove off of the porch, shot and killed Hayward. Defendant contends that the evidence will show that Hayward charged at him and threatened him and that defendant shot Hayward in self-defense.

When the police arrived, defendant admitted shooting Hayward but asserted that he had fired the weapon in self-defense. Defendant would not allow police to search his house at the time, but the police arrested him and took him into custody based on the evidence they had recovered and from witness statements. Four days later, police officers interrupted someone breaking into defendant's unoccupied house. The trespasser was attempting to remove marijuana growing materials and marijuana plants from defendant's house. At that time, police discovered the indoor marijuana growing operation. Defendant was charged with multiple drug manufacturing offenses that the state initially attempted to consolidate with the murder count. The trial court denied the state's motion to consolidate the murder charge and the drug charges. Defendant opposed the state's motion in the murder case to admit the drug operation evidence seized from the house.¹

In the omnibus hearing in which its motion was heard, the state introduced evidence of the indoor growing operation, including growing lamps and approximately 70 marijuana plants, arguing that the evidence would rebut defendant's claim of self-defense to the murder charge. Defendant asserted that the evidence had no logical relevance to the murder charge and should be excluded as improper character evidence under OEC 404(3).² The trial court excluded the evidence on the ground that it was not relevant under the cumulative five-fold test for relevance set out in Johns, 301 Or. at 555-56, 725 P.2d 312, and because "the probative value of [the] evidence for the purpose it is offered is so tenuous [that] it creates a serious danger of unfair prejudice, confusion of issues and would mislead the jury."

On appeal, the state does not dispute that the challenged evidence fails to satisfy the Johns test. However, it renews its argument that the evidence is relevant to prove defendant's motive in killing Hayward. It argues that the proper test for relevance is set out in Hampton, 317 Or. at 254, 855 P.2d 621, and that the Johns relevance factors are inapplicable to motive evidence. The state also argues that the probative value of the evidence is not substantially outweighed by any unfair prejudice that might result from admitting it and that OEC 404(4) requires admission of the evidence without balancing its relevance against its potentially prejudicial effect. Defendant responds that Johns controls here, that the evidence is not relevant under the Johns test, and, even if it were relevant, the trial court did not abuse its discretion in excluding the evidence under OEC 403. Finally, defendant responds that the state's OEC 404(4) argument was not preserved and that Senate Bill 936 (SB 936), from which OEC 404(4) originated, is unconstitutional in its entirety.

The first question for decision is whether the trial court erred in determining that the evidence was not relevant. The answer to that question depends on whether the Johns test applies to the evidence. In Johns, the Supreme Court set forth the determinations a trial judge must make in determining whether "prior crime evidence on the issue of intent or absence of mistake" is relevant:

"(1) Does the present charged act require proof of intent?

"(2) Did the prior act require intent?

"(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

"(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

"(5) Were the physical elements of the prior act and the present act similar?" 301 Or. at 555-56, 725 P.2d 312.

If the answer to each of those questions is in the affirmative, the trial court must then determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. at 556, 725 P.2d 312.

In Hampton, the Supreme Court employed a less detailed, three-part test to determine the admissibility of uncharged misconduct evidence in general, not limiting its application to evidence offered for a specific purpose in the same way that Johns is limited to evidence offered to prove intent or absence of mistake:

"`(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403.'" 317 Or. at 254,855 P.2d 621 (quoting State v. Johnson, 313 Or. 189, 195, 832 P.2d 443 (1992)).

This court considered the possible tension between the Johns and Hampton tests in State v. Rinkin, 141 Or.App. 355, 917 P.2d 1035 (1996).³ There, in a prosecution for attempted sodomy, we employed the Johns test to determine whether evidence of the defendant's uncharged sexual misconduct toward other juvenile victims was relevant to prove that the defendant acted with the requisite criminal intent. Id. at 368, 917 P.2d 1035. We concluded that the Johns and Hampton tests did not conflict, because the first prong of the Hampton test incorporated the five Johns relevance factors in cases where uncharged misconduct evidence was offered to prove intent. Id. at 368 n. 7, 917 P.2d 1035.

We reiterated our understanding of the distinction between the two tests in State v. Leach, 169 Or.App. 530, 9 P.3d 755 (2000). In Leach, the defendant argued that the trial court had properly excluded prior sexual misconduct evidence in a sex abuse prosecution, because the Johns test applied to the state's theory that the evidence was relevant to prove the defendant's "plan" or "preparation" under OEC 404(3). We disagreed.

"Although defendant seems to assume otherwise, Johns's requirements do not apply to all `non-propensity' bases for admissibility, including those specifically identified in OEC 404(3). See, e.g., State v. Hampton, 317 Or. 251, 257, 855 P.2d 621 (1993)

(proof of the defendant's `parole status,' including fact that there was an outstanding warrant for his arrest for a parole violation, was admissible as relevant to motive in the defendant's trial for assault of a police officer: `[T]he evidence of defendant's parole status tended to prove a relevant, noncharacter purpose that defendant had a motive to assault the officer.'). Rather, Johns, by its terms, controls only where `prior bad acts' evidence is offered to prove intent. See Johns, 301...