State v. Burda

• Decision Date: 08 September 2022
• Docket Number: A174410
• Citation: 321 Or.App. 661
• Parties: STATE OF OREGON, Plaintiff-Appellant, v. DANIEL JAMES BURDA, Defendant-Respondent.
• Court: Oregon Court of Appeals

321 Or.App. 661

STATE OF OREGON, Plaintiff-Appellant,
v.
DANIEL JAMES BURDA, Defendant-Respondent.

A174410

Court of Appeals of Oregon

September 8, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted May 11, 2022

Jackson County Circuit Court 19CR44452; Lorenzo A. Mejia, Judge.

Lauren P. Robertson, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Neil F. Byl, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

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[321 Or.App. 662] KAMINS, J.

Defendant was charged with one count of second-degree manslaughter, ORS 163.125, one count of criminally negligent homicide, ORS 163.145, one count of first-degree criminal mistreatment, ORS 163.205, one count of second-degree abuse of a corpse, ORS 166.085, one count of fraudulent use of a credit card, ORS 165.055, one count of second-degree theft, ORS 164.045, and seven counts of aggravated identity theft, ORS 165.803. The state appeals a pretrial order excluding certain categories of evidence, raising six assignments of error. In sum, we conclude that the trial court correctly excluded evidence of defendant's drug use and statements unrelated to defendant's refusal to leave the victim's home but erred in excluding evidence relevant to defendant's motive. Therefore, we reverse the order in part, remand, and otherwise affirm.

The victim, who was "advanced in age," was found dead in his home, buried under an "extremely large" pile of clothing (weighing approximately 100 pounds, according to the state). The state's theory of the case is, in short, that when the victim attempted to evict defendant, defendant either "pushed [the victim] down to leave him to die, and then ultimately covered up the body with 100 pounds of clothes, or there was some kind of a struggle that led to his death." After the victim's death, defendant continued to live in the victim's home and made statements to police suggesting that he believed he would inherit the home.

Although evidence indicated that the victim died on or about July 15, 2018, the victim's body was not found until April 4, 2019. Due to the condition of the body, the state was unable to determine a cause of death. No witness was present when the victim allegedly tried to evict defendant on July 15, 2018, or when defendant allegedly caused the victim's death.

Prior to defendant's trial, defendant filed two motions in limine. First, defendant moved to exclude evidence of prior acts "attributable to defendant which are not plead in the indictment." In response, the state argued that the prior-acts evidence it would seek to introduce was relevant for non-propensity purposes under OEC 404(3). Second,

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[321 Or.App. 663] defendant moved to exclude evidence of an "interrogation of Defendant conducted by Brian Strickland," a polygraph examiner. In response, the state argued, in relevant part, that "[defendant's statements regarding the charged conduct [during the Strickland interview] are clearly relevant and admissible under OEC 401 and OEC 402."

The trial court held a hearing regarding the motions, received evidence, and heard arguments from the parties. The court ultimately entered an order excluding the following categories of evidence:

"1. Statements and evidence regarding Defendant's drug use ***; except for impeachment should Defendant testify

"2. Statements regarding prior verbal and physical conflicts (arguments) between Defendant and [the victim] * * *;

"3. [The victim's] call to 9-1-1 regarding eviction of Defendant ***;

"4. Statements and evidence regarding attempts to evict Defendant ***;

"5. Statements regarding Defendant's history of and circumstances related to housing, homelessness, and loss of housing (evictions) ***;

"6. Evidence regarding Defendant's prior behaviors as testified to by Jim Willeford and Mr. Kirk Peterson, Defendant's alleged 'escalation' in behavior following 2017, and any statements or evidence related thereto * * *;

"7. All evidence regarding Defendant's homosexuality * * *; and

"8. The interview of Defendant conducted by Brian Strickland***."

On appeal, in its first five assignments of error, the state challenges the trial court's exclusion of evidence of the following: (1) defendant's housing difficulties and experiences with homelessness; (2) the victim's call to 9-1-1 requesting assistance with defendant's removal from the victim's property; (3) defendant's confrontations with the victim prior to the victim's disappearance; and (4) defendant's drug use. In a combined argument, the state contends that that "evidence was relevant for nonpropensity purposes under OEC 404(3),

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[321 Or.App. 664] to prove defendant's motive, identity, and mental state." In its sixth assignment of error, the state contends that "the trial court erred in excluding defendant's interview[] with Strickland on the basis that [it was] not relevant."

"We review a trial court's determination that evidence is relevant for legal error, in light of the record that was before the court at the time it made its decision." State v. Davis, 290 Or.App. 244, 246-47, 414 P.3d 887 (2018) (internal citation and quotation marks omitted). And "[w]e review a trial court's determination of whether other acts evidence is relevant for a nonpropensity purpose under OEC 404(3) for errors of law." State v. Tinoco-Camarena, 311 Or.App. 295, 297, 489 P.3d 572, rev den, 368 Or. 561 (2021).

Defendant's drug use.

In the trial court, the state argued evidence that defendant was a frequent user of methamphetamine, and that methamphetamine use affected his behavior, was relevant to defendant's "state of mind" during the events in question, was not propensity evidence, and was therefore not rendered inadmissible by operation of OEC 404(3). Defendant contended that the state's proffered theory of relevance was based on improper propensity reasoning.

The trial court's apparent determination to exclude evidence of defendant's drug use under OEC 404(3) was not error. At its core, the state's theory of relevance was that, because defendant used methamphetamine and acted erratically on some occasions, he was likely acting erratically due to drug use at the time of the charged conduct. Without some additional connecting link between defendant's use of methamphetamine and the charged offenses, we conclude that the state's theory relied on propensity reasoning. See State v. Skillicorn, 367 Or. 464, 466, 479 P.3d 254 (2021) ("OEC 404(3) prohibits the admission of uncharged misconduct evidence for the purpose of arguing that a person has a propensity to commit certain acts, and therefore, it is more likely that the person committed such an act during the incident at issue.").

Defendant's confrontations with the victim before the victim's disappearance and the victim's 9-1-1 call.

In the trial court, the state argued that evidence of defendant's

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[321 Or.App. 665] confrontations with the victim before the victim's disappearance, as observed by the victim's neighbors, which included occasions where the victim expressed or demonstrated that defendant was not welcome at the victim's house, was relevant to defendant's motive-i.e., that defendant wanted to stay in the victim's house when the victim wanted defendant out of the house-and that that evidence therefore was not rendered...