State v. Morrow, A163970

CourtCourt of Appeals of Oregon
Citation448 P.3d 1176,299 Or.App. 31
Docket NumberA163970
Parties STATE of Oregon, Plaintiff-Respondent, v. Clarence Elwood MORROW, Defendant-Appellant.
Decision Date14 August 2019

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

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

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


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.

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 283 (2017), rev. den. , 362 Or. 795, 423 P.3d 714 (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 proof2 as the record before the trial court at the time of its decision. See Rice , 289 Or. App. at 283-84, 410 P.3d 283.

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 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 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."

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

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3 cases
  • State v. Stockton
    • United States
    • Court of Appeals of Oregon
    • 17 d3 Março d3 2021
    ...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 P.3d 1176 (2019). In Morrow , the defendant was convicted of felony fourth-degree assault, ORS 163.160(3), and harassment, ORS 166.065(......
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    • 1 d3 Abril d3 2020
    ...decision to admit other-acts evidence in light of the record before the trial court at the time of its decision." State v. Morrow , 299 Or. App. 31, 33, 448 P.3d 1176 (2019). In this case, the trial court initially ruled on the admissibility of the evidence at a pretrial hearing; however, d......
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    ...earlier conduct in response to the victim's attempt to evict him was admissible as "common motive" evidence. See State v. Morrow, 299 Or.App. 31,49,448 P.3d 1176 (2019) (describing "common motive" evidence as evidence of "a single motive that persisted over a period of time and motivated mu......

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