State v. Warren

• Decision Date: 02 May 2018
• Docket Number: A153834
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Keoni Harold WARREN, aka Keoni Harold Cole, Defendant-Appellant.
• Court: Oregon Court of Appeals

291 Or.App. 496
422 P.3d 282

STATE of Oregon, Plaintiff-Respondent,
v.
Keoni Harold WARREN, aka Keoni Harold Cole, Defendant-Appellant.

A153834

Court of Appeals of Oregon.

Argued and submitted November 17, 2015.
May 2, 2018

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Keoni Warren filed the supplemental brief pro se.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Hadlock, Judge, and Allen, Judge pro tempore.

ARMSTRONG, P.J.

291 Or.App. 498

Defendant appeals a judgment convicting him of attempted promoting prostitution (Counts 1 and 10), fourth-degree assault (Counts 2 and 8), harassment (Counts 3 and 9), second-degree assault (Count 4), unlawful use of a weapon (Count 12), coercion (Count 6), menacing (Count 13), attempted compelling prostitution (Count 11), and felon in possession of a firearm (Count 14). Defendant assigns error to the trial court's admission of printed internet pages that advertised prostitution services. In his first three assignments, he contends that the trial court erred in ruling that the advertisements were admissible under OEC 404(3)¹ to prove defendant's plan or "general prostitution enterprise," and that the trial court abused its discretion under OEC 403² in determining

422 P.3d 285

that the probative value of the evidence outweighed its prejudicial effect. In his fourth assignment, he contends that the advertisements contained out-of-court statements made by declarants who did not testify at trial and, therefore, that they were admitted in violation of OEC 802³ and Article I, section 11, of the Oregon Constitution.⁴

We conclude that the advertisements did not contain hearsay because they were verbal acts that were not offered for the truth of the matter asserted in them, and, thus, the admission of the advertisements did not violate OEC 802 or defendant's right under Article I, section 11, to confront witnesses. However, we conclude that the trial court erred in

291 Or.App. 499

admitting the advertisements as nonpropensity evidence of defendant's plan to commit the charged crimes and that the error was not harmless with respect to defendant's convictions for attempted promoting prostitution and attempted compelling prostitution. We therefore reverse and remand defendant's convictions on Counts 1, 10, and 11, and otherwise affirm.⁵

I. FACTUAL AND PROCEDURAL BACKGROUND

We summarize the testimony relevant to the trial court's decision to admit the disputed evidence, which is a ruling that we review for legal error. State v. Stapp , 266 Or. App. 625, 626, 629, 338 P.3d 772 (2014).

A. The State's Case

In April or May 2011, A was working as an adult entertainer when she met and began a sexual relationship with defendant. A was struggling financially and living in a hotel. She considered engaging in prostitution so that she could afford to rent an apartment. Defendant was living at that time with three women, Young, Wilson, and Holman.

Early in their relationship, defendant asked A to engage in an act of prostitution with Wilson and Holman, but A refused. After about two and one-half months, A and defendant's relationship became violent; on one occasion, defendant choked A after she refused to have sex with him and another woman. When defendant learned that A had had sex with a pimp, he pushed and kicked A and took money from her.

Defendant told A that, if she wanted her money back, she would have to listen to what he said, and he urged her to begin prostituting herself. A believed that defendant would leave her if she did not prostitute herself. At first, A tried to prostitute herself on the "track" along 82nd Avenue in Portland, but she was not offered enough money by prospective customers for her to agree to engage in sexual acts with them. Defendant encouraged A to keep trying, explaining that the money would add up. A became frustrated and sent a text message to defendant, "I will never again walk the track for anyone. I'm not that desperate for cash."

Defendant suggested that A place prostitution advertisements on the internet—specifically on craigslist. com and backpage.com—rather than walk the track. He took photos of A for use in the advertisements and paid for the advertisements with Young's credit card. Defendant also rented hotel rooms and gave A ecstasy to facilitate her prostitution transactions. Although A received responses to the online advertisements, she ultimately refused to have sex with any of the customers because they wanted to have unprotected sex with her. Defendant became angry and threw a chair at A, accusing her of wasting the money that he had spent on the hotel rooms.

422 P.3d 286

At one point, he sent a text to A, demanding that she "[put her] info back up on the post."

On October 21, 2014, A sent defendant several text messages telling him that she wanted to make him happy by putting "money in his pocket." She told him that she was "trying" and assured him that she would walk the track. When defendant ignored the text messages, A responded, "I know I'm getting brushed off, 'cause I'm not waving $800 in your face." A knew from looking at messages on defendant's phone that "the girls who are offering him money are getting a lot more responses than the girls who aren't."

Defendant asked A to place an internet advertisement for a "two-girl special." He told her that he wanted her to do the "special" with Wilson or Holman. A told defendant that she was uncomfortable with engaging in prostitution with either of them. Knowing that he would be angry with her because of her response, A sent defendant a text asking him "to wait to beat [her] ass" until after she dropped her son off at her mother's home.

At around noon the day of the exchange of text messages between defendant and A, defendant picked up A and her son at her home. Defendant was angry, and, while A was trying to put her son's car seat into defendant's car, defendant assaulted A from behind, causing an abrasion to her shoulder. When A turned around, defendant hit her in the face, cutting her lip. A got in the passenger seat and began arguing with defendant. Defendant then shot A in the left leg with a small-caliber handgun, causing her to suffer extreme pain and to vomit out of the window.

A asked defendant to drop her son off at her mother's house, which he did. Defendant then drove to his house nearby, where he gave A ecstasy and prescription painkillers. Cach, a friend of defendant's who was also a nurse's assistant, came over and bandaged A's leg wound. When Cach asked defendant what had happened, he replied, "What happens when you waste my time?"

Defendant drove A to a motel where his cousin and two other women were staying. He left A with a laptop, instructing her to take a shower and place an advertisement on backpage.com. When A failed to post the advertisement, defendant hit A in the face and stomach and then instructed her to get into his car. After she got into defendant's car, he hit her in the face a few more times. Defendant told A that she "could either stop playing around with his time and with his money and buckle down and be serious," or he could let her go and "the next time he sees [her] he's going to kill [her] with whoever [she's] with."

Defendant and A separated at around 10:00 p.m. near a local high school. Defendant told A that he was going to leave for a few hours to give her time to "think about what [she] wanted to choose to do," and told her to text him "when [she] was ready." He then threatened to kill her if she contacted the police. A locked herself in a bathroom at the school and called an acquaintance for a ride. She also sent her mother a text message telling her that defendant had shot her, after which A's mother called 9-1-1. While A waited for her friend to arrive, she sent defendant several text messages. First, she told defendant to stay away from her and her family. Then, an hour later, she sent defendant a message asking him to take her and her son to Minnesota with him, stating, "My family doesn't get it. I'm not going to square up. I will go to rehab and get some help, but I'm not a square, nor will I ever be." Defendant did not respond to those messages.

A then called the police. In a recorded 9-1-1 call, she explained that defendant had shot her and that she wanted to go to a hospital. When the police arrived, A told an officer that her boyfriend had shot her because he was upset that she had recently cheated on him and because she "did it for free" instead of making him money. A explained that she was disrespecting defendant and told the police that she had placed an advertisement on craigslist.com to "make him happy." She also said that defendant had threatened to hurt her "if she didn't obey him regarding that." At the hospital, the police questioned A again, and she repeated her story. She told a detective that she prostituted "for herself for stability,"...