State v. Easley

290 Or.App. 506

415 P.3d 1099

STATE of Oregon, Plaintiff-Respondent,

v.Donald Lee EASLEY, Defendant-Appellant.

A158033

Court of Appeals of Oregon.

Argued and submitted October 11, 2016.

February 28, 2018

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

LAGESEN, J.

Defendant fatally shot his neighbor Estes after an extended period of mutual hostility. For that conduct, defendant was charged with one count of murder with a firearm, ORS 163.115 ; ORS 161.610, and one count of unlawful use of a firearm, ORS 166.220. In response, defendant claimed self-defense. At trial, over defendant's OEC 401 and OEC 403 objections, the trial court admitted evidence that defendant had fatally shot his prior neighbor, Vaughn, for the purpose of explaining what defendant meant when, before the shooting, defendant had told a number of different people that, if he did not resolve his dispute with Estes, then defendant would do to Estes what he did to Vaughn. Additionally, the trial court admitted some but not all of the evidence demonstrating Estes's violent and aggressive character as relevant to defendant's claim of self-defense. The court did so after finding that defendant had not established a sufficient foundation for the admission of the reputation and opinion evidence, and that the evidence of specific instances of conduct illustrating Estes's character were not admissible for other reasons. A jury convicted defendant on both charges.

On appeal, defendant assigns error both to the admission of the evidence that he had shot Vaughn and to the exclusion of the evidence pertaining to Estes's character. For the reasons that follow, we affirm, concluding that (1) the trial court did not err under OEC 401 or abuse its discretion under OEC 403 by admitting the evidence pertaining to defendant's shooting of Vaughn; (2) defendant did not preserve the argument that he makes on appeal regarding the trial court's exclusion of reputation and opinion evidence pertaining to Estes's character; and (3) although the trial court erred in excluding some evidence of specific instances of Estes's conduct that were probative of self-defense, any such error was harmless.

I. FACTUAL AND PROCEDURAL BACKGROUND

Although the facts surrounding the shooting underlying defendant's convictions were sharply disputed at trial, the facts pertinent to the evidentiary issues raised on appeal are not.

Defendant intentionally shot and killed his neighbor Estes after a period of escalating hostility between the two, which led to the charges against defendant. Estes's partner, Hicks, corroborated that defendant intentionally killed Estes. She testified that defendant started shooting at Estes through the fence dividing the neighboring properties after Estes slipped and fell against the fence. According to Hicks, Estes tried to get away but was shot in the back. Defendant's self-defense theory, which was supported at trial primarily by evidence of statements that he had made to the police after the shooting as well as evidence of Estes's prior conduct, was that he had defended himself by shooting Estes after Estes reached through a hole in the fence and grabbed defendant while he was working to repair damage to the fence. Defendant also presented evidence that, about a month before that incident, Estes had grabbed defendant by his hair, punched defendant in the face, and kicked him in the head and the sides, causing substantial injuries to defendant and also making defendant fear for his life.

Before trial, defendant moved in limine for an order to instruct the state to "refrain absolutely from making any reference whatsoever" about defendant's involvement in a "prior altercation" with his previous neighbor Vaughn, which resulted in Vaughn's death. Defendant argued that any evidence referencing that incident would be inadmissible because (1) that evidence is too unreliable to meet the threshold for admissibility, in violation of either OEC 402 or the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (2) that evidence is not relevant and therefore not admissible under OEC 401 and 402 or OEC 403 ; (3) that evidence is improper character evidence and admissible under OEC 404 only if defendant puts his character at issue; and (4) the prejudicial effect of the evidence outweighed its probative value, requiring exclusion under OEC 403.

The state responded that, although the evidence that defendant shot Vaughn was not independently relevant, it was made relevant by the evidence that defendant had stated on a number of different occasions to a number of different people that Estes was at risk of meeting the same fate as Vaughn. The state explained that, without knowing what happened to Vaughn, the jury would not recognize defendant's statements as threats to kill Estes. The state argued that the evidence of the threats spoke to defendant's state of mind and was therefore admissible under OEC 803(3). The state also argued that the prior act would be admissible under OEC 404(1), as relevant to the crime at issue, and admissible under OEC 404(3) to show intent, motive, and plan.

The trial court ruled that the evidence was relevant for the limited reasons articulated by the state, that is, to explain what defendant meant when he told people that what happened to Vaughn might happen to Estes and, further, that the evidence that defendant had made those threats was relevant to show defendant's state of mind and negate his claim of self-defense. The court concluded that, although the evidence was prejudicial, it was "probative enough so it would be admissible even under OEC 403(3)." The court explained that, if requested to do so, it would address the potential for prejudice from the evidence by providing a limiting instruction that would restrict the jury from relying on that evidence for any purpose other than that for which the court had deemed the evidence relevant.¹ Based on those conclusions, the court denied defendant's motion in limine to exclude all evidence relating to the Vaughn shooting.

In addition to seeking to exclude evidence that he had shot Vaughn, defendant moved in limine and at trial to introduce a range of evidence of Estes's character for violence and aggression to show, among other things, that defendant had a reasonable belief that he needed to shoot Estes to defend himself. That evidence consisted primarily of testimony from eight witnesses regarding Estes's reputation for violence and aggression and the witnesses' opinions of Estes's violent and aggressive character, as well as some evidence regarding specific instances of violent and aggressive conduct. Although the trial court admitted some of the evidence, it ruled that defendant had failed to establish an adequate foundation to allow for the admission of most of the testimony addressing Estes's reputation and the witnesses' opinions of Estes's character.

As to the evidence of specific instances of conduct, the trial court excluded an audio recording of a conversation involving defendant, his neighbor Richter, and two unidentified persons, in which one person stated that she "believed" that Estes had fired a shotgun into the air, and another person stated that he or she saw Estes with a pistol. The court reasoned that, absent testimony from defendant about what he was thinking at the time of the shooting, it would be speculative to infer that the instances of Estes's conduct discussed on the tape bore on defendant's belief, or the reasonableness of that belief. The court also ruled that Richter could not testify regarding specific instances of conduct by Estes. Richter apparently would have testified that she observed that Estes possessed and used a gun.

The jury convicted defendant. On appeal, defendant assigns error to the trial court's denial of his motion in limine to exclude evidence regarding the Vaughn shooting and to the court's exclusion of the range of character evidence related to Estes. Defendant argues that the evidence related to the Vaughn shooting was not relevant; that in conducting its OEC 403 balancing, the court failed to make the record required by State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987) ; and that, if the court's record is adequate, the court abused its discretion in concluding that the probative value of the evidence outweighed the risk of unfair prejudice presented by the evidence. As to the character evidence, defendant argues that the court erred when it concluded that defendant was required to establish a foundation in the manner described in State v. Colon , 251 Or. App. 714, 284 P.3d 589 (2012), and State v. Maxwell , 172 Or. App. 142, 18 P.3d 438 (2001), to introduce evidence of Estes's reputation or opinion evidence of Estes's character under OEC 401(1) for the purpose of showing the reasonableness of defendant's belief of the need for self-defense. Specifically, defendant asserts that the foundation requirements for reputation and opinion-of-character evidence described in those cases apply only to the admission of such evidence for impeachment purposes under OEC 608, and do not apply when such evidence is offered for the purpose of establishing the reasonableness of a defendant's belief of the need for self-defense.

With respect to the evidence of Estes's specific instances of conduct, defendant argues that the trial court erred in excluding evidence of the recording. Defendant also assigns error to the exclusion of testimony from Richter regarding Estes's specific instances of violent conduct, as well as to the exclusion of testimony...