State v. Herring, 375 Or 350

Defendant was charged with attempted murder and related offenses after a daytime hospital parking-lot shooting in which he allegedly fired six shots at rival-gang member S using a gun supplied by codefendant. 1
To prove motive, the state sought to admit evidence of defendant’s membership in the Woodlawn Park Bloods, gang rivalry and culture, and S’s prior killing of defendant’s brother, a Bloods member. 2
The trial court admitted the gang evidence under OEC 404(3) as noncharacter motive evidence, subject to later OEC 403 review, and allowed Officer Asheim’s expert testimony on gang rivalry and retaliation. 3
The trial court also admitted gun evidence found in codefendant’s home, including a .40 caliber Glock, Glock box, magazines, and ammunition, as circumstantial evidence that defendant obtained the shooting gun from codefendant’s car. 4
The jury convicted defendant of attempted first-degree assault with a firearm and unlawful use of a firearm, and the Court of Appeals reversed on the gang-evidence ruling but affirmed the gun-evidence ruling. 5
On review, the Supreme Court reversed the Court of Appeals on the gang evidence, affirmed on the gun evidence, and remanded for consideration of remaining assignments of error. 6

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the gang evidence admissible as noncharacter motive evidence? 7	State said gang membership and rivalry explained defendant’s hostility and motive to shoot S.	Herring said the evidence required propensity reasoning about violent character.	Yes; the state’s theory was noncharacter motive evidence. 8
Was the gun evidence from codefendant’s home relevant and not unfairly prejudicial? 9	State said it supported the inference defendant accessed the shooting gun from codefendant’s car.	Herring said the gun evidence was irrelevant and speculative, or at least unduly prejudicial.	Yes; the evidence was relevant and properly admitted under OEC 403. 10

State v. Davis, 372 Or 618 (Or. 2024) (OEC 404(4) applies to a defendant’s other acts in criminal cases 11)
State v. Baughman, 361 Or 386 (Or. 2017) (predicates for OEC 403 discretion and OEC 404 analysis are reviewed as questions of law 12)
State v. Williams, 357 Or 1 (Or. 2015) (other-acts evidence in criminal cases is admissible if relevant and not barred by OEC 403 13)
State v. Cox, 337 Or 477 (Or. 2004) (relevance requires only a slight increase in the probability of a material fact 14)
State v. Naudain, 368 Or 140 (Or. 2021) (relevance is a very low threshold and is reviewed as a question of law 15)
State v. Skillicorn, 367 Or 464 (Or. 2021) (the proponent’s articulated theory of relevance controls the character-reasoning inquiry 16)
State v. Jackson, 368 Or 705 (Or. 2021) (a theory depends on character only when the logical chain requires a character inference 17)
State v. Hampton, 317 Or 251 (Or. 1993) (motive evidence may be a noncharacter basis for relevance 18)
State v. Hedgpeth, 365 Or 724 (Or. 2019) (relevance cannot rest on speculation; reasonable inferences are enough 19)
State v. Turnidge, 359 Or 507 (Or. 2016) (motive often must be proved circumstantially 20)