State v. Herring, 545 P.3d 143

Defendant, Ervan Ronell Herring, was convicted in Multnomah County Circuit Court of attempted first-degree assault with a firearm, unlawful use of a weapon with a firearm, and felon in possession of a firearm related to a daytime shooting outside a Portland hospital.
The prosecution introduced extensive evidence of defendant’s gang affiliation as relevant to motive, specifically his membership in the Woodlawn Park Bloods, a violent rivalry with the Crips, and the gang culture of retaliation and violence.
Much of the evidence used to tie Herring to the shooting was circumstantial (e.g., surveillance footage, eyewitnesses who could not identify the shooter, physical evidence linking guns and vehicles, and expert testimony about gang practices).
On appeal, Herring challenged the admissibility of the gang evidence, among other errors, arguing it was impermissible character (propensity) evidence under Oregon Evidence Code 404(3), and was unduly prejudicial.
The Court of Appeals agreed with Herring, finding the State’s theory of relevance for gang affiliation required propensity reasoning barred by OEC 404(3) and held the error was not harmless, warranting reversal and remand for a new trial.
The court also addressed the admissibility of evidence found in the codefendant’s house, but found no error in its admission due to its relevance and minimal prejudice to defendant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of gang evidence under OEC 404(3) to prove motive	Gang affiliation and rivalry are relevant to explain defendant’s motive for the shooting (hostile motive theory)	Admission of general gang evidence is inadmissible propensity evidence and prejudicial; evidence of victim killing defendant's brother was sufficient for motive	The trial court erred; the State’s theory required impermissible propensity-based reasoning under OEC 404(3)
Admission of gun evidence from codefendant’s house	Gun-related evidence links defendant to shooting, even though found months later in codefendant's possession	Gun and related items too attenuated from the shooting; any link is speculative and evidence is more prejudicial than probative	Evidence was relevant; the minimal prejudice did not outweigh its probative value

State v. Skillicorn, 367 Or 464 (Or. 2021) (uncovers bar on propensity-based reasoning for uncharged misconduct evidence under OEC 404(3))
State v. Jackson, 368 Or 705 (Or. 2021) (clarifies how evidence of character/propensity is treated under OEC 404(3))
State v. Haugen, 274 Or App 127 (Or. Ct. App. 2015) (discusses admissibility of gang membership as motive vs. impermissible propensity reasoning)
State v. Moen, 309 Or 45 (Or. 1990) (gang hostility as basis for hostile motive theory)
State v. Tena, 362 Or 514 (Or. 2018) (scope of motive evidence and class hostility)