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 evidenсe 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.
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, whiсh 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 chаracter 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
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.
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 Estеs'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 cоnduct. 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
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
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 ,
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 specifiс instances of violent conduct, as well as to the exclusion of testimony from another witness, Renno, that Estes had tried to poke her with a pitchfork.
In response, the state argues that the Vaughn evidence was highly probative of the point for which it was admitted and, therefore, relevant. The state argues that defendant did not preserve his argument regarding the adequacy of the record under Mayfield and that the court otherwise did not abuse its discretion by admitting the evidenсe.
Addressing the character evidence, the state argues, among other things, that defendant did not preserve his argument that he was not required to establish a foundation for the admission of the reputation and opinion-of-character evidence and, in fact, invited any error by acknowledging that he had to establish a foundation for the evidence. The state further argues that defendant's argument fails on the merits.
Regarding the evidence of specific instances of conduct, the state argues that the trial court correctly concluded that evidence of the audio recording was not relevant and also correctly excluded the pitchfork evidence, because, in the state's view, defendant did not offer that evidence for any reason other than to establish a foundation for Renno's proposed opinion testimony about Estes's character, and because defendant failed to offеr evidence that would allow a finding that defendant knew about the pitchfork incident, making it irrelevant to defendant's claim of self-defense under our case law.
The state also argues that any error in excluding any of the evidence was harmless because the trial court admitted ample evidence showing Estes's character for violence and aggression, including evidence that, a month before defendant shot Estes, Estes had violently attacked
A. Vaughn Evidence
We begin with defendant's challenge to the trial court's denial of his motion in limine to exclude the evidence regarding the Vaughn shooting. Defendant's arguments implicate several different standards of review. We review a trial court's determination of relevance under OEC 401 for legal error. State v. Titus ,
Starting with relevance, the trial court was correct to conclude that the evidence was relevant for the purpose for which it was offered. Defendant's mental state at the time of the shooting was a central issue at trial and the fact that defendant had previously made threatening statements about killing Estes was probative on that point. However, because defendant's statements articulated that threat in terms of what defendant had done to Vaughn, the fact that defendant had killed Vaughn, which otherwise
As to whether the trial court made a sufficient record of its OEC 403 balancing,
Under that standard, we conclude that the trial court's record of its ruling satisfies the requirements of Mayfield and demonstrates that the court complied with Mayfield 's framework. In explaining its ruling, the trial court identified the limited purpose for which the evidence was relevant, and also articulated purposes for which the
Finally, we conclude thаt the trial court did not abuse its discretion when it concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Under the circumstances of this case, the evidence was highly probative of defendant's mental state and, although it also carried a high risk of prejudice, the trial court's decision on the matter was well within the range of permissible discretionary choices.
B. Character Evidence
We next address defendant's arguments that the trial court erred by excluding proffered character evidence, addressing defendant's distinct arguments with respect to the different types of evidence.
1. Reputation and opinion-of-character evidence
The bulk of the evidence implicated by defendant's assignments of error consists of character evidence in the form of reputation and opinion-of-character testimony. Defendant acknowledges that the trial court excluded that evidence based on its conclusion that defendant failed to establish a proper foundation for that testimony, and argues
As the state points out, defendant did not argue below that the foundational requirements for reputation or opinion-of-character evidence vary depending on the purpоse for which such evidence is offered, and did not argue, as he does now, that different foundational requirements apply when reputation or opinion-of-character evidence is offered for the purpose of demonstrating the reasonableness of a defendant's beliefs in connection with a claim of self-defense. For that reason, we reject as unpreserved defendant's argument that the trial court erred by excluding the evidence оn the ground that it did not meet the foundational prerequisites for its admission.
2. Audio recording
Defendant next contends that the trial court erred in excluding the audiotape recording of the conversation, of which defendant was a part, in which Estes's conduct of possession and discharging a firearm were discussed. The court excluded that evidence based on its conclusion that the evidence would not be relevant unless defendant testified that the incidents reflected on the recording were on defendant's mind at the time of the shooting. On appeal, the state does not appear to defend the court's reasoning.
We conclude that the trial court erred in determining that the evidence was not relevant. At a minimum, the evidence tended to show that defendаnt knew that Estes reportedly carried a pistol and was known to fire his gun indiscriminately. Because those facts tend to show that a reasonable person might believe Estes to be armed, they would be at least marginally probative on the reasonableness of defendant's choice to use a gun to respond to a perceived threat of violence by Estes.
We nonetheless conclude that the error was harmless. Although relevant, the speculative nature of the evidence, and its lack of detail regarding the incidents in question, make its probative value low. Additionally, as noted, the court admitted evidence that was much more probative as to the reasonableness of defendant's belief of the need to respond to Estes with force, namely, Estes's recent and brutal assault of defendant. Under those circumstances, there is little likelihood that the exclusion of the audio recording affected the jury's verdict. State v. Davis ,
3. Other specific instances of conduct
Finally, defendant also argues that the trial court erred in excluding evidence of other specific instances of Estes's conduct offered through testimony of two witnesses: Richter and Renno. But defendant has presented no developed argument regarding Richter's testimony, and, for that reason, we reject defendant's assertion that the trial court erred by excluding that testimony. As to Renno's testimony, defendant argues that the trial court erred in excluding
Affirmed.
Notes
The court ultimately did provide a limiting instruction, explaining the restrictions оn the jury's use of the evidence related to the Vaughn shooting.
We note that some of defendant's arguments regarding the risk of prejudice presented by the evidence rely on facts developed at trial, and which were not before the court when it ruled pretrial. As defendant's assignment of error challenges the court's pretrial ruling, we consider only those facts that were before the court at that time, consistent with the Supreme Court's directive in Beauvais .
As noted earlier, the state contends that defendant did not preserve this argument. We reject that argument. As we have explained, under State v. Anderson ,
As defendant notes, the trial court's reasoning is problematic because it suggests, potentially, that a defendant would be required to give up the constitutional right not to testify against himself in order to raise self-defense. We have never held that a defendant must testify to raise the issue of self-defense, and we are aware of no source of law precluding a defendant from developing a theory of self-defense through circumstantial evidence.
ORS 161.209 sets forth the elements of the defense of self-defense. Among other things, it requires that a defendant reasonably believe that the degree of force employed in a particular circumstance is necessary. The statute provides:
"Except as provided in ORS 161.215 and 161.219, a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose."