State v. Stockton

                                      116

  Argued and submitted December 6, 2019; convictions on Counts 1, 4, 5, 7, 9,
 10, 11, and 12 reversed and remanded, remanded for resentencing, otherwise
                           affirmed March 17, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      ERIC LEE STOCKTON,
                         aka Eric Stockton,
                        Defendant-Appellant.
                    Jackson County Circuit Court
                        17CR22703; A165499
                                  

     Defendant appeals his convictions of multiple criminal offenses, stemming
from a series of domestic violence incidents involving a former intimate partner.
Among other things, defendant argues that the trial court erred by admitting
evidence of other charged and uncharged misconduct committed against both
the same intimate partner and other former intimate partners under “hostile motive” and “doctrine of chances” theories of relevance and by accepting
nonunanimous verdicts from the jury. Held: The trial court erred in admitting
the other misconduct evidence. The evidence did not qualify for admission under
the doctrine of chances because it did not arise from a series of uncommon and
similar, claimed accidental events. See State v. Skillicorn, 

, 

 (2021). Nor did the evidence show a common motive (apart from generalized hostility) among the other misconduct and the acts charged in this case
that persisted over a period of time, animating defendant to commit the charged
offenses. Instead, the only inferences that the other misconduct evidence permitted were impermissibly propensity-based. The trial court also erred in admitting
the challenged evidence under OEC 404(4) in light of the state’s narrow reliance
on the doctrine of chances and hostile motive as theories of relevance under that
provision. The erroneous admission of the other misconduct evidence was not
harmless with respect to two convictions based on unanimous verdicts. Finally,
the convictions based on nonunanimous verdicts were erroneous and must be
reversed and remanded.
   Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12 reversed and remanded;
remanded for resentencing; otherwise affirmed.


   Timothy Barnack, Judge.
   Larry R. Roloff argued the cause and filed the brief for
appellant.
   Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
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  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Brewer, Senior Judge.*
    BREWER, S. J.
   Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12 reversed
and remanded; remanded for resentencing; otherwise
affirmed.




______________
   * Brewer, S. J. vice Armstrong, P. J.
118                                                       State v. Stockton

           BREWER, S. J.
         Defendant was convicted by a jury of multiple criminal offenses, including three counts of felony fourth-degree
assault involving domestic violence. ORS 163.160(3).1 The
victim of the charged assaults was defendant’s former intimate partner, T. On appeal, defendant raises six assignments of error in his opening brief and additional assignments of error concerning nonunanimous jury instructions
and verdicts in a supplemental brief. We write primarily
to address defendant’s third assignment of error, which
challenges the trial court’s admission of evidence of other
charged and uncharged misconduct by defendant involving
T and two of defendant’s other former intimate partners. As
elaborated below, we conclude that the trial court erred in
admitting the other misconduct evidence and that the error
was not harmless with respect to defendant’s convictions
for tampering with a witness and second-degree criminal
mischief. We reject the remaining assignments of error in
defendant’s opening brief without discussion.
          In supplemental assignments of error, defendant
argues that the trial court erroneously instructed the jury
that it need not be unanimous, and that was structural error
requiring reversal of all of his convictions, including the
three convictions that were based on unanimous verdicts.
See Ramos v. Louisiana, 

, 

, 

 (2020) (holding that nonunanimous jury verdicts for serious offenses were impermissible under the Sixth
Amendment). The state concedes that defendant is entitled
to reversal and remand on the counts involving nonunanimous verdicts. We agree, accept the concession, and exercise
our discretion to correct the plain error for the reasons set
out in State v. Ulery, 

, 

 (2020). As
for defendant’s structural error challenge to the three convictions based on unanimous verdicts, the Supreme Court

    1
      Defendant’s convictions included, in addition to the three counts of fourth-degree assault (Counts 1, 7, and 11), counts concerning possession of methamphetamine (Count 3), first-degree burglary (Count 4), coercion (Counts 5 and 9),
tampering with a witness (Count 10), and second-degree criminal mischief
(Count 12). The jury’s verdict was unanimous with respect to Counts 3, 10, and
12, but not as to the other convictions. Defendant was acquitted on the remaining
counts.
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rejected a similar challenge in State v. Flores Ramos, 

, 

 (2020). We reject it here, too, without
further discussion.
          Ultimately, we reverse and remand on Counts 1, 4,
5, 7, 9, 10, 11, and 12, and otherwise affirm.2
                            I. BACKGROUND
         The indictment contained charges relating to
numerous incidents, but we limit our discussion to the evidence relating to the events that gave rise to the fourth-degree assault (Counts 1, 7, and 11), tampering with a
witness (Count 10), and second-degree criminal mischief
(Count 12) convictions. Defendant and T were intimate partners for about four years. Their relationship was punctuated
by several reports by T that defendant had committed acts of
domestic violence against her. We summarize the evidence
pertaining to the three incidents that resulted in the abovedescribed convictions in this case as follows:
A.    Hairspray Can Incident (Count 1)
         On December 17, 2014, T was injured when defendant threw a can of hairspray through the open passenger window of her moving car, striking her on the chin.
Defendant did not dispute that he threw the hair spray can
at the car, but his position at trial was that hitting her was
an accident.3 T testified on cross examination that defendant was “surprised” to have hit her, and defendant’s mother

    2
      For two independent reasons, even though they were not based on unanimous verdicts, we decline simply to reverse and remand the fourth-degree assault
convictions based on the United States Supreme Court’s decision in Ramos. First,
the same or similar issues regarding other misconduct evidence under OEC
404(3) are likely to arise again with respect to those counts on remand, so in the
interest of judicial efficiency we address them now. See, e.g., State v. Deloretto, 

, 

 (2008), rev den, 

 (2009) (addressing assignments of error that are likely to arise on remand despite reversing on different
ground); Westwood Construction Co. v. Hallmark Inns, 

, 

, rev den, 

 (2002) (addressing ruling concerning availability of certain type of attorney fees under ORS 87.060 as likely to arise on remand). Second,
as explained below, we conclude that the erroneous admission of the other misconduct evidence was not harmless as to defendant’s convictions on two counts on
which the jury’s verdict was unanimous (Counts 10 and 12), and which would not
otherwise be subject to reversal and remand under Ramos.
    3
      Defendant did not testify at trial, but his counsel took that position in his
defense.
120                                         State v. Stockton

testified that the can struck T by mistake, and they were
both laughing about it.
B.    Motorhome Incident (Count 7)
         On January 29, 2016, T called defendant and asked
him to come to a motorhome where she was staying. After
initially declining, defendant agreed and brought dinner.
T had been using methamphetamine. The owner of the
motorhome, WE, became concerned about T and checked
on her. Defendant held a knife to T’s back and forced her
to assure WE that she was alone and fine. However, WE
was certain that someone else was there, and she called
the police. When deputies arrived, defendant prevented T
from opening the door. Eventually defendant released her.
Deputy Scow noticed a lump on T’s head immediately upon
seeing her. T reported that defendant caused the lump by
throwing her phone at her head. T stated that defendant bit
her and “backhanded” her and that he held his hand over
her mouth to keep her from crying out whenever he believed
someone was approaching the motorhome. While testifying
about the incident, T struggled to recall certain details, but
she appeared to clearly recall the abuse itself.
C. G’s Residence Incident (Counts 10, 11, and 12)
         On February 20, 2016, T and defendant were staying
at the home of G. When T tried to leave, defendant became
angry and trapped her inside, causing an injury to her leg. T
reported to police that defendant took her phone, repeatedly
asked her what she told police regarding an earlier domestic
violence incident, and when T refused to tell him what she
told police, defendant threw her to the floor and kicked her
while telling her to “fix it or you’re not going to have any
family either.” When T managed to escape and attempted to
leave in her friend’s car, defendant jumped on the hood and
broke one of the windows. After riding on the hood down the
driveway, defendant got off and began kicking the car.
         T made two 9-1-1 calls that day, the first as she
was leaving G’s residence. The second call was made from a
friend’s house. During the second call, T refused to tell the
dispatcher where she was because she was at a drug house
and did not want to get her friends arrested.
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         In charging the assault offenses, the state alleged,
in addition to the other elements of fourth-degree assault,
that defendant previously had been convicted at least three
times under ORS 163.160 or equivalent laws of another
jurisdiction for assault. The state further alleged that the
currently-charged assault offenses constituted domestic violence in that “defendant and the alleged victim are persons
who have been involved in a sexually intimate relationship.”
         Defendant’s position at trial was that he did not commit the charged acts, except that, with respect to the hairspray can incident, defendant’s position was that, although
he threw the can, it struck T by mistake. Anticipating those
theories of defense, before trial, the state sought a ruling
that certain evidence of defendant’s other charged and
uncharged misconduct would be admissible at trial under
various theories: to invite nonpropensity inferences of hostile motive and absence of mistake, as well as to invite propensity inferences under OEC 404(4). In total, the state
proffered, and the trial court admitted, evidence of seven
separate incidents of other misconduct by defendant:
         (1) An incident in which defendant had been convicted in 2003 for kidnapping and assaulting a different former intimate partner, S, over a decade before the conduct
charged in this case. Although the state had anticipated
calling her as a witness, S did not testify, and the trial court
admitted a copy of the judgment convicting defendant for
those offenses as evidence of other misconduct.
         (2) An incident on January 2, 2014, in which defendant had been arrested but ultimately not prosecuted for
assaulting, strangling, and harassing another former intimate partner, WI. The court admitted a 9-1-1 recording of
WI’s statement that defendant had beaten her up “really
bad” and choked her in that incident and that she was going
to hide in the bathroom. WI was crying and concerned that
defendant was coming back. The dispatcher told her to stay
in the bathroom.
        (3) An incident on January 16, 2014, in which
defendant had been arrested but ultimately not prosecuted
for assaulting and harassing WI. The trial court admitted a
122                                          State v. Stockton

police officer’s testimony that, in response to a 9-1-1 call, he
had observed a bump on WI’s head following that incident.
         (4) An incident that occurred on August 12, 2015,
in which defendant was arrested but ultimately not prosecuted for assaulting and harassing T. The trial court admitted photographs of a “scratch with a bruise” on her leg that T
suffered in that incident. T testified that defendant “pushed
[her] down,” “kicked [her] down to the ground” and “wasn’t
going to let [her] go” until someone else intervened. T also
described the injury to her leg.
        (5) An incident on September 3, 2015, in which
T called 9-1-1 about defendant’s conduct of forcing a phone
into her mouth, hitting her, and pouring soda on her. In
addition to the 9-1-1 recording, T testified about that incident, recounting that defendant “push[ed]” her “down” and
“poured grape soda” down her “throat so [she] couldn’t
scream.”
         (6) An incident that occurred on September 28,
2015, for which defendant previously had been convicted of
harassment against T. The trial court admitted as other misconduct evidence the record of defendant’s conviction of that
offense, as well as testimony of T that defendant “push[ed]”
her “up against the fence at his residence,” and the testimony of a police officer who observed defendant “holding [T]
by the shoulders and … shoving her into the fence.”
         (7) Two uncharged incidents of assault against T
that occurred in 2015, described in medical records that the
trial court admitted as evidence of other misconduct. One of
the records described T as having been involved in domestic abuse perpetrated by someone who had since been jailed
and who had thrown her against a couch and hit her in the
ribs.
         In admitting the evidence of defendant’s other misconduct, the trial court generally did not distinguish among
the state’s theories of admissibility, but repeated a consistent set of factors on which it relied, namely, that the proffered other misconduct evidence “also requires a culpable
mental state, same victim [as to misconduct involving T],
same or similar acts, and in balancing the evidence, it is
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relevant and the probative value outweighs the risk of unfair
prejudice.” 4
        On appeal, defendant contends that the trial court
erred in concluding that evidence of defendant’s other misconduct was relevant under the proffered theories and that
the court failed to properly conduct the required balancing
of probative value and prejudicial effect under OEC 403.5
                   II. STANDARD OF REVIEW
         We review a trial court’s determination of relevance
under OEC 401 for errors of law. State v. Titus, 

, 

 (1999). We also review a trial court’s
determination that other misconduct evidence is relevant
for nonpropensity or propensity purposes under OEC 404(3)
and OEC 404(4) for legal error. State v. Baughman, 

, 

 (2017); State v. Cave, 

, 

 (2019). If the admission of other misconduct
evidence was erroneous, in determining whether the admission of the evidence was harmless, we “review all pertinent
portions of the record, not just those portions most favorable
to the state.” State v. Maiden, 

, 

(2008), rev den, 

 (2009).
                             III.   ANALYSIS
          The Supreme Court set out some of the governing
principles for our analysis in State v. Tena, 

,

 (2018). In a nutshell, relevant evidence is
admissible under OEC 402, “except as otherwise provided
elsewhere in the Oregon Evidence Code, the state or federal
constitutions, or other applicable laws.” 

. OEC 403
is one such limitation, providing that, “[a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
    4
      The trial court’s narrative appears to have followed certain criteria that
the Supreme Court adopted in State v. Johns, 

, 

 (1986),
pertaining to the admission of other misconduct evidence under the doctrine of
chances. As discussed below, as relevant here, the court recently overruled Johns,
in part, in State v. Skillicorn, 

, 

 (2021).
    5
      Because, as explained below, we agree with defendant that the challenged
evidence was not relevant under any of the theories proffered by the state, we do
not reach defendant’s arguments under OEC 403.
124                                           State v. Stockton

of undue delay or needless presentation of cumulative
evidence.” Another limitation, OEC 404(3), provides that
“[e]vidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show that the
person acted in conformity therewith.” However, that rule
further provides that such evidence is admissible as “proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” OEC 404(3).
Complicating things, OEC 404(4) provides that, in criminal actions, “evidence of other crimes, wrongs or acts by the
defendant is admissible if relevant,” except “as otherwise
provided by specific statutory provisions to the contrary and
by the state or federal constitutions.” Tena, 

.
         “OEC 404(4) has the effect of superseding the part
of OEC 404(3) that declares inadmissible other [misconduct]
evidence offered to prove character; under OEC 404(4), relevant other [misconduct evidence]—even to prove the character of a criminal defendant—is admissible,” unless proscribed by other relevant law. 

; see also State v.
Williams, 

, 

 (2015). Based on the
interplay among those provisions, in Baughman, the court
stated that the admissibility of other misconduct evidence is
determined under the following test:
   “When a party objects to the admission of other acts evidence, a trial court first should determine whether the
   proffered evidence is relevant for one or more nonpropensity purposes, under OEC 404(3). If it is, then the court
   should determine, at step two, whether the probative value
   of that evidence is substantially outweighed by the danger of unfair prejudice under OEC 403. If the trial court
   determines that the evidence is relevant for a nonpropensity purpose under OEC 404(3) and admissible under OEC
   403, then it need not determine whether the evidence also
   is admissible under OEC 404(4) and OEC 403. However, if
   a trial court determines that proffered evidence is not relevant for a nonpropensity purpose, then it must determine
   whether that evidence nevertheless is otherwise relevant
   under OEC 404(4) and, at step two, whether the probative
   value of the evidence is substantially outweighed by the
   danger of unfair prejudice, under OEC 403.”

.
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         With those general principles in mind, we turn
to the other misconduct evidence at issue in this case.
Again, defendant contends that none of the proffered evidence involving the prior incidents was relevant for any of
the asserted purposes. We consider defendant’s arguments
under OEC 404(3) separately as to incidents involving other
misconduct committed against T as distinct from evidence
of misconduct against defendant’s other former intimate
partners. We conclude our analysis with a combined discussion of OEC 404(4) and the issue of harmlessness.
A.   Other Incidents of Misconduct Involving Former Intimate
     Partners
     1. Hostile motive
         In Tena, the Supreme Court considered the admissibility of purported motive evidence in a trial involving
domestic violence charges. The defendant in that case had a
history of abusing intimate partners. 

. Over
the defendant’s objection, the trial court admitted evidence
that the defendant previously had assaulted two other intimate partners as bearing on his “hostile motive” to assault
his current intimate partner. 

. On review, the
Supreme Court reversed. It rejected the state’s “assum[ption]
that, because defendant assaulted two of his prior intimate partners, those assaults were motivated by the fact
that they were his intimate partners.” 

. Although
“those assaults, in theory, could have been motivated by
the fact that the victims were his intimate partners,” the
“evidence indicated that the prior assaults involved other
motives, such as a disagreement about child-care issues, the
victim’s desire to work, and jealousy.” 

 The other acts also
were “relatively isolated and not close in time.” 

         The court further observed that the only connection among the victims in that case was their relationship
with the defendant, and it held that there must be something more. 

. The court distinguished the posited animus in State v. Klamert, 

, 

(1969), where the defendant targeted a police officer because
he was a police officer. Tena, 

. In contrast,
the court in Tena concluded that, because the record there
did not show a common motive among the charged acts and
126                                                       State v. Stockton

the acts against former partners, the trial court erred in
concluding that the other misconduct evidence was relevant
to prove the defendant’s motive for the charged offenses. 

         The record here is similarly deficient with respect
to the relevance of the challenged evidence as to defendant’s
motive in the charged incidents. ORS 163.160 provides, in
part:
       “(1) A person commits the crime of assault in the
    fourth degree if the person:
       “(a) Intentionally, knowingly or recklessly causes
    physical injury to another;
        “…
       “(2) Assault in the fourth degree is a Class A
    misdemeanor.
       “(3) Notwithstanding subsection (2) of this section,
    assault in the fourth degree under subsection (1)(a) … of
    this section is a Class C felony if the person commits the
    crime of assault in the fourth degree and:
        “…
        “(c) The person has at least three previous convictions
    for violating this section or ORS 163.165, 163.175, 163.185,
    163.187 or 163.190 or for committing an equivalent crime
    in another jurisdiction, in any combination[.]”6
        Among other elements, to prove the assault charges
constituting domestic violence against T as alleged in the
indictment, the state was required to prove that defendant
caused harm to T while they were involved in a sexually
intimate relationship. To be relevant to his motive, the
other misconduct evidence had to at least relate to defendant’s mens rea, alleged as reckless, in causing the harm.
However, the state did not proffer any motive for defendant’s
misconduct toward his other former intimate partners.
Nor did the state offer any explanation as to how the acts
involving those intimate partners had any substantial link
    6
      Defendant’s charged assaultive conduct occurred in 2014 and 2016. The
fourth-degree assault statute (ORS 163.160) was amended in 2015 and again in
2017. For the purposes of our analysis, the differences among the various versions of the statute are not material. Accordingly, for convenience we refer to the
present version of the statute.
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to the current charges. Like in Tena, the only link that the
state established was that WI and S were former intimate
partners of defendant and that he had engaged in violence
toward them. That foundation was insufficient. Accordingly,
the trial court erred in admitting the evidence of misconduct involving defendant’s other former intimate partners
to show his motive with respect to the charged offenses
against T.
     2. Doctrine of chances; absence of mistake
        The trial court also admitted the misconduct evidence involving defendant’s other former intimate partners
as relevant to show defendant’s intent under the doctrine of
chances. Defendant asserts that that ruling, too, was erroneous.7 Although in its brief on appeal the state does not
defend the admission of the other intimate partner evidence
on that ground, we nevertheless briefly consider it. Without
undue elaboration, we conclude that the challenged evidence
also was not relevant for that proffered purpose.
         In its motion in limine, the state theorized that the
other misconduct evidence was admissible under the doctrine of chances to prove defendant’s intent with respect to
the hairspray can count, because defendant acknowledged
throwing the can at T, but claimed that it struck her by mistake. The problem with that theory is that it is based on a
misconception of the “doctrine of chances.” As the Supreme
Court recently held, overruling in part State v. Johns, 

, 

 (1986), “evidence of uncharged misconduct [cannot] be admitted under the doctrine of chances for
the purpose of arguing that, because the defendant engaged
in deliberate conduct before, it is likely that he engaged in it
again during the charged incident.” State v. Skillicorn, 

, 

 (2021). The reason is that using
evidence of prior deliberate misconduct to show an absence

    7
      The parties square off over whether defendant’s intent was relevant in this
case, where the indictment alleged that he acted recklessly in committing the
assaults. However, the state is correct that it was entitled to prove a reckless
mental state by showing that defendant acted intentionally. See ORS 161.115(3)
(“When recklessness suffices to establish a culpable mental state, it is also established if a person acts intentionally or knowingly.”). Thus, although the state did
not need to prove intent, it nevertheless could have attempted to prove that defendant acted intentionally to satisfy the mens rea element of the charged offenses.
128                                                       State v. Stockton

of mistake in a currently charged offense would violate OEC
404(3)’s prohibition on the use of other misconduct evidence
to show a defendant’s propensity to engage in intentional
criminal conduct. 

.
          In Skillicorn, the Supreme Court confined the application of the doctrine of chances to situations where the
“theory of relevance [is] based on the objective improbability
of the recurrence of uncommon events.” 

. Because
of that rationale, “there are two foundational requirements
for the doctrine’s use: similarity and unusual frequency.”

. As far as similarity is concerned, the fact that
other misconduct—as a general category—has occurred is
insufficient. Where, as here, a claim is made that conduct
was accidental, to be relevant contradictory evidence under
the doctrine of chances, the proffered conduct must be part
of a series of similar events claimed to have the same uncommon accidental cause as the charged acts, so as to support
an inference that not all of the events actually had that
cause. 

.8 With respect to the frequency requirement, “the number of events in the series must exceed the
number of events that could reasonably be expected to share
the uncommon cause,” and the number “has to be sufficient
to establish a fortuitous coincidence that is too abnormal or
bizarre to be believed.” 

 (quotation marks omitted).
         Here, the state’s theory of relevance was, in effect,
that, because defendant had intentionally assaulted intimate partners in the past, it could be inferred that he acted
with at least a reckless mental state in assaulting T in the
charged incidents. In support of that theory, the state simply proffered a certified copy of a 2003 conviction involving
one of the former intimate partners, S, as the state closed its
case-in-chief, and the state adduced no evidence concerning
what happened to the other former partner, WI, beyond the
fact that she had incurred a head injury. The only evidence
    8
      The court gave the following example:
    “So, for example, if a party asserts that all the events in a series of similar
    events were accidents, an opponent might rely on the doctrine of chances to
    argue that the number of events exceeds the number of accidents that the
    party was likely to suffer, and the factfinder should therefore infer that not
    all the events were accidents.”
Skillicorn, 

.
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of similarity among the various incidents was that S and
WI, like T, were intimate partners of defendant and that
he had been violent with them. The evidence did not show
that defendant’s acts involving S and WI were claimed to be
accidental, much less that they were part of a series of similar, uncommon events so as to establish a “fortuitous coincidence” that is too “abnormal” or “bizarre” to be believed.

 Accordingly, the challenged evidence was impermissibly
propensity based; it was not relevant under the doctrine of
chances.9
B.   Other Incidents of Misconduct Involving T
     1. Hostile motive
         Although the state proffered multiple theories of
relevance for the admission of evidence of other misconduct
by defendant toward T, its primary argument to the jury
was that the evidence showed that defendant had a hostile
motive toward T. On appeal, defendant reiterates his argument before the trial court that the evidence was not relevant for that purpose. The state counters that each of the
other incidents of misconduct involving T showed personal
animus, and each allegedly was committed within a few
months of the charged assaults. According to the state, that
foundation was sufficient to permit the jury to infer that
defendant continued to harbor ill will against T when the
charged incidents occurred, thus making it more probable
that he committed the charged acts.
         We recently addressed similar arguments in State
v. Morrow, 

, 

 (2019). In Morrow,
the defendant was convicted of felony fourth-degree assault,
ORS 163.160(3), and harassment, ORS 166.065(3), in connection with an incident involving his intimate partner.
Id. at 33. On appeal, the defendant asserted that the trial
court erred by admitting evidence of prior uncharged acts
    9
      The court in Skillicorn acknowledged that, even if properly cabined, the
doctrine of chances is the “subject of debate,” and that it has been criticized as
a mask for the admission of propensity evidence. 367 Or at 484 n 5. Carefully
read, we do not understand the court’s opinion to fully endorse the doctrine as
a nonpropensity theory of relevance. Rather, the court appears to have assumed
arguendo that it might be, based on similar assumptions by the parties and the
views of a leading commentator, Professor Edward Imwinkelreid. Id.
130                                             State v. Stockton

of domestic violence against the same victim. Id. As in this
case, the trial court admitted that evidence under OEC
404(3) for the purpose of showing the defendant’s motive for
the charged acts. Id.
        On appeal, the defendant contended that the other
misconduct evidence was not relevant to his motive and,
instead, was improper propensity evidence. We agreed with
the defendant that the evidence should not have been admitted as motive evidence under OEC 404(3) and that the error
was not harmless. Id.
         As pertinent here, we stated:
   “Given how difficult it sometimes is to distinguish between
   motive and character evidence, it can be helpful to keep
   in mind some general principles. One is that permissible,
   motive-based reasoning usually ‘assume[s] that a motive
   might exist because any person might possess one under
   those specific circumstances’—that is, ‘[t]he tendency to
   have such a motive is simply human’—whereas character-based reasoning derives ‘from a trait of character specific
   to the person involved in the trial’ and is ‘based on inferred
   behavioral disposition or propensities.’ … ‘When the
   asserted connection between the charged offense and the
   other-acts evidence would be merely conjectural without
   resort to character-based inferences, such evidence is not
   admissible as noncharacter motive evidence.’ … The specificity of an alleged motive also may be telling. Although
   there are exceptions—the most notable one being hate
   crimes—motive inferences tend to be specific to the circumstances and the individual victim, whereas character
   inferences tend to be more generalized. … ‘Typically, the
   more generalized the motive inference, the more like character it becomes.’ … ‘The motive theory should not apply
   … when the “motive” is so common that the reasoning
   that establishes relevancy verges on ordinary propensity
   reasoning or when “motive” or “intent” is just another word
   for propensity.’ ”
Id. at 43-44 (internal citations and footnote omitted; brackets in Morrow).
        In Morrow, we acknowledged that the other misconduct evidence at issue there involved the same victim and
that the conduct was similar, but we concluded that those
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factors were insufficient to satisfy the relevance standard
for motive with respect to the offenses charged in that
case. Id. at 45. We said, “motive pertains to why defendant
assaulted [the victim], not to the similarity of the assaults
themselves.” Id. (rejecting, as the Supreme Court had in
Tena, the argument that similarity of assaultive episodes
reflected a common motive linking the assaults). We noted
that the evidence was that
      “any number of things, coupled with intoxication, triggered
      defendant’s violence. Of the three instances presented to
      the jury, for example, there is no evidence as to the impetus
      for the Rainbow Motel incident, the Motel 6 incident began
      when defendant accused [victim] of sexual infidelity, and
      the charged acts began when [victim] questioned defendant
      about his recent several-hour absence.”
Id.
         The state remonstrated, as it does here, that the
prior acts showed the defendant’s general “hostility” toward
the victim. We rejected that argument:
          “The difficulty with the state’s generalized hostility
      argument is that it seems to depend on an assumption that
      anyone who assaults someone repeatedly must be generally
      hostile toward them, rather than rely on the specific record
      before the court in this case. Although repeated instances
      of hostile interactions between two people may give rise
      to a permissible inference of generalized hostility in some
      circumstances, it will depend on the record, and domestic
      violence situations are especially complicated. Here, defendant and [victim] were living together and had been in
      an intimate relationship for over a year at the time of the
      charged acts. There was no evidence of significant animosity between them except for the domestic violence incidents.
      In our view, the existence of domestic violence in an intimate relationship is not enough, in and of itself, to allow an
      inference of ‘generalized hostility’ as a common motive for
      all acts of violence over an extended period of time.”
Id. at 46.
        In reaching that conclusion, we distinguished a
case on which the state relies here, State v. Hagner, 

, 

, rev den, 

 (2017). In Hagner,
132                                           State v. Stockton

the defendant claimed to have accidentally shot his wife.

. We affirmed the admission of evidence that the
defendant had slapped his wife seven days before he shot
her and yelled at her four days before he shot her, because
that evidence “tended to show that defendant had a hostile relationship with the victim in the week immediately
preceding the shooting” and “a jury could find that he had
been motivated by the same animosity when he fired the
fatal shot.” 

. The temporal connection between
the two hostile acts would allow a jury to “find [that] that
same animosity motivated defendant” to commit both acts,
because it would allow the jury to infer that defendant’s
hostility toward the victim “persisted until the time of the
shooting and also motivated that crime.” 

. The
mere fact that the two acts involved the same victim was
not dispositive. Rather, it was the very short timeframe
involved that allowed the inference of a common motive
that persisted for the entire week leading up to the victim’s
murder.
        By contrast, in Morrow we reasoned that
   “the other-acts evidence offers no possible explanation
   as to why defendant started an altercation with [victim]
   on October 13, when she questioned where he had been.
   It shows only that defendant has a propensity to drink
   alcohol to excess, get upset with [victim], demand that she
   leave, and then verbally and physically assault her. That is
   character evidence that, on this record, lacks any relevance
   to defendant’s motive for allegedly committing the charged
   crimes on October 13.”

299 Or App at 49. We further concluded that, even if we
considered a narrower possible motive for the charged
crimes—that the defendant assaulted the victim on
October 13 because he believed that she was trespassing and
was trying to get her out of the room—the other-acts evidence would not be relevant to that motive. Id. Importantly
for present purposes, we stated:
   “A similar motive for two acts is not the same as a common motive. See Leonard, The New Wigmore § 8.3 at 499
   (explaining the important distinction between a ‘common’
   motive for multiple acts and ‘similar’ motives for multiple
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   acts). To establish a common motive of trying to get [victim]
   out of the room, it would have to be reasonable to infer that
   defendant had been trying to get [victim] out of the room
   for weeks or months and had repeatedly assaulted her to
   achieve that singular purpose. That is not a reasonable
   inference on this record. Unlike the situation[ ] in [Hagner],
   the prior-acts evidence here does not allow an inference of
   a common motive, i.e., a single motive that persisted over
   a period of time and motivated multiple acts of violence
   during that time.”

 (emphases in original).
         To be relevant to motive, we held, the challenged
evidence had to offer an explanation as to why the “defendant allegedly assaulted, strangled, and harassed [victim]
on October 13.” Id. at 50. It did not do that, we explained,
“beyond suggesting that defendant did so because that is
what he always does when he gets intoxicated, becomes
upset, and [victim] refuses to leave.” Id. In short, the challenged evidence was not relevant to motive and, instead,
simply invited the jury to think, “once an abuser, always an
abuser.” Id.
         Similarly, in the present case, the state’s motive
theory of relevance was one of generalized hostility that
persisted throughout the course of defendant’s relationship
with T. According to the state, when other misconduct is
“directed at the same victim as alleged in the charged conduct, [an] intermediate inference is unnecessary—evidence
of a defendant’s hostile acts towards a particular victim
readily and logically support[s] inferring that the defendant
continued to harbor that hostile intent at the time of the
charged conduct.” Consistent with that rationale, the state
has offered no explanation for how any of the prior incidents
involving T established a common motive that persisted
over a period of time and spurred defendant to commit multiple acts of violence against T during that period. In the
absence of such a foundation, the only inference that the
other misconduct evidence involving T permitted was that
defendant acted consistently with a blemished character in
repeatedly assaulting her. It follows that the challenged evidence was not relevant to prove defendant’s motive for the
conduct charged in this case.
134                                           State v. Stockton

      2. Doctrine of chances; absence of mistake
         Our analysis here largely mirrors our consideration
of the other misconduct evidence involving defendant’s other
former intimate partners. With respect to the other misconduct evidence involving T, the state argues:
   “Here, the doctrine of chances was available to prove defendant’s intent as to one of the charged acts—throwing a can
   of hairspray at the victim, which the state argued as the
   basis for count one in this case.”
(Emphasis added.) Although it purported to follow Johns,
the state’s theory is at odds with the holding in Skillicorn
that evidence of prior intentional misconduct cannot be
admitted to prove that a defendant acted intentionally in
committing a currently charged offense. Skillicorn, 

. There was no evidence that defendant’s other conduct involving T was similar to defendant’s conduct in the
hairspray can incident. Nor, of necessity, did the challenged
evidence comprise a series of similar, uncommon events
sufficient to establish a “fortuitous coincidence” that is too
“abnormal” or “bizarre” to be believed. 

. Therefore,
the other acts evidence involving T was not relevant under
the doctrine of chances.
C. Propensity Evidence Under OEC 404(4)
         Once a court determines that evidence of other misconduct is not probative for a nonpropensity purpose under
OEC 404(3), it may consider whether the evidence nevertheless is admissible under OEC 404(4). To be admissible
under OEC 404(4) to prove defendant’s character in order
to show that he acted in conformity therewith, the proffered
other misconduct evidence had to be relevant to an issue in
this case. See Williams, 

 (holding that “OEC
404(4) makes ‘other acts’ evidence admissible if it is relevant
under OEC 401 and admissible under OEC 403”); see also
Baughman, 

 (stating that “OEC 404(4) preserves ‘traditional standards of relevancy’ ” (quoting State v.
Moore/Coen, 

, 

 (2010))).
         Under Williams, propensity evidence needs only
to be relevant in the broad sense of OEC 401, not relevant
for one of the specific purposes in OEC 404(3), but the state
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has identified no basis for relevance in this case other than
hostile motive and the doctrine of chances. For the reasons
already discussed, the other misconduct evidence here was
not relevant under those theories. Because the state relies
solely on the theories of motive and the doctrine of chances
in support of its argument that the challenged evidence was
relevant under OEC 404(4), our rejection of those theories
of relevance is a sufficient answer to the state’s reliance on
OEC 404(4).10
D. Harmless Error
         In light of the nonunanimous verdicts on the assault
charges (Counts 1, 7, and 11), it is necessary under Ramos to
reverse defendant’s convictions on those counts and remand
them to the trial court. We therefore do not consider the
issue of harmlessness with respect to the convictions on
those counts. As noted, however, the verdicts were unanimous on three additional counts: possession of methamphetamine (Count 3), tampering with a witness (Count 10), and
criminal mischief (Count 12). Accordingly, we must consider
whether the error in admitting the other misconduct evidence was harmless with respect to the convictions on those
counts.
         “As a matter of constitutional provision, statute,
and rule, we may not reverse a judgment based on the erroneous admission of evidence if the error did not substantially affect defendant’s rights, i.e., was harmless.” State v.
Carrillo, 

, 

, rev den, 

 (2020). An error is harmless if there is little likelihood
that it affected the verdict. State v. Davis, 

, 

 (2003). In Williams, the Supreme Court noted that
evidence of a defendant’s other misconduct, particularly
when it lacks legitimate probative value in the context of the
case, presents a substantial “risk that the jury may conclude
improperly that the defendant had acted in accordance with
past acts on the occasion of the charged crime.” 

.
As the trial in this case played out, that risk was palpable.
    10
       In State v. Turnidge (S059155), 

, 

 (2016), the
Supreme Court observed that, in Williams, it had “reserved” the question of “the
extent to which prior bad acts evidence can be admitted solely for propensity
purposes in criminal cases other than ones involving child sexual abuse.” That
question remains unresolved.
136                                                         State v. Stockton

         Defendant stipulated to his convictions for the
prior offenses (including the convictions involving S and T)
that, under ORS 163.160, would convert any fourth-degree
assault convictions in this case into felonies. Thus, evidence
of those convictions would not have been presented to the
jury unless the convictions were admissible as evidence of
other misconduct.11 As we have previously determined, the
evidence of defendant’s other misconduct, including those
convictions, was not relevant on the grounds asserted by
the state. Moreover, the state used the evidence to argue
that defendant should be held accountable, in part, because
he had evaded criminal responsibility for past violent acts
toward intimate partners. Except for the conviction in 2003
for assaulting S and the conviction in 2015 involving T, the
prosecutor told the jury in closing arguments, defendant
had been “let off the hook every single time.”
         As the Supreme Court stated in addressing the
state’s harmless error argument in Skillicorn:
    “[T]he state used [the other misconduct evidence] as propensity evidence, encouraging the jury to decide the case
    based on impermissible character-based reasoning. Such
    reasoning carries a risk of causing the verdict to be based
    on unfair prejudice, and here, the prosecutor highlighted
    defendant’s past driving, noting that he had not taken
    responsibility for it and that he posed a danger to children
    in the neighborhood. Propensity evidence also carries a
    risk of causing the verdict to be based on an overestimation
    of the probative value of the evidence.”
367 Or at 494.
         The convictions on Counts 10 and 12 involved additional and related conduct in the February 20, 2016, incident
    11
       In State v. Hess, 

, 

 (2007), the Supreme Court
held that, assuming arguendo that the prior conviction requirement in ORS
163.465(2)(b) (public indecency) was an “element” of the crime that the state must
prove to a jury, a defendant’s judicial admission of a prior conviction established
the fact of the prior conviction conclusively and relieved the state of its burden
to prove that element of the crime. It concluded, therefore, that unless the state
demonstrated that the fact of the admission constituted otherwise relevant
evidence, the evidence of the prior conviction should have been excluded. 

. In State v. Brostrom, 

, 

 (2007), rev den,

 (2008), we held that the reasoning of Hess likewise applied to a defendant’s stipulation to the existence of prior convictions in a prosecution for fourth-degree assault under ORS 163.160.
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for which defendant was convicted of fourth-degree assault
(Count 11). The underlying acts included a threat against
T to find out what she had told police about an earlier incident involving domestic violence (Count 10), and an act of
criminal mischief involving the car T was driving as she
made her escape from defendant’s attack (Count 12). In his
closing argument, the prosecutor did not distinguish among
those acts and the assaults in reminding the jury that
defendant had not been held accountable for his past violent
acts. Because we cannot say there was little likelihood that
the erroneous admission of the other misconduct evidence
affected the verdicts on Counts 10 and 12, we conclude that
the error was not harmless with respect to the convictions
on those counts.
          The state does argue that the error was harmless
with respect to the possession of methamphetamine conviction (Count 3), which involved an incident in 2015 where
defendant also was charged with assaulting T (Count 2), but
the jury acquitted him of the latter charge. Defendant has
developed no argument as to how the erroneous admission
of the other misconduct evidence would constitute harmful
error with respect to the drug conviction. See State v. Lotches,

, 

 (2000), cert den, 

(2001) (“A defendant in a criminal case assigning error to
the exclusion or admission of evidence must establish that
the error was not harmless.”); see also State v. Nguyen, 

, 

 (2018) (“[D]efendant has the
burden to demonstrate that the error affected a substantial
right.”). Accordingly, we affirm the conviction on Count 3.
         Finally, as discussed above, see 310 Or App at 118
n 1, in addition to the assault convictions, several of defendant’s other convictions (burglary (Count 4) and two counts
of coercion (Counts 5 and 9)) must be reversed in light of the
conceded errors in the nonunanimous verdicts.
         Convictions on Counts 1, 4, 5, 7, 9, 10, 11, and 12
reversed and remanded; remanded for resentencing; otherwise affirmed.