State v. Burda

                                  661

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Argued and submitted May 11; reversed in part and remanded, otherwise
    affirmed September 8; petition for review denied December 29, 2022
                               (

)


                    STATE OF OREGON,
                      Plaintiff-Appellant,
                                v.
                  DANIEL JAMES BURDA,
                    Defendant-Respondent.
                 Jackson County Circuit Court
                     19CR44452; A174410

  Lorenzo A. Mejia, Judge.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Neil F. Byl, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Reversed in part and remanded; otherwise affirmed.
662                                            State v. Burda

        KAMINS, J.
         Defendant was charged with one count of seconddegree manslaughter, ORS 163.125, one count of criminally
negligent homicide, ORS 163.145, one count of first-degree
criminal mistreatment, ORS 163.205, one count of seconddegree abuse of a corpse, ORS 166.085, one count of fraudulent use of a credit card, ORS 165.055, one count of seconddegree theft, ORS 164.045, and seven counts of aggravated
identity theft, ORS 165.803. The state appeals a pretrial
order excluding certain categories of evidence, raising six
assignments of error. In sum, we conclude that the trial
court correctly excluded evidence of defendant’s drug use
and statements unrelated to defendant’s refusal to leave the
victim’s home but erred in excluding evidence relevant to
defendant’s motive. Therefore, we reverse the order in part,
remand, and otherwise affirm.
         The victim, who was “advanced in age,” was found
dead in his home, buried under an “extremely large” pile
of clothing (weighing approximately 100 pounds, according to the state). The state’s theory of the case is, in short,
that when the victim attempted to evict defendant, defendant either “pushed [the victim] down to leave him to die,
and then ultimately covered up the body with 100 pounds of
clothes, or there was some kind of a struggle that led to his
death.” After the victim’s death, defendant continued to live
in the victim’s home and made statements to police suggesting that he believed he would inherit the home.
         Although evidence indicated that the victim died on
or about July 15, 2018, the victim’s body was not found until
April 4, 2019. Due to the condition of the body, the state
was unable to determine a cause of death. No witness was
present when the victim allegedly tried to evict defendant
on July 15, 2018, or when defendant allegedly caused the
victim’s death.
         Prior to defendant’s trial, defendant filed two
motions in limine. First, defendant moved to exclude evidence of prior acts “attributable to defendant which are not
plead in the indictment.” In response, the state argued that
the prior-acts evidence it would seek to introduce was relevant for nonpropensity purposes under OEC 404(3). Second,
Nonprecedential Memo Op: 

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defendant moved to exclude evidence of an “interrogation
of Defendant conducted by Brian Strickland,” a polygraph
examiner. In response, the state argued, in relevant part,
that “[d]efendant’s statements regarding the charged conduct [during the Strickland interview] are clearly relevant
and admissible under OEC 401 and OEC 402.”
         The trial court held a hearing regarding the
motions, received evidence, and heard arguments from the
parties. The court ultimately entered an order excluding the
following categories of evidence:
   “1. Statements and evidence regarding Defendant’s drug
   use …; except for impeachment should Defendant testify,
   “2. Statements regarding prior verbal and physical conflicts (arguments) between Defendant and [the victim] …;
   “3. [The victim’s] call to 9-1-1 regarding eviction of
   Defendant …;
   “4. Statements and evidence regarding attempts to evict
   Defendant …;
   “5. Statements regarding Defendant’s history of and circumstances related to housing, homelessness, and loss of
   housing (evictions) …;
   “6. Evidence regarding Defendant’s prior behaviors
   as testified to by Jim Willeford and Mr. Kirk Peterson,
   Defendant’s alleged ‘escalation’ in behavior following 2017,
   and any statements or evidence related thereto …;
   “7. All evidence regarding Defendant’s homosexuality
   …; and
   “8. The interview of Defendant conducted by Brian
   Strickland ….”
          On appeal, in its first five assignments of error, the
state challenges the trial court’s exclusion of evidence of the
following: (1) defendant’s housing difficulties and experiences
with homelessness; (2) the victim’s call to 9-1-1 requesting
assistance with defendant’s removal from the victim’s property; (3) defendant’s confrontations with the victim prior to
the victim’s disappearance; and (4) defendant’s drug use. In
a combined argument, the state contends that that “evidence
was relevant for nonpropensity purposes under OEC 404(3),
664                                             State v. Burda

to prove defendant’s motive, identity, and mental state.” In
its sixth assignment of error, the state contends that “the
trial court erred in excluding defendant’s interview[ ] with
Strickland on the basis that [it was] not relevant.”
         “We review a trial court’s determination that evidence is relevant for legal error, in light of the record that
was before the court at the time it made its decision.” State v.
Davis, 

, 

 (2018) (internal
citation and quotation marks omitted). And “[w]e review a
trial court’s determination of whether other acts evidence is
relevant for a nonpropensity purpose under OEC 404(3) for
errors of law.” State v. Tinoco-Camarena, 

, 

, rev den, 

 (2021).
        Defendant’s drug use. In the trial court, the state
argued evidence that defendant was a frequent user of methamphetamine, and that methamphetamine use affected
his behavior, was relevant to defendant’s “state of mind”
during the events in question, was not propensity evidence,
and was therefore not rendered inadmissible by operation
of OEC 404(3). Defendant contended that the state’s proffered theory of relevance was based on improper propensity
reasoning.
         The trial court’s apparent determination to exclude
evidence of defendant’s drug use under OEC 404(3) was not
error. At its core, the state’s theory of relevance was that,
because defendant used methamphetamine and acted erratically on some occasions, he was likely acting erratically due
to drug use at the time of the charged conduct. Without some
additional connecting link between defendant’s use of methamphetamine and the charged offenses, we conclude that
the state’s theory relied on propensity reasoning. See State
v. Skillicorn, 

, 

 (2021) (“OEC
404(3) prohibits the admission of uncharged misconduct evidence for the purpose of arguing that a person has a propensity to commit certain acts, and therefore, it is more likely
that the person committed such an act during the incident
at issue.”).
         Defendant’s confrontations with the victim before
the victim’s disappearance and the victim’s 9-1-1 call. In the
trial court, the state argued that evidence of defendant’s
Nonprecedential Memo Op: 

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confrontations with the victim before the victim’s disappearance, as observed by the victim’s neighbors, which included
occasions where the victim expressed or demonstrated that
defendant was not welcome at the victim’s house, was relevant to defendant’s motive—i.e., that defendant wanted to
stay in the victim’s house when the victim wanted defendant
out of the house—and that that evidence therefore was not
rendered inadmissible by operation of OEC 404(3). The state
also argued that evidence of a 9-1-1 call made by the victim
on July 11, 2018, seeking help evicting defendant, was relevant for the same reason. And the state argued that evidence of a conversation between the victim and the victim’s
friend on the morning of July 15, 2018, where the victim
told his friend that the victim had tried to evict defendant
and defendant pushed the victim to the ground and hit the
victim, was relevant for the same reason.
         The trial court ruled that the evidence of the neighbors’ observations of conflicts between defendant and the victim was “too remote in time” to be relevant and that the 9-1-1
call was not “probative of anything in dispute.” Consistent
with those rulings, the trial court excluded “[s]tatements
regarding prior verbal and physical conflicts (arguments)
between Defendant and [the victim],” the victim’s “call to
9-1-1 regarding eviction of Defendant,” and “statements and
evidence regarding attempts to evict Defendant.”
         On appeal, the state contends that the evidence of
defendant’s confrontations with the victim before the victim’s disappearance and the victim’s 9-1-1 call was relevant
and admissible as nonpropensity evidence, both because it
supplied defendant’s motive in causing the death of the victim and because it evinced that defendant acted with the
same motive during those events as when he caused the
death of the victim. See Tinoco-Camarena, 

 (“There are different types of motive evidence. One
type of motive evidence includes instances where the other-acts evidence directly supplies the motive for the charged
crime, amounting to a cause-and-effect relationship. …
Another type of motive evidence occurs when the other-acts
and the charged crime are both explainable as a result of the
same motive.” (Internal citation and quotation marks omitted.)). Defendant responds that, “because the confrontation
666                                                            State v. Burda

evidence offered by the state does not demonstrate the roots
of the prior disagreements, and the state has no evidence of
the circumstances of the deceased’s death,” it is “impossible
to evaluate whether the same motive that drove defendant’s
prior acts also drove the current hypothesized acts.”
         We conclude that the trial court erred in excluding evidence of the prior conflicts between the victim and
defendant in which the victim expressed or demonstrated
that defendant was not welcome at the victim’s home, the
victim’s 9-1-1 call concerning eviction of defendant, and the
victim’s statement that he had tried to evict defendant. That
evidence was relevant under OEC 401, because it “supplied
the motive” for defendant to commit the charged acts under
the state’s theory—i.e., at the time of the charged conduct,
defendant wanted to stay in the victim’s house, and the victim had repeatedly attempted to remove defendant from
the property—and that motive evidence was not dependent
on impermissible character inferences under OEC 404(3).1

 (“No matter what sort of motive evidence is offered,
the proponent must be able to show that the other-acts evidence furnishes or exemplifies the motive without relying on
impermissible character inferences.”).
         Additionally, the trial court erred in excluding the
victim’s statements to his friend that, after he had tried to
evict defendant, defendant had pushed him to the ground
and hit him. The victim related that information to his
friend on July 15, 2018—the last day that the victim was
seen alive—and that conduct by defendant appears to have
occurred within the month prior to the victim’s death.2 In
the circumstances of this case—in particular, the repeated
    1
      The trial court also ruled that the victim’s call to 9-1-1 was inadmissible
because it was “highly prejudicial,” which we understand to be a reference to
OEC 403. See OEC 403 (“Although 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 of undue delay
or needless presentation of cumulative evidence.”). Because the trial court erred
in excluding the victim’s 9-1-1 call as irrelevant, the trial court on remand will
have the opportunity to again consider the evidence under OEC 403 in light of the
relevancy of the evidence to the state’s theory of motive.
    2
      The state’s arguments on appeal are limited to evidence of confrontations
between the victim and defendant that occurred in the month leading up to the
victim’s disappearance. Our conclusion regarding the relevance of such confrontations is limited to those events in the month prior to the victim’s disappearance.
Nonprecedential Memo Op: 

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demands that defendant leave the victim’s home in the
month prior to July 15, 2018—defendant’s earlier conduct in
response to the victim’s attempt to evict him was admissible
as “common motive” evidence. See State v. Morrow, 

, 49, 

 (2019) (describing “common motive”
evidence as evidence of “a single motive that persisted over a
period of time and motivated multiple acts of violence during
that time”); see State v. Edwards, 

,

 (2016), rev den, 

 (2017) (“There was
sufficient evidence in the record to support an inference that
the same ‘jealousy issue’ that led to defendant’s assault of
[the victim] on September 13 led to assaults against [the
victim] on the charged occasions [of September 21 and
October 18].”). That is, the evidence allows for an inference
that a common motive was at work when defendant assaulted
the victim after the victim attempted to evict him and when
defendant, according to the state, “let [the victim] die” after
the alleged altercation on July 15, 2018. See Morrow, 299 Or
App at 42 (noting common motive can be inferred when “the
nature of the evidence at issue, evaluated in light of the circumstances of the crime, makes the inference a logical one”
(internal quotation marks omitted)).
         However, confrontations overheard by the neighbors between defendant and the victim that did not include
an expression of the victim’s desire to remove defendant
from the house—e.g., the victim’s statements to defendant,
“Where’d the money go we just gave you” and “We don’t have
any more money”—are not relevant to defendant’s alleged
motive to “stay in the house” under either a “supplied the
motive” or “common motive” theory, nor to any other nonpropensity theory of relevance advanced by the state. Thus,
the trial court did not err in excluding that evidence.
        Defendant’s housing difficulties and struggles with
homelessness. We turn to the trial court’s exclusion of what,
on appeal, the state describes as evidence of “defendant’s
housing difficulties” and “struggles with homelessness.”
         In the trial court, the state asserted as relevant for
nonpropensity purposes evidence that, in the years prior to
the charged conduct, defendant “rotated” between living at
the victim’s house, two other individuals’ houses, and being
668                                           State v. Burda

homeless; that, prior to the charged conduct, defendant was
no longer welcome to stay with other individuals with whom
he had resided; that defendant did not like being homeless;
and that defendant had sustained injuries while homeless.
On appeal, the state argues that defendant’s housing difficulties are relevant, because they demonstrate that, at the
time of the charged conduct, if he was forced out of the victim’s house, defendant had no place to reside, which was an
undesirable outcome for defendant.
         We agree with the state that evidence that defendant rotated between the victim’s house, two other individuals’ houses, and homelessness, as well as evidence that
those two other individuals’ houses were no longer available
to defendant, was relevant and not rendered inadmissible
by OEC 404(3)’s rule against propensity evidence. We also
agree that evidence of defendant’s dislike of homelessness
and history of sustaining injuries while homeless was relevant and not rendered inadmissible by OEC 404(3)’s rule
against propensity evidence. Defendant’s housing difficulties, dislike of homelessness, and history of injuries while
homeless (which he associated with homelessness) were relevant to explain the state’s theory of motive, that is, why
defendant would “let [the victim] die,” rather than leave the
house when the victim tried to evict him; defendant was out
of options for housing and homelessness was an undesirable
outcome for him. State v. Hampton, 

, 257 n 12, 

 (1993) (“Motive is … a cause or reason that moves
the will and induces action, an inducement which leads to
or tempts the mind to commit an act.” (Internal quotation
marks omitted.)).
         Additionally, in the trial court, the state viewed as
relevant for nonpropensity purposes evidence that defendant performed work at the two other individuals’ houses
in exchange for housing, just as he did at the victim’s
house. The state argued that defendant’s conduct while living at the other individuals’ houses was relevant for nonpropensity purposes, and—on appeal—points to various
aspects of defendant’s conduct while living at those individuals’ houses: for example, that defendant believed he could
“talk to spirits”; that defendant was outside one night waving a knife and “ranting to the heavens”; that defendant
Nonprecedential Memo Op: 

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“brought people to the property” whom one of the individuals perceived as “junkies and unsafe”; and that defendant
caused property damage.
        In our view, evidence regarding defendant’s conduct
while staying at the two individuals’ houses relies on propensity reasoning for its relevance; therefore, the trial court
did not err in excluding that evidence under OEC 404(3),
given the theories of relevance advanced by the state.
         The Strickland interview. Finally, we turn to defendant’s “interview” with Strickland, the polygraph examiner.
         In the trial court, the state argued the interview
was relevant based on defendant’s admissions to (1) creating
a pile of clothing in the room where the victim’s body was
found under a large pile of clothing; (2) cleaning that room;
and (3) that there were occasions where defendant may have
shoved the victim, including at least one occasion where
defendant pushed past the victim after the victim indicated
he wanted defendant to leave the victim’s property. The trial
court ruled that the entire interview was irrelevant, determining that it had “no value at all for the state.”
         On appeal, the state argues that “the evidence that
the state sought to admit consists of defendant’s own statements regarding his relationship with the victim (both generally and in the days leading up to the charged events), his
housing situation, what he believed ultimately happened to
the victim, and his whereabouts after the victim was last
seen” by the victim’s friend, and that, in the interview,
“defendant admitted … he created the pile of clothing
under which the victim’s body was found,” to “being in the
room where the victim’s body was found—after the victim
went missing—and cleaning the room with ‘chemicals,’ closing the bedroom door, and opening a window so that the
room could ‘air out,’ ” and stated that the “last time I saw
[the victim] he was alive—I didn’t see him in rigor mortis.”
         Defendant responds, “the sole preserved issue
relates to whether the interview is relevant based on defendant’s statements regarding the pile of clothing.” Regarding
the merits, defendant argues that the state’s proffered reason for admitting the interview “was that it was relevant to
670                                            State v. Burda

show that defendant covered the deceased’s body with clothing,” but “defendant’s statements did not suggest that fact
and therefore were not relevant.”
         Our review of the record indicates that the state
preserved its argument as to the relevancy of the Strickland
interview with regard to defendant creating the pile of clothing in the victim’s room under which the victim was found,
cleaning and airing out the room the victim was found in,
and pushing past the victim after the victim indicated he
wanted defendant to leave the victim’s property. See State v.
Parkins, 

, 

 (2009) (noting that,
“[u]ltimately, the preservation rule is a practical one, and
close calls—like this one—inevitably will turn on whether,
given the particular record of a case, the court concludes
that the policies underlying the rule have been sufficiently
served”).
         Turning to the merits, OEC 401 affords “a very low
threshold” for relevance. State v. Sacre, 

, 

 (2008) (internal quotation marks omitted).
“Evidence need only slightly increase or decrease the probability of the existence of a fact of consequence,” and “[t]he
inference to be drawn from the evidence need not be necessary, or even the most probable inference; if the evidence or
the inferences reasonably drawn from the evidence make the
existence of a fact of consequence any more or less likely, the
evidence is relevant.” 

 (internal quotation marks omitted;
emphasis in original). That standard was met with regard
to defendant’s statements about creating the pile of clothing,
and cleaning and airing out the room where the victim was
found.
         Turning to defendant’s statement that he pushed
past the victim after the victim indicated that he wanted
defendant to leave the victim’s property, one could reasonably infer that defendant did so because he wanted to stay in
the victim’s house. That evidence therefore is relevant under
both the “common motive” and “supplied the motive” theories as described above. 321 Or App at 667.
        Conclusion. In sum, the trial court erred, in part,
when it excluded various categories of evidence as either
irrelevant or inadmissible by operation of OEC 404(3) in its
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pretrial order in limine. We therefore reverse those portions
of the order.
        Reversed in part and remanded; otherwise affirmed.