State v. Sweeney

                                    443

    This is a nonprecedential memorandum opinion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 January 15, 2021, affirmed October 19, 2022, petition for
               review denied February 9, 2023 (

)


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
       CHRISTOPHER JAMES THOMAS SWEENEY,
                  Defendant-Appellant.
             Jefferson County Circuit Court
                  17CR76377; A170545


   Annette C. Hillman, Judge.
  Frances J. Gray argued the cause and filed the briefs for
appellant.
   Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
   KAMINS, J.
   Affirmed.
444                                                  State v. Sweeney

          KAMINS, J.
         Defendant appeals from a judgment of conviction
for attempted aggravated murder, ORS 161.405 (2017),
amended by Or Laws 2019, ch 635, § 15a (attempt), ORS
163.095 (2017), amended by Or Laws 2019, ch 635, § 1 (aggravated murder), unlawful use of a weapon with a firearm,
ORS 166.220(1)(a), fleeing or attempting to elude a police
officer, ORS 811.540, and reckless driving, ORS 811.140,
assigning 13 errors. We affirm.
         Defendant’s first three assignments of error relate
to the admission of prior bad acts evidence. The charges
were based on defendant leading police on a high-speed
car chase for nearly 50 miles before firing a pistol at them.
Before trial, the state moved in limine to admit the following evidence: On the day before the charged conduct, defendant, who was an 18-year-old in the custody of the Oregon
Youth Authority (OYA), was placed in an independent living
program. Defendant absconded within seven hours of his
arrival at the new placement. Upon learning of the abscondment, defendant’s grandparents anticipated that defendant
might burglarize their home because he had done so a year
prior, in 2016. Because they were traveling, they asked law
enforcement and their daughter, defendant’s aunt, to check
on the house. When their daughter did so, she found it
had been ransacked and two vehicles had been stolen. The
police spotted the stolen vehicles later that day. Defendant’s
friend, who was driving one of the stolen cars, stopped and
was arrested, while defendant continued driving, leading to
the conduct at issue in this case.1
        At the pretrial hearing, the state explained that it
would offer evidence of the prior burglaries and abscondment for nonpropensity purposes, pursuant to OEC 404(3).
Specifically, it would use the evidence to prove that defendant had a motive to “escape at all costs,” and to provide the
context for law enforcement’s interaction with defendant.
The trial court decided to admit evidence of the abscondment and both burglaries, but to exclude evidence that
defendant had been adjudicated for the 2016 burglary. It
    1
      Defendant was prosecuted separately for the burglary and unauthorized
use of a vehicle because they occurred in a different county.
Nonprecedential Memo Op: 

 (2022)           445

later admitted the adjudication as impeachment evidence
during defendant’s cross examination. We conclude that the
2017 conduct was properly admitted, and the 2016 conduct
was not, but that the errors were harmless.
         “We 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). “Evidence is relevant to prove motive if it
tends to show why the defendant committed the charged
crime.” State v. Davis, 

, 

(2018) (emphasis in original). There are two types of motive
evidence: where the prior bad act supplies the motive for the
charged conduct, and where both the prior bad act and the
charged conduct evince the same motive. Tinoco-Camarena,

.
        Beginning with defendant’s second assignment of
error, which challenges admission of the 2017 abscondment
and burglary, the trial court did not err because the evidence
was relevant to prove defendant’s motive to escape police.
The abscondment evinces the same motive as fleeing from
and shooting at police, a desire to be free from state custody. Given that the abscondment occurred the day before
the charged conduct, it is reasonable to infer that the motive
persisted throughout that time. See State v. Wright, 

, 

 (2016) (In assessing whether a
prior bad act and charged conduct evince a common motive,
“courts must evaluate [the] past act to determine, first, what
motive the prior [act] demonstrates, and, second, whether
the circumstances of the charged crime support an inference that the same motive is at work.”).
         The burglary helped supply the motive for defendant to flee from and shoot at police because at the time of
the charged conduct, he was in possession of the proceeds
of that burglary and was therefore motivated to avoid being
captured by police to escape punishment for that crime. See
State v. Hopkins, 

, 

, adh’d to
as modified on recons, 

, 

 (1994)
(evidence that defendant possessed stolen credit cards and
had cashed a forged check earlier in the day was admissible
446                                         State v. Sweeney

to establish his motive to escape police). None of those inferences require propensity-based reasoning, because they do
not rely on defendant’s particular tendency to act a certain
way, rather, the common desire to avoid punishment. See
Davis, 

 (observing that “a crucial difference between permissible motive-based reasoning and a
character-based theory of motive is that the former assumes
that a motive might exist because any person might possess
one under those specific circumstances” while the latter
“relies upon a chain of inferences that employs the evidence
to establish that the person (1) is more inclined to act or
think in a given way than is typical, and (2) is therefore
more likely to have acted or thought that way on a particular occasion” (internal citations and quotation marks omitted, emphasis in original)).
         Turning to defendant’s first assignment of error,
which challenges the pretrial admission of the 2016 burglary, we conclude that the trial court erred because there
was no “substantial connecting link” between that burglary
and the charged offenses. State v. Morrow, 

, 42,

 (2019) (To demonstrate the relevance of motive
evidence, “the state must show ‘some substantial connecting
link’ between the uncharged misconduct and the charged
offense. That is, there must be ‘a sufficient logical connection’ between the uncharged acts and the asserted motive
for the charged acts.” (Citing State v. Turnidge (S059155),

, 

 (2016).)). The mere fact
that defendant had previously stolen items from the same
victims and possessed the proceeds from that second burglary at the time of the charged conduct, exposing him to
increased punishment as a repeat offender, is insufficient to
establish such a link. See Wright, 

 (“[T]he
mere possibility that the same motive that caused an earlier
crime or act also caused the charged crime is not enough to
make evidence of the prior act relevant. Instead, something
in the circumstances of the charged crime must suggest
that the identified motive is at work.”). Otherwise, the same
logic would render admissible any prior crime whenever a
defendant’s charged offense is motivated by a desire to avoid
punishment for a similar crime. See Davis, 

 (“The motive theory should not apply when the motive
Nonprecedential Memo Op: 

 (2022)              447

is so common that the reasoning that establishes relevancy
verges on ordinary propensity reasoning[.]” (Internal punctuation and citation omitted.)).
          Defendant’s third assignment of error challenges
the trial court’s admission of the 2016 adjudication for burglary as impeachment evidence. The state used the adjudication to attack defendant’s credibility with respect to a detail
about the 2017 burglary. However, because defendant was
not on trial for burglary in this case, that topic was a “collateral matter,” and thus not a proper subject for impeachment.
State v. Guzek, 

, 

 (2007) (“[A] witness cannot be impeached as to merely collateral matters.
… [A] fact is not collateral if the cross-examining party
would have been entitled to prove it as part of and tending
to establish its case.” (Internal quotation marks omitted.)).
         We further conclude, however, that both errors were
harmless. The jury was properly informed that defendant
had absconded from OYA custody the day before, so the only
additional information provided by the improper evidence
was the nature of the crime for which he was in custody.
Given that the jury had already learned that defendant
committed burglary in 2017, the fact that his commitment
to OYA was based on the same crime was not likely to cause
prejudice as to the charges at issue here. Further, the evidence only came in during cross-examination of defendant,
when it was briefly mentioned twice. Right after the second
mention, when the adjudication was admitted as impeachment evidence, the trial court delivered a limiting instruction that cautioned the jury against propensity-based reasoning. The limiting instruction was also given again at the
close of evidence. The state did not mention the 2016 burglary in its opening statement and did not make any arguments about it in closing. Admission of the 2016 burglary
and adjudication was harmless because there was “little
likelihood” that it affected the verdict. State v. Phillips, 

, 

 (2021).
         Defendant’s fourth through eleventh assignments
of error are unavailing because there was evidence in the
record from which the jury could conclude that the firearm
was operational.
448                                         State v. Sweeney

         Defendant’s final two assignments assert that the
trial court plainly erred by imposing enhanced sentences
for the use of a firearm during the commission of a felony.
See ORS 161.610 (2017), amended by Or Laws 2019, ch 634,
§ 7. Regarding assignment of error 12, the trial court did not
plainly err. State v. Moore-Zuniga, 

, 

 (2009). Regarding assignment of error 13, although
the trial court plainly erred, we decline to exercise our discretion to correct the error because it would have no impact
on defendant’s aggregate sentence. See State v. Allen, 

, 

 (2017) (reaching the same result).
        Affirmed.