372 Or. 727 - State v. Herring

No. 32                    September 19, 2024                               727

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                      STATE OF OREGON,
                       Petitioner on Review,
                                 v.
                   ERVAN RONELL HERRING,
                      Respondent on Review.
                    (CA A174188) (SC S070999)

  On petition for review filed May 8, 2024;* considered on
September 10, 2024.
    Patrick M. Ebbett, Assistant Attorney General, Salem,
filed the petition for review. Also on the petition were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Zachary Lovett Mazer, Deputy Public Defender, Oregon
Public Defense Commission, Salem, filed the response to
the petition for review. Also on the response was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section.
  Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, James, and Masih, Justices.…
   PER CURIAM
   The petition for review is allowed.
   James, J., dissented and filed an opinion.




                                                              Held




______________
   * Appeal from Multnomah County Circuit Court, Benjamin N. Souede,
Judge.

331 Or App 193

545 P3d 143

 (2024).
    … Bushong, J., did not participate in the consideration or decision of this
petition.
728                                            State v. Herring

         PER CURIAM
         The petition for review is allowed.
         JAMES, J., dissenting.
         In this case, concerning the admissibility of other
acts evidence of gang affiliation, the state proffered the evidence at trial under OEC 404(3), and has relied solely upon
OEC 404(3) in its petition to this court. But, as we made clear
in State v Davis,

372 Or 618, 633

553 P3d 1017

 (2024), “in
criminal trials in Oregon, the applicable subsection of OEC
404 that applies to acts of a defendant offered in a criminal
trial is OEC 404(4), not OEC 404(3).” That pronouncement
in Davis was not new—indeed it merely reiterated what
we said nearly a decade ago in State v. Williams,

357 Or 1, 15

346 P3d 455

 (2015), that “the legislature intended OEC
404(4) to supersede 404(3) in criminal cases.” I do not know
how much clearer we can be at this point. In a criminal
prosecution in Oregon, when the issue is the admission of
other acts of the defendant, offered by the state, the state
needs to address OEC 404(4). There is no other correct framing. OEC 404(3) is an analytical tool in performing OEC 403
balancing, it is not the operative rule for admissibility under
OEC 404. As we have said, “[e]ven though OEC 404(3) is no
longer technically controlling of other acts of a defendant
in a criminal trial, considering how the proffered evidence
would have fared under that rule ‘will have a significant
effect on whether the trial court admits that evidence’ under
the balancing required by OEC 403.” Davis,

372 Or at 635

.
         Because the petition for review in this case continues the intractable resistance of the state, both in trial courts
around Oregon, and on appeal, to argue and address the
correct rule of evidence—OEC 404(4)—I would deny review.
Our shelves are filled with other acts cases discussing OEC
404(3), when OEC 404(4) and OEC 403 would be the correct
analysis; we need not add another. However, having granted
review in this case, the parties should at least expect questions on OEC 404(4). I respectfully dissent.