1 Filed: August 16, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff

- Appellant,

v.
TERRY LAVELL HAYNES, aka Terry Levell Haynes, Defendant

- Respondent.

(CC 110531963; SC S060103)

En Banc
On appeal from an order of the Multnomah County Circuit Court under ORS 138.060( 2 ) and ORAP 12.07.
Argued and submitted June 12, 2012.
Jennifer S. Lloyd, Attorney

- in

- Charge, Criminal Appeals, Salem, argued the cause for plaintiff

- appellant. With her on the briefs were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for defendant

- res pondent.

DE MUNIZ, J.

The order s of the circuit court are affirmed
, and the case is remanded to the circuit court for further proceedings.2 DE MUNIZ, J. 1
Defendant is charged with murder and manslaughter. Defendant filed two 2
pretrial motions to exclude evidence, the first seeking to exclude evidence of five 3
allegations of prior bad acts, and the second seeking to exclude defendant's interview 4
with the police. The trial court granted in its entirety defendant's motion to exc lude 5
defendant's pr ior bad acts , and granted in part and denied in part defendant's motion to 6

exclude the police interview. The state seeks direct review of both rulings pursuant to 7

ORS 138.060(2)(a). 1 On review , the state seeks to reverse the trial court's rulings to the 8

extent that the trial court granted defendant's motion to exclude with re spect to one of the 9
five alleged instances of prior conduct and granted in part defendant's motion to exclude 10
the interview. Defendant, for his part, does not challenge the trial cou rt's order denying 11
in part his motion to exclude the interview, but urges this court to affirm the trial court's 12

order s in all respects. For the reasons stated below, we conclude that the state did not 13
adequately preserve in the trial court any of the arguments that it now a dvances on appeal 14
with regard to the admissibility of the prior bad act s . In addition, we decline to consider 15

1 ORS 138.060(2)(a) provides, in part:

"(2) * * * [W] hen the state chooses to appeal from an order listed in paragraph (a) or (b) of this subsection, the state shall take the appeal to the Supreme Court if the defendant is charged with murder or aggravated murder. The orders to which this subsection applies are:
"(a) An order made prior to trial suppressing evidence[.]"3

the state's argument with regard to the partial exclusion of the interview because it 1
assigns error to an orde r that the trial court did not make. We affirm the trial court 's 2

orders and remand the case to the trial court for further proceedings

. 3

I. FACTS 4

D efendant is charged with committing a murder that is alleged to have 5
occurred on the evening of May 6, 199 4. The victim, a 62

- year

- old man who lived alone 6

in a house on the corner of 7th and Skidmore in Northeast Portland, was discovered dead 7
in his home on the morning of May 8, 1994. The victim's home was in disarray. A table 8

had been overturned, a number of household items were broken and strewn throughout 9
the house, and the refrigerator had been pushed away from the wall and left standing in 10
the middle of the kitchen. The victim's wallet, containing cash, was found submerged in 11

the toilet tank. The medi cal examiner determined that the victim's death was caused by 12

excessive blood loss as a result of 31 stab wounds, 29 of which were located on the 13

victim's forearms and characterized as "defensive" wounds. The medical examiner 14
opined that none of the wound s would have been independently fatal
, but for the severe 15

loss of blood, and also noted that the victim's blood alcohol level was .49 percent at the 16

time of his death. 17
The police conducted a search of the area surrounding the victim's home 18

and discover ed a bloody rag in an adjacent neighbor's shrubbery and a pair of 19
bloodstained khaki pants, canvas shoes, and men's underwear behind a shrub in the yard 20
of a home across the street. The police also interviewed several friends and 21
acquaintances of the vict im, who described the victim as a consistently heavy drinker and 224

prone to inviting strangers, prostitutes, and street people into his home. However, the 1
police were unable to identify any suspects, and the case went cold. 2

In 2010, a police cold case u nit sent the items of clothing that had been 3
found near the crime scene to the Oregon State Police Crime Laboratory for DNA testing. 4
Forensic scientists at the crime laboratory reported that DNA from the bloodstains on the 5
khaki pants and canvas shoes mat ched the victim's DNA profile, and that a second DNA 6
profile found on the waistband of the khaki pants and on the men's underwear matched 7
defendant's DNA profile. Defendant, who was known to the police from previous 8
encounters, was located and brought to the police station for questioning. 9
The interview began conversationally. A cold case officer and another 10
officer who apparently was familiar with defendant from previous encounters spoke 11
casually with defendant about his family, where he had gone to high school, where he 12
had been living recently, and a recent run

- in that defendant had had with the police. 13
After some time, defendant asked the officers to tell him why he was there. The officers 14

then read defendant his Miranda rights and began question ing him about the time period 15
surrounding the murder. The officers asked defendant what he had been doing around 16

1994. Def

endant responded that he could no t remember, but he thought he was either in 17
prison or in Job Corps. The officers asked defendant i f he remembered knowing anyone 18
named "Raymond" (the victim's name) living in Northeast Portland back in 1994. 19
Defendant responded that he knew a "light skinned dude" named Raymond "from 20
treatment," but could not recall knowing anyone named Raymond who had lived in 21
Northeast Portland. When asked generally whether he ever spent time around the 225

Skidmore area in 1994 , defendant volunteered that his sister lives on 7th and Skidmore, 1

but denied knowing or remembering any neighbor of his sister's named Raymond. 2
Defendant told the officers that he had been working the streets and drinking and using 3
drugs back then, and that he really could not remember much from that time period. 4
The officers then asked defendant (who apparently worked as a cross

5
dressing pro stitute) whether he ever had had any violent encounters with " johns " or 6
whether any " johns " ever had attacked him in a house. Defendant related various 7
encounters in which he had been attacked by " johns, " but again denied any memory of 8
anything from 1994, anyone named Raymond, or anything happening around Skidmore 9

Street. When the officers told defendant that there had been a murder and that his DNA 10
was "coming up" at the murder scene, defendant responded, "You know what, I'm a 11
hooker, I, I, I may have...* * * They could, I may have dated the person, I don't, you 12
know what I'm saying, but...* * * I'm not into hurting people. * * * You know, I've, I've 13
had to fight to get away from people trying to harm me, but, you know, hurting people or 14

huh

- uh." The officer s then asked defendant whether he remembered ever getting arrested 15

with an old man in Vancouver , Washington

. 2 Defendant responded, "Yeah, the guy tried 16
to take me out in the woods and he had a gun. * * * I do remember that, the guy had a 17

2 A police report indicated that defendant had been pulled over and cited for driving under the influence of intoxicants in Vancouver, Washington, in the early morning hours of May 7, 1994

-- the same night that the police suspected the murder had taken place. The car that defendant had been driving that night belonged to an elderly man who was riding in the passenger seat. That incident is the subject of the state's first assignment of error, and is discussed in further detail below.6

gun he tried to t ake me out in the woods and the reason why I remember that is because 1
they tried to give me 25 years over there. * * * I got a DUI, uh, and I remember from that 2
is that I had, I got, I ended up with a DUI and that's it, but anyway, I'm, you know..." 3

Defenda nt then ended the interview by invoking his right to counsel. 4

II. PRIOR BAD ACTS 5

A. Procedural Background 6
In his motion to exclude prior bad acts, defendant moved to exclude from 7
evidence five allegations of robbery that he thought that the state would seek to admit at 8

defendant's trial . Defendant described the five incidents as follows: 3 9
"In the robbery charge from 09/06/1994, [defendant] was accused of 10 walking into a man's office, grabbing a wallet off his desk, punching the 11 victim, and running away. [Defendant] was acquitted by a jury of this 12 charge. 13
"In the robbery case from 05/06/1994, [defendant] was suspected of 14 entering a man's car while it was stopped at a stop light, threatening the 15 man with violence, and stealing his wallet. Additionally, [defendant] was 16 suspected of forcing the victim to drive to his home. There, [defendant] 17 supposedly met up with an accomplice. [Defendant] and the accomplice 18 were accused of trying to take more money from the victim and then fleeing 19 with the victim when seen by others. 20
"In the robbery charge from 07/11/1997, [defendant] was alleged to 21 have forced his way into a stopped car. [Defendant] was accused of 22 threatening the driver, stealing his wallet, and running away. The charges 23 against [defendant] were pre sented to a grand jury and it was not a true bill. 24

3 On appeal, the state assigns error to only the part of the trial court's order excluding evidence of the May 6, 1994 incident. However, we include a brief discussion here of all five alleged prior bad acts initially at issue to provide context for the parties' arguments in the trial court.7 "In the robbery case from 03/28/1998, [defendant] was accused of 1 helping a prostitute rob a client at a motel. [Defendant] was accused of 2 tackling the client and taking his credit card off of the floor. The charges 3 against [defendant] were dismissed. 4
"Lastly, in the robbery case from 08/29/07, [defendant] was accused 5 of entering a stopped car, threatening the driver with a weapon which the 6 driver never actually saw, hitting the driver, taking his car ke ys, and 7 fleeing. [Defendant] was acquitted by a jury on this charge." 8
Defendant argued that evidence of those five incidents should be excluded as 9
"inadmissible character evidence" under OEC 404(3), which provides that: 10

" Evidence of other crimes, wrongs or acts is not admissible to prove 11 the character of a person in order to show that the person acted in 12 conformity therewith. It may, however, be admissible for other purposes, 13 such as proof of motive, opportunity, intent, preparation, plan, knowledge, 14 ide ntity, or absence of mistake or accident." 15
In support of that argument, defendant identified three nonpropensity purposes that, 16
according to defendant, could not be used to justify admission of the prior bad acts

-- 17
identity, intent, and motive. 18

The state filed a brief in response that, while styled as a "Memorandum of 19
Law in Response to Defendant's Motion to Exclude Prior Acts," also purported 20
affirmatively to move the trial court for an order "allowing the prosecution to admit 21

evidence of five incid ents during which [defendant] took or attempted to take the 22
property of another person by force." The state substituted two different incidents, both 23

from 1991, for the first and fourth incide nts described in defendant's motion

. 4 The state 24

4 In each of the two substituted incidents, a robbery charge against defendant had been dismissed pu rsuant to a plea agreement in which defendant had pled guilty to a lesser burglary charge.8

described the remaining three incidents substantially as defendant had described them in 1

his motion

. The state's summary of the May 6

- 7, 1994 incident was as follows: 2
"In the robbery case from May 6, 1994, the defendant was suspected of 3 entering a man's car while it wa s stopped at a stop light, threatening the 4 man with violence, and stealing his wallet. Additionally, defendant was 5 suspected of forcing the victim to drive to his home. There, defendant 6 supposedly met up with an accomplice. The defendant and the accompl ice 7 were accused of trying to take more money from the victim and then fleeing 8 with the victim when seen by others." 9

Later in its trial brief, as part of a narrative recitation of the facts underlying 10
the current charged offense, and under the representa tion that, "[t]he State's evidence in 11
the present case can be summarized as follows," the state noted that defendant had been 12
arrested in Vancouver, Washington
, on May 7, 1994, at 1:05 a.m., in the company of an 13
elderly man named Early. In that narrative, t he state noted that, during that incident, 14

defendant 15
"was dressed in a woman's 'jumper' style dress, and he was not wearing 16 underwear, that he had miscellaneous papers, foam, and shrubbery stuffed 17 into a t

- shirt he was wearing under the dress in an appar ent attempt to 18 appear to have women's breasts. * * * [S]ome of the papers stuffed into 19 [defendant's] t

- shirt were registration papers for the vehicle (registered to * 20 * * Early) and bank documents pertaining to Early's bank accounts. [The 21 officer] report [ed] that when she asked [defendant] where he had been 22 driving from, [defendant] responded 'Portland.' [The officer] report[ed] that 23 when she asked [defendant] about * * * Early's accusation that [defendant] 24 had kidnapped Early, [defendant] denied this, b ut stated that he had met * * 25

* Early in a Portland, Oregon park and lat er stated that he had met * * * 26 Early in a bar, and that Early had been teaching [defendant] to drive." 27
However, the state made no indication in its trial court brief that that inciden t was in any 28
way related to any of the five "prior bad acts" that the state had identified earlier in the 29
brief. Rather, the state's earlier description of the incident that it sought to admit alleged 309

that the incident had occurred on a different date tha n the incident described in the factual 1

narrative (May 6, 1994, rather than May 7, 1994), and made no mention of the facts that 2

the arrest had occurred in Vancouver, that defendant had been wearing women's clothing 3
stuffed with found objects, or that defendant had not been wearing underwear. T he two 4
descriptions differed so substantially that the trial court may not even have understood, at 5
that point, that the incidents were one and the sa me. 6

The state made two arguments in its trial court brief. First, the state argued 7
that all five prior bad acts were admissible to show defendant's intent. The state argued 8

that "[t]o determine relevance to intent , the question is whether the jury could infer that, 9

because the defendant acted with a certain intent in a different act, he acted with the same 10
intent in the present act." (Emphasis in original.) The state attempted to support that 11
argument solely by demonstrating the similarity of the prior conduct with the charged 12
conduct. The only specific mention the state made of any of the facts relating to the May 13

6

- 7, 1994 incident was to argue, pursuant to the third step of the test described in State v. 14

Johns , 301 Or 535, 725 P2d 312 (1986), that t he victims in each prior incident were "in 15
the same class as the victim in the present case," because "[s]everal [of the victims] were 16
particularly vulnerable. Early was 71 years old when he was victimized by [defendant]. 17
[A victim in a separate incident ] has developmental delays. The present victim was a 18

late

- stage alcoholic and his blood

- alcohol content was .49%." 19
The second and final argument that the state made in its trial brief was that 20
"[t]he prior/subsequent acts are admissible to show the defe ndant's motive." The state's 21
argument in support of that contention consisted of the following two sentences: 2210 "As the defendant points out in his memorandum, the court must 1 undertake an analysis similar to that described above [with regard to the 2 Johns t est for intent], to determine if the prior/subsequent acts are 3 admissible to show motive. The defendant also (correctly) points out that, 4 for the purpose of motive, the physical elements between the two crimes 5 need not be similar to be admitted." 6

The stat e made no attempt to identify any rationale under which the facts of any of the 7

identified bad acts would be logically relevant to prove motive. 8

A t the suppression hearing, the state conceded that its arguments with 9
regard to intent "don't have much meri t." The state went on, however, to argue that the 10
prior bad acts should be admitted for two reasons: first, as to all five prior bad acts, to 11
prove motive, 5 and second, with regard to only the May 6

- 7, 1994 incident, to show 12
defendant's "continuing cours e of conduct." Although that second argument had not been 13

raised or mentioned in the state's trial court brief, the state contended at the suppression 14
hearing that its position was now "primarily" that the May 6

- 7, 1994 incident was 15
admissible not as a pr ior bad act but as evidence of defendant's "continuing course of 16
conduct" on the night of the victim's death: 17
"[I]t's the State's position primarily that that incident is admissible not 18 because it's a prior bad act as such, but because it's part of a conti nuing 19 course of conduct of that evening. You know, this homicide, as the [c] ourt 20 will recall, there are some questions about the exact time of the death. 21

"* * * * * 22
"* * * [T]here is a lot of evidence in that scenario that has to do with 23

5 It appears that the state since has abandoned its motive theory of relevance, as it does not advance any motive argument in this court. We thus have no need to and do not further discuss the basis of that argument here.11

what the defen dant did immediately after, in the State's theory, causing the 1 death of [the victim]. 2
"So it's also evidence of his flight from the State of Oregon, of his 3 continuing course of conduct, which is, the State's theory is that this was a 4 robbery at [the victi m's] house, and then there was also this taking of Mr. 5 Early across the state line. And we've got evidence of conduct at Mr. 6 Early's care home and, you know, some physical altercation there. 7
"There was a question to [defendant] in

-- at the Vancouver Pol ice 8 Department about the kidnapping and about the circumstances through 9 which he came into contact with Mr. Early. Yes, it's a prior bad act

-- or I 10 guess technically a subsequent bad act to the homicide. But my position is 11 that it's

-- that the State's not resting its theory of admissibility of that 12 particular incident solely on a Johns

- type analysis

-- 13

" * * * * * 14

"

-- because it's part of a continuing course of conduct in the State's 15 position." 16

Those statements marked the first time that the state noted any relation between the first 17
"prior bad act" that it sought to admit and the Vancouver incident descr ibed in its brief 18
involving Early, as well as the first time that the state made any argument with regard to 19
the May 6

- 7, 1994
, incident in particular, separately from the other four alleged pri or bad 20

acts. Those statements also comprised the state's sole explanation of its new "continuing 21
course of conduct" theory. Other than the remarks set forth above, the state made no 22
attempt to disc uss or explain that theory of admissibility or to apply it to the facts of the 23

case. 24
In response, d efendant's counsel noted the state's concession with regard to 25
its intent argument, and focused his arguments primarily on addressing the state's 26

argumen t on motive. The sole remarks that defendant's counsel made regard ing the 27
state's new "continuing course of conduct" theory conceded that that theory might support 2812

the admission of certain isolated facts relating to that incident, but contended that it could 1
not support the admission of the entire episode

-- including the uncharged allegations of 2
robbery, carjacking, and kidnapping

-- as a prior bad act: 3

"And the n the last thing I wanted to say is about on the argument of 4 continuing course of conduct. Again, it's just

-- the problem with it is you

- 5

- I guess I would concede this. I think that they would be able to bring in 6 witnesses that said, 'You know what? I saw, this

-- that date that this 7 happened, I saw [defendant], and he was with somebody,' or 'he was 8 intoxicated,' or 'he appeared'

-- you know, the officers, I think that's what 9 they would testify to, is that he appeared intoxicated to him. 10

"I don't th ink they should be allowed to bring in that Mr. Early was 11 alleging this, that or the other thing. 12

"So stuff that is

-- percipient witnesses that I then have to cross

13 examine about what you saw, but I think that's pretty limited. I don't think 14 the State s hould be able to bring in that Mr. Early charged you with 15 robbery, charged you with these other things. 16
"If it's just a simple percipient witness, I don't know that I've got the 17 argument because the argument on these 404, on this Johns analysis, on 18 these various things, says it's that allegation of misconduct that the State is 19 offering to say this clears up an element in the case. And that's what I think 20 is prohibited." 21
The suppression hearing concluded, with neither party making any further remarks 22

regar ding the state's "continuing course of conduct" theory. 23

The trial court issued its first order on the matter one month later. With 24
regard to the prior bad acts issue, the trial court granted defendant's motion to exclude all 25
five prior bad acts, holdi ng that "the state cannot show sufficient factual and legal 26
connection to convince this court that the prior instances of misconduct would be 27
admissible to show intent or motive. This is classic propensity evidence." In identifying 28
the prior bad acts tha t the state sought to admit, t he trial court's order described the May 2913

6

- 7, 1994 incident only as follows: 1
"On May 6, 1994, defendant is suspected of entering a man's car while 2 stopped at a light, threatening the man and taking his wallet." 3

The order did not acknowledge or address the state's "continuing course of conduct" 4
argument in any way. 5
In response to the trial court's order, the state filed a "Motion for Further 6
Findings of Fact and Rulings of Law," noting that the trial court's order "focus[ed] upon 7
the question of whether the uncharged conduct is relevant to show intent, or to show 8
motive (which is how the parties framed the issue for the court's consideration)," and 9
failed to address the "continuing course of conduct" argument that the state h ad 10

mentioned at oral argument. The motion asked the trial court for further rulings 11
regarding the relevance of "the particular facts of the defendant's contact with * * * Early, 12
[a nurse at Early's care home], and [the Vancouver police officer] under the more broad 13

tenets of ORE 404(3)

-- specifically, that the evidence proffered is relevant to show the 14

defendant's state of mind on that evening, and to show that he was acting with a plan ." 15
(Emphasis added.) 16

The state had made n either of those arguments as part of its earlier motion 17

to admit evidence of the earlier five incidents . Rather, as noted above, the state did not 18
make a "continuing cou rse of conduct" argument at all in its trial court brief, and in 19
argument had mentioned it only briefly, and at that point had characterized the logi cal 20

relevance of that evidence as pertaining to "the exact time of the death," "what the 21
defendant did immediately after * * * causing the death of [the victim]," and "his flight 2214

from the State of Oregon." The state ma de no mention at the hearing of any theory 1
relating to defendant's "state of mind" at the time of the victim's death or to any sort of 2
"plan" that defendant might have formed to cause the victim's death. N either did the state 3

advance any analysis in its t rial court brief, orally at the suppression hearing , or in its 4
subsequent motion for further findings and rulings as to how the proposed conduct could 5
be used to prove defendant's "state of mind" or "plan," or, even if it could, why proof that 6

defendant ha d acted with a certain state of mind or had formed a particular plan would 7

serve to make the existence of any fact at issue in the murder prosecution any more or 8
less likely. 9
The trial court issued a second order to "clarif[y]" its first order, noting th at 10
"[a]lthough [it] was not requested in the [state's] original motion," "[t]he state now says it 11
also intended to argue that in addition to intent and motive it was seeking admission to 12
show defendant[']s state of mind and his plan." Despite its statemen t that the state had 13

not made that argument in the prior proceedings, the trial court went on to consider the 14

merits of the st ate's argument. However, the court declined to change its ruling, holding 15
that the May 6

- 7, 1994 incident was not independently r elevant under either of the two 16

theories

-- state of mind or plan

-- that the state had argued in its motion for further 17
findings and rulings : 18
"[T]he other conduct shows that defendant is out drinking and driving with 19 a[n] older man and all other facts men tion[ed] above. It does not indicate 20 that defendant would use [a] knife to murder or kill or ransack a home. It 21 does not show state of mind 30 hours earlier and it does not show a plan." 22

T he state filed an Amended Motion for Further Findings of Fact an d 2315

Rulings of Law, which corrected an error in the state's previous motion with regard to the 1
pertinent dates , to indicate that the incident in question had occurred on the same night as 2
the murder as opposed to 30 hours after the murder

. 6 In a third order, the trial court again 3
declined to change its ruling: 4
"The court has reviewed its prior ruling to determine if that change 5 would affect its ruling. It would not. The state[']s allegation [is] that 6 defendant[']s conduct is admissible and r elevant to show defendant[']s 7 continuing course of conduct. Of course everything that defendant did is a 8 continuing course of conduct. The question is: What if anything is relevant 9 about defendant[']s conduct after the alleged murder that would show 10 defe ndant[']s plan[?] That is, what about the arrest for kidnapping and 11 DUII * * * shows defendant was involved in a murder where the deceased 12 was stabbed on the back of his arms and bled to death primarily because he 13 had a blood alcohol level of .49 [percent ] and would not have died 14 otherwise [?] 15
"The state argues that the arrest for kidnapping and DUII are not 16 'prior bad acts' or 'uncharged conduct' but are 'simply information relevant 17 to the defendant[']s actions, CONDUCT, and demeanor during the time 18

surro unding the homicide. ' 19
"I disagree. This court stands by its previous ruling." 20
(Emphasis in original.) 21

B. State's Arguments on Direct Review 22

In this court, the state advance s two theories regarding how the evidence of 23
the May 6

- 7, 1994 incident would be relevant for a nonpropensity p urpose. First, the 24

6 The state's Amended Motion was filed before the date of the trial court's second order, but apparently was not entered until after the trial court had issued that order. Thus, it would appe ar that the trial court did not see the state's Amended Motion until after it had issued its second order, and the state did not see the trial court's second order until after it had filed its Amended Motion.16

state argues that "the incident involving Early tends to prove that defendant was in the 1
area of 7th Street in Northeast Portland near the time of the homicide." In support of that 2
"proximity" theory o f relevance, the state explains that,"[i]f a factfinder believes that 3
defendant was indeed in the vicinity at the time of the homicide, that fact has a tendency 4
to support the state's theory that defendant committed the crime. It shows that he had an 5

oppor tunity to commit the homicide, and it corroborates the DNA evidence that ties 6

defendant to the s cene." Second, the state argues that "[t]he facts of the Early incident 7
also are necessary to show defendant's flight from the area." In support of that "flig ht" 8
theory o f relevance, the state explains that, "[f]light and evasive measures are relevant to 9
a guilty conscience. A guilty conscience is circumstantial evidence of guilt." 10
Defendant contends that the state failed to preserve the arguments that it 11
now makes before this court. The state responds that both arguments were adequately 12
raised before the trial court, based largely on the state's single reference during argument 13
at the hearing to "[defendant's] flight from the State of Oregon." The state argues that 14
that single reference to "flight" was sufficient to preserve for this court's review not only 15
the state's argument with regard to flight, but also the state's argument with respect to 16
proximity, because, although the state did not expressly use the term "proximity" in 17
describing its "continuing course of conduct" theory of relevance, the "common

- sense 18
meaning of the term 'flight' necessarily involves two aspects: first, that the defendant 19
began in one location, and, second, that he left that lo cation and went somewhere else." 20
(Emphasis in original.) 21
As explained below, w e conclude that it is unlikely that the trial court 2217

understood the state's single, unadorned reference to "flight" in the context of its 1
"continuing course of conduct" argumen t to encompass all of the layers of meaning and 2
complex relevance arguments the state now presents to this court. Consequently, we hold 3
that that reference was insufficient to preserve either of the theories of relevance that the 4
state now presents to thi s court. 5

C. Preservation 6
ORAP 5.45(1) provides that "[n]o matter claimed as error will be 7
considered on appeal unless the claim of error was preserved in the lower court and is 8
assigne d as error in the opening brief ." In Peeples v. Lampert , 345 Or 209, 219, 191 P3d 9
637 (2008), we summarized the policies underlying that preservation requirements as 10

follows: 11
"Preservation gives a trial court the chance to consider and rule on a 12 contention, thereby possibly avoiding an error altogether or corr ecting one 13 already made, which in turn may obviate the need for an appeal. 14 Preservation also ensures fairness to an opposing party, by permitting the 15 opposing party to respond to a contention and by otherwise not taking the 16 opposing party by surprise. Fi nally, preservation fosters full development 17 of the record, which aids the trial court in making a decision and the 18 appellate court in reviewing it. Our jurisprudence, thus, has embraced the 19 preservation requirement, '[not] to promote form over substance but to 20 promote an efficient administration of justice and the saving of judicial 21 time.' 22

" Preservation rules are pragmatic as well as prudential. What is 23 required of a party to adequately present a contention to the trial court can 24 vary depending on the nature of the claim or argument; the touchstone in 25 that regard, ultimately, is procedural fairness to the parties and to the trial 26 court." 27
(Citations omitted.) The purpose of the preservation doctrine is not "to promote form 28

over substance" but to furthe r those practical policy goals. Id. To that end, in analyzing 2918

whether a party adequately has preserved an issue for our review, we examine the 1
individual circumstances of the case at hand to determine whether "the policies 2
underlying the rule have been s ufficiently served." State v. Parkins , 346 Or 333, 341, 3

211 P3d 262 (2009). 4

Short

- hand references, if they are adequate to serve those policies, may be 5
sufficient to preserve an issue for appellate review. See, e.g.
, State v. Walker
, 350 Or 6

540, 550, 258 P3d 1228 (2011) (noting that "the realities of trial practice may be such 7
that fairly abbreviated short

- hand references suffice to put all on notice about the nature 8
of a party's arguments"). However, to adequately p reserve an issue for review, a sho rt

9

hand reference , such as a single word or phrase , must be used in a way and context in 10

which the other parties and the court w ould understand that the word or phrase refer s to a 11
particular legal or factual argument, and also would understand from that si ngle reference 12

the essential contours of the full argument. See, e.g.
, State v. Stevens , 328 Or 116, 122, 13
970 P2d 215 (1998) (preservation inquiry is not "a cursory search for some common 14
thread, however remote, between an issue on appeal and a position t hat was advanced at 15

trial"). 16
Under the circumstances of this case, the state's single reference to "flight" 17
did not adequately put the trial court on notice that the state intended to rely on the 18
theories of "flight" or "proximi ty" to establish admissibility and did not adequately 19

communicate to the trial court the content and substance of those theories. A lthough the 20
state quotes heavily from certain isolated excerpts of its argument to the trial court, the 21

state's a rgument at the hearing consi sted primarily of a discussion of the two points that it 2219

had raised in its trial court brief

-- intent and motive

-- both of which were based on the 1
alleged similarity of the "bad acts" to the charged crimes . In the few instances in which 2

the state did me ntion any alternative theory of relevance, it referred to that theory as 3
relating to defendant's "continuing course of conduct," without explaining to the trial 4
court how the facts underlying that incident established any particular course of conduct 5

or wh y that course of conduct was relevant to the issue of defendant's guilt. 6
The state's brief mention of "flight" during its argument to the trial court 7

also was inadequate to fairly apprise defendant of the content and substance of the state's 8

present ar guments and to permit defendant meaningfully to respond to those arguments. 9

The state's wr itten brief made no mention of any "flight" or "proximity" argument. 10
Although the state noted in passing before raising its new "continuing course of conduct" 11

theor y that the state had "mentioned this to [defense counsel] ahead of time," we do not 12
know how far in advance the state apprised defendant of its alternative position, how 13
exactly it defined that position to defendant, or whether defendant had any meaningful 14
opportunity to prepare to address the issue before the hearing . We do know, however, 15
that defendant did not submit any written argument to the trial court with regard to the 16

state's "continu ing course of conduct" argument and that defendant's only mentio n of that 17
theory at the hearing was to concede that, while the state's alternative theory of r elevance 18
might have some merit with regard to whether certain isolated, neutral facts incident to 19

the "bad act" could be established through the testimony of "per cipient witnesses," 20
defendant understood the state's position at the hearing to be that the entire incident as a 21
"prior bad act" was relevant and admissible

. 2220 It is apparent from the trial court's orders that the trial court shared that 1
understanding of t he issue. Indeed, the state never asked the trial court to partition out 2
and separately determine the admissibility of any isolated facts incident to the bad acts, 3
but rather defined the evidence that it sought to admit as a "robbery case from May 6, 4

1994 , [in which] the defendant was suspected of entering a man's car while it was 5
stopped at a stop light, threatening the man with violence, and stealing his wallet. 6
Additionally, defendant was suspected of forcing the victim to drive to his home * * * 7

[and] trying to take more money from the victim and then fleeing with the victim when 8
seen by others." That description does not include any of the facts that the state now 9
argues pertain to "flight" and "proximity." T he issue that the parties were arguing in the 10
trial court was limited to whether the entire episode

-- including the unproved accusations 11
of robbery, carjacking, and kidnapping

-- could be admitted at trial, not whether evidence 12

of certain discrete , neutral facts, like when and where the defendan t was seen and what he 13
was wearing (and not wearing) on the night of the murder
, might be admissible 14
independent of the allegations of criminal activity

. 15
The arguments that the state made in its motion for further findings and 16
rulings also support our conclusion that the state did not raise in the trial court the 17
theories of admissibility that it now presents in this court. As noted, i n response to the 18

trial court's first order , which ruled only on the intent and motive theories of 19
admissibility, the s tate moved for further findings and rulings with regard to its 20
alternative theories of relevance, which it identified only as "state of mind" and "plan." 21
Although a party need not necessarily reiterate an argument at every point in the 2221

proceeding to adequ ately preserve it, see, e.g. , Walker , 350 Or at 550, when a party files a 1
motion for the specific purpose of calling the trial court's attention to arguments that it 2
alleges the court to have overlooked and does not mention a particular argument, that 3

prov ides a strong indication that the party at that time did not consider itself to be making 4
that argument. 5
Finally, we are cognizant that
, in some cases, a strict application of the 6
preservation rule " also can come at a cost. It may prevent a reviewing court from 7
correcting prejudicial error * * * [and] also may inhibit needed development or 8

clarification of the law." Parkins , 346 Or at 340. However, we note that, in this case, 9
nothing in the trial court's order, which precluded the admission of the Ma y 6

- 7, 1994 10
robbery, kidnapping, and carjacking allegations as "prior bad act s ," necessarily bars the 11

state from offering evidence at trial of any individual facts connected with that incident 12
that might be relevant, independent of the inadmissible allegat ions of bad acts, to 13
establish defendant's proximity to the murder scene and flight therefrom. In declining to 14
review the state's contentions in that regard, we express no opinion on the merits of those 15
arguments but note only that they were not presented to the trial court and the trial court 16

did not rule on them. 17

III. ADMISSIBILITY OF DEFENDANT'S POLICE INTERVIEW 18

The state next seeks this cou rt's review of the trial court 's order granting in 19
part and denying in part defendant's motion to exclude his i nterview with the police. The 20

trial court's order provides : 21

"Most of this interview was conducted after defendant was advised 2222

of Miranda rights and knowingly waived his Miranda rights. The court 1 finds that there are 3 sections of the interview that are relevant and 2 admissible. The parties will have to submit redacted video or transcripts to 3 comply with this order, or agree the interview will be admitted after 4 Miranda with minor deletion (i.e., prison). 5

"1. Defendant's admission that he is familiar with the area of 7th and 6 Skidmore because his sister lived in the area at the time of the 7 incident. 8
"2. Defendant's admission that he may have dated the deceased. 9
"3. Defendant's admission that he had a memory of other events on 10 or about the day of the incid ent, but generally no memory of that 11 time period." 12
As we understand the state's argument before this court
, the state contends 13
primarily that the trial court erred in excluding evidence of defendant's denials of 14
memory because those statements, if discre dited by the factfinder, would be relevant to 15
demonstrate defendant's guilty conscience: 16

"The circuit court * * * erroneously concluded that the factfinder 17 should be allowed to consider only the discrete statements in which 18 defendant admits knowledge or m emory of particular facts, and that the rest 19 of the interview must be redacted from the evidence that can be admitted at 20 trial. The court's ruling

-- which presumes that defendant's self

- serving 21 denials must be taken at face value

-- denies the factfinder the ability to 22 consider the broader context of those statements, and prevents the factfinder 23 from determining the credibility of the denials themselves." 24
Without commenting on the validity of that theory of relevance, we note that the state's 25

argument app ears to be based on a misinterpretation of the trial court's order. W e do not 26

understand that order to mandate that, except for the three se ctions described, the 27

re mainder of the interview must be excluded from evidence. Rather, we note that the 28

trial court's order is set out in wholly affirmative language and provides

-- in rejecting 29
defendant's argument that the entire interview is irrelevant

-- that at least three sections 3023

of the interview " are relevant

. " ( E mphasis added .) That statement does not, in itself, 1

mandate the conclusion that the remainder of the interview is irrelevant. Instead, in 2
ordering that "[t]he parties will have to submit redacted video or transcripts to comply 3

with this order, or a gree the interview will be admitted after Miranda with minor deletion 4
(i.e., prison)," (emphasis added), the trial court appears to have reserved judgment on the 5
admissibility of the remainder of the interview, pending the parties' submission of 6
proposed r edactions. The state's argument to this court is premature
, because the trial 7
court has not yet definitively ordered that any part of the interview be excluded. Indeed, 8
the trial court's conception of the likely redactions appears to anticipate certain a dditional 9
objections, unrelated to relevance, that defendant has not yet made

-- specifically, 10
constitutional objections to defendant's pre

- Miranda statements , and OEC 403 objections 11
to references that defendant had spent time in prison. 12

Furthermore, t o the extent that the state's argument focuses on the relevance 13

of defendant's statements that den i ed any memory of the time period at issue, we do not 14

understand the trial court's order to conclude that that evidence is irrelevant as an 15
evidentiary matter . The trial court described the third "section" of the interview that it 16

concluded to be relevant as "[d]efendant's admission that he had a memory of other 17
events on or about the day of the incident, but generally no memory of that time period

. " 18

( E mphasi s added

. ) T hat p a rt of the order appears to conclude that defendant's statements 19
regarding both his memory and lack of memory of that time period are relevant and 2024

admissible. 7 Thus, the trial court's order does not appear to exclude any evidence that the 1
state claims should be admitted; rather, it appears that the trial court either has not yet or 2
is not going to exclude that evidence. We decline to rule on a matter that the trial court 3
has not yet decided. 4

CONCLUSION 5
In summary, as to the "prior bad acts" evidence, we conclude that the state 6
did not adequately preserve for review the issue whether evidence of the May 6

- 7, 1994, 7
incident was admissible under OEC 404(3) to p rove proximity or flight. As to the 8
challenged evidence derived from defendant's interview with the police, we do not read 9

the trial court's order to requir e, as the state contends, the exclusion of the evidence that 10

the state seeks to admit. W e therefor e decline to rule on the state's substantive challenge 11

to that order. 12

The order s of the circuit court are affirmed
, and the case is remanded to the 13
circuit court for further proceedings. 14

7 We express no opinion on the merits of that determination, as defendant does not challenge it.