No. 139 February 28, 2024 193

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERVAN RONELL HERRING,

Defendant-Appellant.

Multnomah County Circuit Court

18CR34525; A174188

Benjamin N. Souede, Judge.

Argued and submitted August 17, 2022.

Zachary Lovett Mazer, Deputy Public Defender, argued 

the cause for appellant. Also on the briefs was Ernest G. 

Lannet, Chief Defender, Criminal Appellate Section, Office 

of Public Defense Services.

Patrick M. Ebbett, 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, Lagesen, Chief Judge, and

Powers, Judge.*

ORTEGA, P. J.

Reversed and remanded.

____________

* Lagesen, C. J., vice Hellman, J.
194 State v. Herring
Cite as 331 Or App 193 (2024) 195

ORTEGA, P. J.

Defendant appeals from a judgment of conviction 

for attempted first-degree assault with a firearm, unlawful use of a weapon with a firearm, and felon in possession 

of a firearm with a firearm in connection with a daytime 

shooting outside a Portland hospital.1 On appeal, defendant 

raises 11 assignments of error. The first eight challenge the 

trial court’s rulings admitting evidence of his gang affiliation under OEC 404(3), as relevant to showing his motive 

for the charged acts; the ninth challenges the denial of his 

motion for a new trial based on admission of the gang evidence; the tenth challenges the trial court’s admission of 

evidence found in his codefendant’s house; and the eleventh 

challenges the court’s instruction to the jury that it could 

convict defendant without reaching a unanimous verdict.

We agree with defendant that the trial court erred 

in admitting the state’s proffered evidence regarding his 

gang affiliation, because the state failed to meet its burden 

to establish that it was offering a theory of relevance for 

the evidence that does not depend on propensity reasoning. 

We further conclude that the error warrants reversal. Our 

disposition obviates the need to address defendant’s second 

through ninth and eleventh assignments of error. However, 

because it is likely to arise on remand, we address defendant’s tenth assignment and conclude that the trial court 

did not err. We therefore reverse and remand for further 

proceedings.

I. GANG EVIDENCE

A. Standard of Review

“OEC 404(3) is an inclusionary rule that allows 

trial courts to admit other-acts evidence on any theory of 

logical relevance that does not depend on propensity-based 

reasoning.” State v. Morrow, 299 Or App 31, 33, 448 P3d 

1176 (2019) (internal quotation and citations omitted). We 

review a trial court’s ruling to admit evidence of uncharged 

misconduct as relevant to a nonpropensity purpose under 

OEC 404(3) for errors of law and in light of the record that 

1 Defendant was jointly charged and tried with his brother, who waived jury 

and was acquitted on all charges by the trial court.
196 State v. Herring

was before the court at the time it made its decision. State v. 

Taylor, 326 Or App 396, 398, 532 P3d 502, rev allowed, 371 

Or 509 (2023).

B. Procedural and Historical Facts

The state filed a pretrial motion to “allow gang evidence” under OEC 404(3) and asked the court to conduct an 

OEC 104 hearing “to determine the admissibility of certain 

gang evidence” against defendant.2 In its motion, the state 

represented that defendant is a member of “a violent criminal gang” known as the Woodlawn Park Bloods and has been 

associated with that gang for at least 20 years; that defendant has criminal convictions related to his gang involvement; that the Woodlawn Park Bloods have “a longstanding 

violent feud with various Crip gang sets”; that the victim, S, 

has a longtime association with Crip gang members; and that 

S was convicted of killing defendant’s youngest brother, who 

had been an associate of the Woodlawn Park Bloods. The state 

further represented that, on the day of the shooting, defendant’s family member and gang associate was at the hospital receiving treatment for gunshot wounds; that S’s grandmother was also at the hospital; that defendant attempted 

to murder S as he walked into the hospital that afternoon; 

and that the hospital surveillance footage showed that codefendant was wearing black and red, and that S was wearing 

blue, color choices that reflected their gang affiliations.

The state explained in its motion that it was “seeking to admit defendant’s prior gang associations, prior crimes 

against rival gangsters, and prior crimes committed by the 

Woodlawn Park Blood gang and perpetrated against Crip 

[g]ang members” as well as “the victim’s prior gang associations, prior crimes against rival gangsters, and prior crimes 

committed by Crip [g]ang [m]embers against Woodlawn 

Park Blood gang members and/or associates” to show defendant’s motive for the charged act: “[D]efendant’s gang, the 

Woodlawn Park Bloods, are at war with the intended victim’s gang, the Crips, and they are hostile towards this class 

2 The state sought to admit gang evidence relating to both defendants, and 

many of the defense arguments were made by codefendant’s counsel, which defendant expressly joined. For simplicity, we refer to the evidence as relating to, and 

arguments made by, defendant only.
Cite as 331 Or App 193 (2024) 197

of victims, in addition to this particular named victim.” The 

state argued that, “[b]ecause the evidence is being presented 

to show motive and not impermissible character evidence, 

the defendants should not be allowed to insulate the trier of 

fact from their gang membership, gang tendencies, and violence their gangs perpetrate.” Specifically, the state argued 

that “the defendants’ gang association, the [codefendant’s] 

prior attempt to kill the victim, and the victim’s prior murder of the defendants’ gang associate and family member is 

relevant to prove that they had a similar motive when they 

attempted to murder [the victim].”

The state proffered that Officer Charles Asheim 

would “testify to the facts and circumstances of the defendants’ gang associations and prior assaults by the defendants and their gang,” which would be “coupled with the 

fact that the defendants and their fellow gang members 

were previously indicted and convicted with crimes related 

to this attack.”

Finally, the state argued that the probative value 

of the gang evidence was not substantially outweighed 

by unfair prejudice, because “without understanding the 

defendants’ gang association, gang lifestyle and their hostile 

motive toward this class of victims, the rival gang members, 

the jury might be misled because understanding an act like 

this will make no sense absent a full picture of modern gang 

rivalry and warfare.” The state explained that its

“purpose in offering this evidence is to prove why the defendants would attempt to gun down the victim in broad daylight as the victim walked into a hospital. A heinous event 

such as this is outside the norms of what a layperson can 

comprehend without attempting to understand the intricacies of modern gangs and gang warfare, specifically involving the Crips and the Woodlawn Park Bloods.”

At a hearing before Judge Roberts, the state reiterated its intent to offer gang evidence through the testimony 

of Asheim, “specifically to address the background with each 

one of these defendants as far as what is their gang affiliation, what does it mean to be a gang member, and then, more 

particularly, how is it applicable to the events that occur on 

[the date of the charged acts].” The state explained that the 
198 State v. Herring

evidence was important to understanding the events on 

the date of the charged acts, “in particular the rivalry, the 

intense kind of reasons behind why an individual who is a 

gang member would want to engage in this type of behavior, 

and look at it from that—through that lens.”

Defendant responded that it was “unclear” exactly 

what evidence the state was seeking to introduce, but that 

it appeared to be “a broad scope.” Defendant agreed that 

evidence that the victim had been convicted of killing one 

of his brothers was relevant and admissible motive evidence 

but argued that “all the gang history and gang rivalry and 

all this other speculation to it, is more propensity and painting the defendant in a bad light.” Defendant further argued 

that, because of the specific motive evidence regarding the 

victim’s murder of his youngest brother, the state’s need for 

the additional gang evidence was low and that the evidence 

was “extremely prejudicial” because “it really is propensity 

evidence by another name.”

The state replied that “motive is a huge factor 

because understanding for the everyday juror why would 

someone in daylight at a hospital start trying to shoot and 

kill another person is a very important fact,” that “understanding the dynamics that go into gang warfare, modern 

gang warfare, the rivalry that goes on with that, the longstanding disputes, why that is so volatile and violent is the 

motive that is behind this,” and that it “intends to bring in 

this expert witness to provide the background information 

that is necessary to understand that.”

After confirming that the state was not offering the 

evidence for propensity, the court ruled that the gang evidence was relevant to motive:

“A relevant purpose of evidence showing gang membership, showing gang rivalry in general between the two 

gangs, and showing that that rivalry in the gang culture 

is expressed in terms of, ‘He shoots at us, we shoot at him,’ 

that sort of thing.

“That much seems to me relevant evidence to explain 

why—the State’s version of why this episode occurred, and 

why the defendants would be people who have a motive to 

engage in it.
Cite as 331 Or App 193 (2024) 199

“The fact that they have another personal motive, 

because [the victim killed] their brother, doesn’t make it 

not relevant.”

The court further ruled that the probative value of the 

evidence outweighed the danger for unfair prejudice but 

explained that it intended “that the evidence be tailored to 

minimize any such unnecessary prejudice” once the state 

submitted an offer of proof of Officer Asheim’s testimony at 

an OEC 104 hearing. The court concluded that, “in general 

for both sides, the evidence that I would admit is, first of all, 

gang membership of the parties believed to be involved; the 

existence of the rivalry between those gangs; gang culture; 

[and] establishing the kind of way that rivalry is expressed 

in terms of violence” but that it “would not allow specific bad 

acts by individuals.”

The case was later reassigned to Judge Souede, who 

reviewed and expressly adopted Judge Roberts’s reasoning 

and ruling on the record before the state put on an offer of 

proof of Asheim’s expert testimony. The court then ruled on 

the admissibility of specific elements of Asheim’s testimony 

under OEC 404(3) and OEC 403 in response to defendant’s 

additional objections and argument that the state was 

attempting to build a “gang profile.”

At trial, the state presented largely circumstantial 

evidence of the charged acts that consisted of testimony by 

eyewitnesses and police experts, as well as hospital surveillance footage. The surveillance footage did not capture the 

shooting itself but clearly shows defendant, who was wearing all black, and codefendant entering the hospital that 

afternoon and returning to the parking lot minutes before 

the shooting, as well as the victim running into the hospital 

immediately after the shooting. A police detective compiled 

footage from the parking lot and opined as to the movements 

of defendant and three cars he believed were associated with 

defendant, including a black Mercedes, before and after the 

shooting.

The victim, who was convicted in 2002 of firstdegree manslaughter for the 1997 killing of defendant’s 

brother, initially confirmed that he ran inside the hospital 

when he heard shooting and did not see who was shooting 
200 State v. Herring

at him. He then testified that he did not hear gunshots but 

rather heard what sounded like firecrackers and that he just 

“heard noise and ran.” Three eyewitnesses described seeing 

a Black man in dark clothes shoot at the victim, who ran 

toward the hospital emergency room. One of those eyewitnesses, a paramedic, wrote down the license plate number 

of the black Mercedes that he saw the shooter drive away 

in and later reported it to police. A hospital employee heard 

gunshots and saw two vehicles leave the parking lot and 

shell casings in the area where those vehicles had been. No 

witness identified defendant as the shooter.

When police arrived, officers found six .40 caliber 

shell casings in the parking lot and two bullet strikes on 

the hospital building. Forensic analysis of the casings determined that they were all fired from the same gun, likely 

a Glock. Three months after the shooting, police found a 

Glock handgun, several Glock magazines of various sizes, 

a Glock box, and .40 caliber ammunition in codefendant’s 

home. The Glock handgun did not match the serial number 

on the Glock box or the shell casings found at the hospital. 

Police also found several red Washington Nationals hats in 

the trunk of codefendant’s car and in defendant’s home.

The day before the shooting, defendant’s wife had 

obtained a loaner car from a Mercedes dealer with the same 

license plate number the paramedic had reported to police. 

Defendant had previously been convicted of a felony.

Asheim, who has worked on gang enforcement 

teams for eight-and-a-half years and has received training 

about gang intelligence and enforcement at regional and 

national conferences put on by professional associations, 

the Oregon Department of Justice, and the United States 

Department of Justice, testified to the following facts and 

opinions at trial. Asheim builds intelligence about criminal 

organizations in the City of Portland by sharing information 

with other gang investigators, proactively patrolling areas 

where gang crimes have been committed or gang members congregate, and talking to people involved in gangs. 

Asheim’s team has investigated more than 1,000 incidents 

of gang violence, and well over 90 percent of those incidents 

involve firearms.
Cite as 331 Or App 193 (2024) 201

According to Asheim, gangs are “street organizations” or criminal organizations that are a subset of all 

criminals. He opined that gangs hold different values than 

people who are not involved in crimes and live by specific 

codes and ethics, including showing allegiance to their 

members and sharing common culture, symbolisms, and 

alliances. Gang subsets or “sets” also have specific symbolisms, such as tattoos and baseball hats, that identify them 

and their allegiance within the larger organization. Asheim 

explained that gangs “preach” loyalty and respect to their 

members and noted that, in his experience, gang members 

usually do not cooperate with law enforcement and do not 

want to be named in police reports, because people that have 

been known to talk to police are later murdered for doing so.

According to Asheim, all criminal gangs gain power 

and notoriety through the willingness to do violence. Senior 

ranking gang members, known as “Original Gangsters” or 

“OGs,” are longtime members that have “survived,” continue 

to show allegiance to the gang, and hold a position of authority and respect. He explained that “gangsters” or “Gs” are 

members who are willing to go out and “ride” for the gang, 

that is, do violence and shootings for the gang, which gains 

them power and respect within the gang and from allied 

gangs. According Asheim, gang members commonly have a 

“hood name” or “street name” that they go by within the 

criminal organization. Such aliases have a lineage, beginning with the “Big Homey” who started out with the name, 

followed by others who follow under that lineage, who may 

be called “Little,” “Baby,” and “Tiny.”

Asheim explained that the Bloods and Crips are 

gangs based in Los Angeles that have operated in Portland 

since the 1980s. The Woodlawn Park Bloods and Kirby Blocc 

Crips are local Portland gang sets within their respective 

larger organizations and are rivals. They historically were 

based around a geographical neighborhood but that has 

changed with gentrification. The original rivalry between 

the Woodlawn Park Bloods and Kirby Blocc Crips goes back 

30 years, according to Asheim, and has involved homicides.

Bloods wear red and Crips wear blue. Asheim noted 

that the Woodlawn Park Bloods favor Washington Nationals 
202 State v. Herring

hats or “dub caps,” and Kirby Blocc Crips like Kansas City 

Royals hats. Displaying “CK,” which stands for “Crip Killer,” 

or “BK,” which stands for “Blood Killer,” shows that the person 

has killed someone or is “about killing their enemy,” according 

to Asheim, and therefore shows disrespect to an enemy gang 

and promotes violence the person’s gang needs to gain power.

Asheim opined that defendant and codefendant are 

both members of the Woodlawn Park Bloods3 and that the 

victim was a member of the Kirby Blocc Crips in the 1990s. 

Defendant’s “hood name” is “Foxxy” or “Big Foxxy.” Asheim 

described the significance of several of defendant’s tattoos: 

“Original” is tattooed across his stomach, which shows that 

he is an “OG” in the Woodlawn Park Bloods and takes pride 

in that status; two “rest in peace” tattoos on defendant’s 

left arm memorialize slain gang members, including his 

brother; “Woodlawn” is tattooed from shoulder to shoulder 

on defendant’s back, which shows the depth of his allegiance 

to the gang; and “Foxxy” is tattooed on defendant’s right 

arm above a grim reaper holding an hourglass.

The jury found defendant guilty of attempted firstdegree assault with a firearm and unlawful use of a firearm with a firearm. The trial court found him guilty of felon 

in possession of a firearm with a firearm and later denied 

defendant’s motion for a new trial. This appeal followed.

In his first assignment of error, defendant challenges the trial court’s ruling admitting gang evidence to 

prove motive. We understand that assignment to focus on 

the court’s pretrial ruling admitting evidence of the parties’ 

gang membership, the existence of a violent rivalry between 

defendant’s gang and the victim’s gang, and gang “culture.” 

Because we agree that that ruling was in error, we do not 

address defendant’s second through eighth assignments 

that challenge particular aspects of Asheim’s testimony and 

related exhibits, or his ninth assignment of error relating to 

his motion for a new trial.

3 After Asheim’s testimony, defendant stipulated that he became a member 

of the Woodlawn Park Bloods in 1998 at the age of 15 and remained a member 

at the time of trial. He proposed that stipulation to forestall the state calling a 

second police gang expert to provide testimony about defendant’s specific history 

of gang activity.
Cite as 331 Or App 193 (2024) 203

C. OEC 404(3) Framework

Evidence is relevant if it has “any tendency to make 

the existence of any fact that is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” OEC 401. Relevant evidence is generally admissible unless it is prohibited by law 

or another provision in the Oregon Evidence Code. OEC 

402. One such limitation is OEC 404(3), which 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.”

“In evidence law, ‘character’ means a person’s disposition or propensity to engage or not to engage in certain 

types of behavior.” State v. Jackson, 368 Or 705, 716, 498 P3d 

788 (2021) (internal quotation marks and citations omitted). 

Under OEC 404(3), uncharged misconduct evidence may not 

be used “to argue that the defendant has either a general 

propensity to engage in misconduct or a specific propensity to engage in misconduct like the charged crime and, 

therefore, it is more likely that the defendant committed the 

charged crime.” State v. Skillicorn, 367 Or 464, 476, 479 P3d 

254 (2021). Evidence of a person’s character is not prohibited 

because character is irrelevant, but rather to “protect the 

fairness of trials and the accuracy of verdicts,” because such 

evidence “is unfairly prejudicial and likely to be overvalued” 

by the finder of fact. Id. at 477-78.

OEC 404(3) further provides, however, that uncharged

misconduct evidence “may *** be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident.” “The proponent of the evidence ‘has the burden of 

showing that the proffered evidence is relevant and probative of some noncharacter purpose.’” Jackson, 368 Or at 716 

(quoting State v. Pitt, 352 Or 566, 576, 293 P3d 1002 (2012)). 

In determining admissibility, the court must “focus on the 

proponent’s theory of relevance that connects the evidence to 

the fact of consequence.” Id. at 717. “Whether evidence has a 

noncharacter purpose is not determined solely by assessing 

whether the ultimate fact that the proponent seeks to prove 

is a fact about a person’s character or propensity to commit 
204 State v. Herring

crimes.” Id. at 716-17. Rather, “evidence may also be inadmissible, regardless of the ultimate fact to be proved, whenever the chain of logical relevance connecting the evidence 

to the fact it is proffered to prove relies on an inference relating to a person’s character or propensities.” Id. at 717 (internal quotation marks, citations, and brackets omitted). Put 

another way, OEC 404(3) precludes admission of evidence if 

the proponent’s theory of relevance requires the factfinder to 

employ “propensity reasoning,” which requires the factfinder 

“to rely on an inference about the defendant’s bad character 

and resultant propensity to commit criminal acts[] at any

link in the chain of logical relevance.” Id. (Emphasis added.); 

see also Skillicorn, 367 Or at 482-83 (explaining that OEC 

404(3) prohibits the admission of propensity evidence “even 

if the proponent asserts that it is being offered to prove, for 

example, ‘intent’ or ‘absence of mistake or accident’”).

D. Motive Evidence

Here, the state offered, and trial court admitted, 

the gang evidence as relevant to prove defendant’s motive 

in committing the charged acts. 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.” State v. 

Hampton, 317 Or 251, 257 n 12, 855 P2d 621 (1993) (citation 

omitted). It is “a relevant circumstantial fact that refers to 

why a defendant did what [they] did.” Id. Although motive 

“generally need not be established by the prosecution to 

prove guilt,” it is “often pertinent as the basis to infer that 

the act was committed, or to prove the requisite mental 

state, or to prove the identity of the actor.” Id.

We have explained that motive evidence “includes 

instances where the other-acts evidence directly supplies 

the motive for the charged crime, amounting to a cause-andeffect relationship,” as well as instances where “the otheracts [evidence] and the charged crime are both explainable 

as a result of the same motive.” State v. Tinoco-Camarena, 

311 Or App 295, 302-03, 489 P3d 572, rev den, 368 Or 561 

(2021) (internal quotation marks and citations omitted). 

But “[n]o 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 
Cite as 331 Or App 193 (2024) 205

on impermissible character inferences.” Id. at 303; see also 

Hampton, 317 Or at 257 n 12 (“Of course, courts must be on 

guard to prevent the motive label from being used to smuggle forbidden evidence of propensity to the jury.” (Internal 

quotation marks and citation omitted.)); State v. Davis, 290 

Or App 244, 252, 414 P3d 887 (2018) (“Courts must be cautious in admitting evidence that is ostensibly for the purpose 

of showing ‘motive,’ but that may, in reality, depend for its 

relevance on an inference about the defendant’s character.”).

We have acknowledged “how difficult it sometimes 

is to distinguish between motive and character evidence,” 

Morrow, 290 Or App at 43, and have noted that “most 

admissible other-acts evidence will carry both a character inference and a noncharacter inference,” Taylor, 326 

Or App at 403 n 1. “[A] crucial difference between permissible motive-based reasoning and a character-based theory of 

motive is that the former [permissible reasoning] assumes 

that a motive might exist because any person might possess one under those specific circumstances” whereas the 

latter impermissible reasoning “is based on inferred behavioral disposition or propensities and it 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.” Davis, 290 

Or App at 252-53 (emphasis in Davis; internal quotation 

marks and citations omitted). Ultimately, “the state has the 

burden of identifying a chain of logical relevance connecting” the uncharged misconduct evidence to a motive to commit the charged acts “without relying on inferences about 

[the] defendant’s bad character and propensity to commit 

criminal acts.” Jackson, 368 Or at 717.

E. Discussion

With those legal principles in mind, we first pause 

to note what is not at issue on appeal: whether the fact that 

the victim killed defendant’s youngest brother is relevant 

and admissible to show defendant’s motive to commit the 

charged acts. Although the state included that evidence 

in its motion to admit gang evidence, defendant conceded 

that that particular evidence was relevant and admissible 
206 State v. Herring

motive evidence, and the trial court’s ruling at issue on 

appeal admitted different evidence (the parties are members of rival gangs that express their rivalry through violence, and “gang culture”) to prove a different motive (the 

state’s broader theory of “why the defendants would attempt 

to gun down the victim in broad daylight as the victim 

walked into a hospital”). That is clear from the trial court’s 

express ruling that the gang evidence is relevant to motive 

even if defendant has “another personal motive” as a result 

of his brother’s killing.4

Properly understood, the evidence of defendant’s 

uncharged misconduct at issue on appeal is his membership 

in the Woodlawn Park Bloods. The additional gang evidence 

that the trial court admitted (evidence of the violent rivalry 

between defendant’s gang and the victim’s gang and evidence of “gang culture”) gives context and meaning to defendant’s gang membership; thus, the relevance of defendant’s 

gang membership also depends on the context and meaning 

with which the additional evidence imbued it.5

We turn to the state’s theory of relevance that the 

trial court adopted in admitting the gang evidence and to 

the parties’ arguments on appeal. The state offered the 

gang evidence to show that defendant held a hostile motive 

toward the class of victims to which the victim belongs, viz., 

a member of a rival gang. As noted, the trial court admitted 

“evidence showing gang membership, showing gang rivalry 

in general between the two gangs, and showing that that 

rivalry in the gang culture is expressed in terms of, [violence]” to explain “the State’s version of why this episode 

4 We also note that, while the state’s theory of relevance for that “personal 

motive” evidence regarding the specific animosity between defendant and the 

victim is ostensibly gang-related, its relevance does not necessarily depend on the 

gang evidence: The victim killed defendant’s brother; defendant was motivated 

to avenge his brother’s death; therefore, defendant was more likely to have committed the charged act and to have done so with the requisite mental state. We 

express no opinion as to whether evidence of defendant’s gang membership may 

be relevant and admissible under OEC 404(3) to show that motive because the 

state’s theory of relevance was not limited to that motive.

5 Indeed, the state argues that “providing Asheim’s opinion that defendant 

was a member of a gang at war with the victim’s gang would be virtually meaningless without contextual information about the gangs, their violent rivalries, 

and the hierarchies in which they operated.”
Cite as 331 Or App 193 (2024) 207

occurred, and why the defendants would be people who have 

a motive to engage in it.”

On appeal, the state contends that “evidence of 

the gang associations of the defendants and the victim, 

the history of the violent rivalry, as well as the particular 

circumstances of the shooting itself, allowed the inference 

that defendant’s affiliation with the Woodlawn Park Bloods 

showed a potential hostile motive to commit the charged 

crimes” and that “[t]he inference that defendant’s actions 

were motivated in part by the gang rivalry was ** * a logical one on this record.” The state relies on cases holding 

that evidence demonstrating a defendant’s hostility toward 

a class of persons to which the victim belongs has “special 

relevance to the issue of a hostile motive.” State v. Moen, 309 

Or 45, 68, 786, P2d 111 (1990); see also State v. Tena, 362 

Or 514, 521-23, 413 P3d 175 (2018) (holding that the logical 

relevance of other-acts evidence under a hostile motive theory that does not involve the same victim “requires proof 

that the motive for committing the other acts was that the 

other persons were members of the class to which the victim 

belongs”); State v. Turnidge (S059155), 359 Or 364, 447-53, 

374 P3d 853 (2016) (holding that evidence of the defendant’s 

expression of anti-establishment and anti-law enforcement 

views was logically relevant to demonstrate his motive to 

plant a bomb that would result in killing law enforcement 

officers).

While that premise may be true, the state’s argument ends there, and it does not attempt to meet its burden to articulate the logical chain of inferences required to 

infer from defendant’s membership in the Woodlawn Park 

Bloods his hostile motive toward Crips in general. That is, 

the state fails to grapple with the legal standard articulated 

in Skillicorn and reaffirmed in Jackson that “[w]hether evidence has a noncharacter purpose is not determined solely 

by assessing whether the ultimate fact that the proponent 

seeks to prove is a fact about a person’s character or propensity to commit crimes.” Jackson, 368 Or at 716-17; Skillicorn, 

367 Or at 476 (“Evidence is barred by OEC 404(3) if the 

chain of logical relevance connecting the evidence to the 

fact it is proffered to prove relies on an inference relating 
208 State v. Herring

to a person’s character or propensities” (internal quotation 

marks, brackets, and citations omitted)). To the extent that 

the state argues that uncharged misconduct evidence is 

admissible under OEC 404(3) if it is relevant to prove an 

ultimate nonpropensity purpose, such as motive, regardless 

of whether the chain of intermediate inferences relies on 

propensity reasoning, we reject that argument as irreconcilable with Jackson and Skillicorn. OEC 404(3) precludes 

character evidence, even if it is highly probative, because 

it is unfairly prejudicial and likely to be overvalued by the 

factfinder. Skillicorn, 367 Or at 477-82; see also Morrow, 299 

Or App at 41 (“[C]haracter evidence is generally excluded 

‘despite its admitted probative value,’ so as to ‘prevent confusion of issues, unfair surprise and undue prejudice.’” 

(emphasis in Morrow) (quoting Michelson v. United States, 

335 US 469, 475-76, 69 S Ct 213, 93 L Ed 168 (1948)).

For his part, defendant primarily argues that the 

state’s theory of relevance for the gang evidence relies on an 

impermissible propensity inference: that defendant belongs 

to a group of people (the Woodlawn Park Bloods) who behave 

violently, and therefore defendant behaved violently on the 

date of the charged acts. In support of his position, defendant points to our decision in State v. Haugen, 274 Or App 

127, 360 P3d 560 (2015), rev’d on other grounds, 361 Or 284, 

392 P3d 306 (2017), which addressed the admissibility of the 

defendant’s gang membership to prove motive. Because we 

agree that Haugen is instructive, we turn to that case now.

In Haugen, the defendant and another man, Rives, 

assaulted the victim after Rives confirmed that the victim 

knew a former member of the Vagos Motorcycle Club who 

had become a “snitch” by testifying against other Vagos 

members several years earlier. 274 Or App at 128 and 

n 1. The defendant and Rives wore green attire that bore 

assorted Vagos logos. Id. The defendant moved to exclude as 

inadmissible character evidence two categories of evidence, 

both consisting of Vagos-related images and paraphernalia: 

(1) various Vagos gang imagery that the state had obtained 

from the internet exemplifying the group’s beliefs, including hostility toward “snitches” and loyalty to the group (the 

internet evidence), and (2) photographs from Rives’s home 
Cite as 331 Or App 193 (2024) 209

depicting clothes with Vagos mottos and patches and a room 

with green walls featuring a symbol signifying Rives’s gang 

name (the Rives evidence). Id. at 132-33. The state argued 

that the evidence was admissible to prove the defendant’s 

motive because it showed the Vagos “belief system” or “creed” 

that Vagos members “live by,” and that the defendant, a 

self-identified and “patched” Vagos member, held that belief 

system, including loyalty to the gang and hostility toward 

“snitches.” Id. at 134-35. The trial court denied the motion, 

explaining that the Vagos gang evidence showed that the 

defendant was a Vagos member and had a motive for the 

assault based on that membership, and that the state was 

entitled to present evidence about the Vagos “lifestyle” and 

“credo” regarding loyalty to the organization and its “antisnitch” philosophy. Id. at 135-36. The trial court concluded 

that the evidence “is character evidence, but it’s relevant 

character evidence.” Id. at 137.

On appeal, the state offered the following theory of 

relevance as to the defendant’s motive to assault the victim: “Vagos hate snitches and are loyal to one another, both 

Rives and [the] defendant were Vagos members, Rives had 

a problem with the victim because the victim was friends 

with a snitch, and [the] defendant initiated the assault on 

the victim out of loyalty to Rives.” Id. at 151-52. In other 

words, the state “wanted the jury to infer from the fact that 

[the] defendant had joined a group holding particular beliefs 

that he held those beliefs himself,” which motivated him to 

commit the charged assault. Id. at 152.

Beginning with the internet evidence, we first concluded that that evidence was relevant to the defendant’s 

motive because it was “illustrative of the Vagos belief system, including the importance of being loyal to gang ‘brothers’ and taking violent action against ‘snitches’” and “thus 

tends to explain why [the] defendant, a self-described Vagos 

member, would have felt justified in assaulting the victim, 

who was a friend of a ‘snitch.’” Id. at 153. In reaching that 

conclusion, we rejected the defendant’s argument that the 

internet evidence was irrelevant because the state had 

failed to establish a connection between the proffered evidence and the defendant. Id. at 151-52. We reasoned that “if 
210 State v. Herring

a person belongs to a defined group, evidence of that group’s 

beliefs or tenets may be admissible to show that the person acted in accordance with those beliefs or tenets, ‘even 

without proof’ that the person has specifically or expressly 

adopted them.” Id. at 152 (quoting United States v. Abel, 469 

US 45, 52-53, 105 S Ct 465, 83 L Ed 2d 450 (1984)).6

We then concluded that the internet evidence was 

character evidence. We explained:

“In offering evidence of the Vagos’ tenets, the state urged 

an inference that, because [the] defendant was a member 

of the Vagos, [the] defendant had personally adopted those 

tenets and lived by them. The state wanted the jury to conclude that [the] defendant acted in accordance with those 

tenets in committing the assault. Because the state offered 

the internet evidence to convince the jury that [the] defendant’s behavior on a specific occasion conformed to a set of 

beliefs or values that [the] defendant held, that evidence 

was character evidence of [the] defendant’s motive.”

Id. at 155. In so concluding, we rejected the state’s argument 

that, because the internet evidence was offered to prove that 

the defendant acted out of loyalty to a particular person at 

a particular time rather than to prove that he is a loyal person in all varying situations in life, it was not character evidence at all. Id. at 154 (“In our view, the state defines character evidence too narrowly.”).7

 Finally, we concluded that 

6 As defendant points out, Abel did not involve the admissibility of uncharged 

misconduct evidence or of gang affiliation as substantive evidence of guilt, but 

rather held that evidence of the defendant’s and a defense witness’s membership 

in the same gang—and the tenets of the gang—were relevant and admissible to 

prove the defense witness’s possible bias in favor of the defendant. 469 US at 52 

(“A witness’ and a party’s common membership in an organization, even without 

proof that the witness or party has personally adopted its tenets, is certainly 

probative of bias.”); see also id. at 53 (“For purposes of the law of evidence the jury 

may be permitted to draw an inference of subscription to the tenets of the organization from membership alone.”). We noted that Abel was “persuasive authority 

for this court in applying the Oregon rules of evidence.” Haugen, 274 Or App at 

152 n 9.

7 In Haugen, we ultimately concluded that the internet evidence was admissible as propensity evidence under OEC 404(4) based on our reading of State v. 

Williams, 357 Or 1, 24, 346 P3d 455 (2015), that OEC 404(4) “supersedes” OEC 

404(3) in criminal cases. 274 Or App at 155-56. However, State v. Baughman, 

361 Or 386, 403-04, 393 P3d 1132 (2017), later clarified that OEC 404(4) does 

not entirely supersede OEC 404(3), but rather supersedes only the first sentence 

in OEC 404(3). That is, Baughman clarified that in criminal cases OEC 404(4) 

“makes other acts evidence admissible to prove a defendant’s character, subject to 
Cite as 331 Or App 193 (2024) 211

the Rives evidence was irrelevant to the defendant’s motive 

because, “even if we agree with the state’s theory as to why 

evidence of the Vagos belief system was generally relevant to 

explain [the] defendant’s motive,” the Rives evidence “indicates only the strength of Rives’s own commitment; it tells 

us nothing about [the] defendant’s commitment.” Id. at 158.8

Although in Haugen we concluded that the internet evidence was character evidence because it was offered 

“to convince the jury that [the] defendant’s behavior on a 

specific occasion conformed to a set of beliefs or values that 

[the] defendant held,” we observe that another intermediate 

inference in the logical chain of relevance also employed propensity reasoning: that a person’s membership in a defined 

group may establish that the person acted in accordance 

with the group’s beliefs or tenets, even absent evidence 

that the person has specifically or expressly adopted them. 

Both of those inferences relied on an inference about the 

defendant’s character, that is, his “disposition or propensity 

to engage or not engage in certain types of behavior”: his 

gang membership meant that he had a disposition to adopt 

his gang’s beliefs and tenets, and holding those beliefs and 

tenets meant that he had a disposition to engage in violent 

behavior toward certain people in loyalty to his gang.

With that understanding of our holding in Haugen,

we conclude that, under the circumstances of this case, 

the state’s theory of relevance for the gang evidence that 

the trial court admitted to show defendant’s hostile motive 

required the factfinder to employ impermissible propensity 

reasoning. The state offered evidence that (1) defendant is 

a longtime member of a particular group, the Woodlawn 

Park Bloods, (2) the group is criminal organization that is 

involved in a decades-long and ongoing violent rivalry with 

another criminal organization, the Crips, a rivalry that the 

state described as “modern gang warfare,” and (3) the gang’s 

specified rules of evidence and the state and federal constitutions.” Id. (Emphasis 

in original.) When the uncharged misconduct is not offered for a propensity purpose, “analysis under OEC 404(4) is unnecessary; the evidence ‘may be admissible’ under the second sentence of OEC 404(3).” Id. at 404.

8 The Supreme Court later granted review and reversed our decision on a 

separate legal issue about eyewitness identification. State v. Haugen, 361 Or 284, 

392 P3d 306 (2017).
212 State v. Herring

criminal “culture” consists of certain “tendencies,” “lifestyle,” and the perpetration of violence out of loyalty to the 

gang. To infer from that evidence that “defendant’s actions 

were motivated in part by the gang rivalry,” requires two 

intermediate inferences: (1) because defendant is a member 

of the gang, defendant has personally adopted its criminal 

tendencies and lifestyle, including the violent rivalry with 

Crips members, and (2) because he has adopted his gang’s 

tendencies and lifestyle, defendant has a propensity to 

commit violent acts generally and against Crips members 

in particular. The state wanted the factfinder to conclude 

that defendant acted in accordance with his adherence 

to his gang’s rivalry with the victim’s gang and to violent 

gang “culture” in committing the charged acts. Notably, the 

state’s theory of relevance did not assume that defendant’s 

“tendency to have such a motive is simply human” but rather 

assumed that defendant “is more inclined to act or think in 

a given way than is typical” because he is a gang member. 

Davis, 290 Or App at 252-53 (emphasis in Davis; internal 

quotation marks and citation omitted).

The state thus offered the gang evidence to persuade the factfinder that “it is more likely that [] defendant 

committed the charged crime” because defendant’s gang 

membership means that he has both “a general propensity to 

engage in misconduct” and “a specific propensity to engage 

in misconduct like the charged crime.” Skillicorn, 367 Or at 

476. We therefore conclude that the state’s theory of relevance employed impermissible propensity-based reasoning, 

because it required the factfinder “to rely on an inference 

about the defendant’s bad character and resultant propensity to commit criminal acts.” Jackson, 368 Or at 717.9

 The 

trial court erred in admitting the gang evidence.

In this case, defendant asserts, and we agree, that 

the admission of the evidence of defendant’s gang membership, the history of the violent rivalry between defendant’s 

9 Although we do not address the admissibility of the specific pieces of gang 

evidence challenged in defendant’s second through eighth assignments of error, 

we note that the same analysis would apply: If the state’s theory of relevance for 

a piece of uncharged misconduct evidence relies on an inference that defendant is 

a gang member and therefore acted in conformity with his disposition as a gang 

member, it employs impermissible propensity reasoning and is not admissible 

under OEC 404(3), regardless of the ultimate fact for which it is offered to prove.
Cite as 331 Or App 193 (2024) 213

gang and the victim’s gang, and gang “culture” warrants 

reversal. We may affirm despite error only if there is “little likelihood that the particular error affected the verdict.” 

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). When a 

defendant is convicted after a trial in which uncharged misconduct evidence was admitted, we look to the trial record to 

determine whether the error in admitting that evidence was 

prejudicial. Morrow, 299 Or App at 40.

The state emphasized defendant’s motive arising 

from the “deep and bitter rivalry between long-term gangs 

in Portland” and “historical gang violence” in its arguments 

to the jury and used his gang membership as propensity 

evidence. In its opening statement, the state explained that 

Asheim would explain “what that rivalry is” and “what it 

means” and that “[w]hen you have Woodlawn Park Blood 

and Crips * ** what happens between them? It certainly isn’t 

just gentle street boxing” but rather “lots of shootings * ** 

between these groups” that “result in homicides.” In closing, 

the state invited the jury to “see the commitment that [defendant] has to the Woodlawn Blood gang” to infer his motive. 

And the state’s final rebuttal argument urged the jury to 

“stand up and * * * tell [defendant] his Blood vendetta, his 

gang rivalry that he tried to play out in that parking lot at 

our community hospital, that’s a crime. It’s unacceptable. 

It’s unacceptable and a crime for him to continue this gang 

rivalry by trying to gun down [the victim]. *** Tell him all of 

this with four words: Guilty, guilty, guilty, guilty.” Further, 

the state presented Asheim as a gang expert, emphasizing 

his unique training and experience that likely would have 

given his testimony greater weight with the jury than lay 

testimony. See State v. Norby, 218 Or App 609, 620, 180 P3d 

752 (2008) (witness’s status as a “neutral professional” likely 

gave her testimony “greater weigh in the jury’s eyes”).

Although defendant waived jury on Count 5, the 

state presented the same evidence to the court on that 

count and relied on its arguments to the jury to establish 

that defendant possessed a firearm. Further, the court’s 

repeated limiting instruction did not cure the error, because 

“[t]o instruct that other acts may be considered only for purpose of motive * ** does not avoid the problem if propensity 
214 State v. Herring

is the implicit link between” the other acts and the motive. 

Tinoco-Camarena, 311 Or App at 307 n 11. We cannot conclude that the gang evidence had little likelihood to affect 

the verdict, particularly given the circumstantial nature of 

the state’s case. See State v. Hargrove, 327 Or App 437, 448, 

536 P3d 612 (2023). For those reasons, we conclude that the 

error warrants reversal on all counts.

II. EVIDENCE FOUND IN CODEFENDANT’S HOUSE

Finally, because the issue is likely to arise on 

remand, we address defendant’s tenth of assignment of error. 

Defendant argues that the trial court erred by admitting 

evidence of a gun, a holster, an empty gun box, ammunition, and a magazine that were found in codefendant’s home 

three months after the shooting. Alternatively, defendant 

argues that if the evidence met the low relevancy threshold, 

the trial court should have excluded it under OEC 403.

Defendant argues that the evidence found in

codefendant’s home is not relevant, because it is not reasonable to infer from that evidence that defendant more 

likely engaged in the shooting. The state contends that the 

evidence was relevant to its theory that defendant shot at 

the victim with a .40 caliber handgun he retrieved from 

the trunk of codefendant’s car in the hospital parking lot, 

because it is reasonable to infer that the empty gun box 

found in codefendant’s home had once held the .40 caliber 

gun used in the shooting—a gun that was not recovered by 

the state. In defendant’s view, the state’s theory that defendant retrieved the gun from codefendant’s trunk is not supported by the record, and the state’s theory that the gun box 

must have belonged to a second Glock that defendant used 

in the shooting amounts to “sheer speculation.”

“‘Relevant evidence’ means evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” OEC 401. 

Under that provision, “[e]vidence is relevant so long as the 

inference desired by the proponent is reasonable, even if the 

evidence also could support a contradictory inference.” State 

v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999). We conclude 
Cite as 331 Or App 193 (2024) 215

that the evidence meets the “very low threshold” for relevancy. State v. Gibson, 299 Or App 582, 588, 451 P3d 259 

(2019), rev den, 366 Or 691 (2020).

The state’s theory is that: (1) defendant retrieved a 

.40 caliber Glock from codefendant’s trunk on the day of the 

shooting; (2) the empty .40 caliber Glock gun box found in 

codefendant’s house three months later did not match the .40 

caliber Glock also found in codefendant’s house; and therefore (3) the empty gun box at one time held the .40 caliber 

Glock defendant retrieved from codefendant’s trunk on the 

day of the shooting. In support of its theory, the state represented that hospital surveillance videos showed defendant 

and codefendant in the hospital together and also showed 

defendant standing alone at codefendant’s car trunk in the 

parking lot. The state also represented that an expert would 

testify that shell casings from a .40 caliber handgun were 

found at the scene, and that the gun box was manufactured 

for a .40-caliber Glock and did not match the .40 caliber 

Glock found in codefendant’s house. While the third step in 

the logical chain does not necessarily follow from the first 

two steps—indeed, it may not even be the most probable 

inference—it possibly and plausibly follows. A reasonable 

factfinder could therefore infer from that evidence that it 

was more likely that defendant used codefendant’s gun in 

the shooting.

Defendant next contends that, even if the gun box 

and related items are relevant, the trial court should have 

excluded the evidence under OEC 403, because the evidence 

had minimal probative value and was highly prejudicial 

given “the inherently speculative nature of the necessary 

inferences” to connect the evidence to the shooting.

We conclude that the trial court did not err. The 

court determined that the probative value of the evidence—

its relevance to the state’s theory that codefendant provided defendant with a gun—was not outweighed by unfair 

prejudice, because the evidence was found in codefendant’s 

home, not defendant’s, so the jury would not draw negative 

inferences about defendant possessing gun paraphernalia 

at home. Given our conclusion that the evidence is relevant 

without resort to speculation, we are not persuaded that the 
216 State v. Herring

trial court abused its discretion in admitting the evidence. 

See Gibson, 299 Or App at 589 (“In evaluating a trial court’s 

discretionary ruling under OEC 403, our role is to assess 

whether the court’s decision falls within the range of legally 

permissible choices.”).

Reversed and remanded.