S058190, Opinion — State v. Salas-Juarez

419
Argued and submitted September 13, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings December 16, 2010
STATE OF OREGON,
Respondent on Review,
v.
LUIS ALBERTO SALAS-JUAREZ,
Petitioner on Review.
(CC 063530FE; CA A135010; SC S058190)
245P3d113

420 	State v. Salas-Juarez
C.JS, Criminal Law§ 716.
En Banc
On review from the Court of Appeals.*
Brian Patrick Conry, Portland, argued the cause and filed
the brief for petitioner on review.
Joanna L. Jenkins, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief was John R. Kroger, Attorney General.
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court is 	reversed, 	and 	the case is
remanded to the circuit court for further proceedings.
* Appeal from Jackson County Circuit Court, Raymond B. White, ,Judge. 230
Or App 580, 217 P3d 264 (2009).

Cite as 349 Or 419 	421
GILLETTE, J.
The issue in this criminal case is whether the trial
court erred in refusing to allow the jury to hear that a partic-
ipant in a knife fight that led to murder charges against
defendant had made a threatening statement, earlier in the
evening, about wishing to "slash" someone. After a jury con-
victed defendant of murder 	and 	attempted murder, he
appealed, assigning error to the trial court's ruling excluding
that statement. The Court of Appeals affirmed defendant's
convictions without opinion. State u. Salas-Juarez, 230 Or
App 580, 217 P3d 264 (2009). We allowed defendant's peti-
tion for review, and now reverse the judgment of the trial
court and the decision of the Court of Appeals.
In the early hours of August 13, 2006, defendant and
another man, Russell, engaged in a fight on a street in
Medford with a group of eight people. During that fight, one
member of the group, Mark Lunsford, was fatally stabbed.
All participants in the fight admitted to having been drunk,
and each described the events from his or her own perspec-
tive. Nonetheless, a picture of what happened that evening
eventually emerged. According to Russell, the group first had
crossed paths with him around 2:35 a.m. and had shouted
racist slogans at him, implying that Russell was himself a
racist. Russell exchanged words with the group, but all par-
ties continued walking. A few minutes later, Russell encoun-
tered defendant, a Hispanic man, walking in a direction that
would cause him to encounter the group. Russell stopped
defendant and told him that there were "racist people"
nearby. The content of the rest of Russell's conversation with
defendant is in dispute, but it is undisputed that defendant
and Russell soon approached the group and verbally con-
fronted them. Defendant, who was wearing a light colored
long-sleeved shirt over a sleeveless white tank top, took off
the outer shirt, removed his belt and began swinging the belt
around. One of the members of the victim's group, Taylor,
also took off his belt and began to swing it around. Russell
then pulled out a knife and began lunging with it.
A 	number 	of 	witnesses 	testified 	that, 	within
moments 	of the 	start 	of the 	fight, 	defendant 	stabbed
Lunsford and chased another of the group, Crowley, lunging

422 	State v. Salas-Juarez
at him with a knife. Crowley testified that he was able to
avoid being stabbed by defendant and eventually punched
defendant in the side of the head, knocking him down.
Another member of the group, Barnett, testified that he
threw a rock at defendant's head to distract him from
Crowley, although he was not sure whether he had hit defen-
dant with it. In any event, by that time, someone had called
for police assistance and the authorities were on their way.
Defendant ran away, with two other members of the victim's
group-Thomas Lunsford (the victim's brother) and Ricks-
pursuing him through the streets of Medford. Police officers
had responded to the emergency call, and defendant ran
directly toward them. Thomas Lunsford, on seeing the offi-
cers, put his head down and turned to walk in a different
direction. The officers took both defendant and Thomas
Lunsford into custody.
Meanwhile, Russell had run off in another direction.
His identity was not known to defendant, the victim's group,
or the police. All of the participants in the fight described the
second instigator (Russell) as a white "punk rock guy" with a
shaved head, wearing a black t-shirt with a punk rock band
logo on it.
After the stabbing, the victim's friends flagged down
a car that was passing by. The driver of that car, Vissar, hap-
pened to be a member of a punk rock band that had been
playing in the night club where Russell had spent the eve-
ning before the fight. The police eventually described the sec-
ond instigator to Vissar, who thought that the second insti-
gator 	was Russell. 	Vissar remembered Russell 	because
Russell had been dancing by himself in a conspicuous man-
ner close to the stage during the performance and also had
engaged a couple of the band members in conversation. One
of the band members remembered Russell's first name;
another mentioned the name of a band in which Russell had
played. With those leads, the police were able to track Russell
down within a few days after the fight.
While the police were interviewing the band mem-
bers to discover Russell's identity, one member of the band,
Stewart, told the officers about a statement that Russell had
made at the club regarding the bartender's son, a person who

Cite as 349 Or 419 	423
had no involvement with the later events. The bartender's
son was extremely drunk and belligerent, and was picking
fights with various people over the course of the evening. At
one point, Stewart saw the bartender's son and Russell bump
shoulders and exchange glares; the two did not, however,
engage in any actual fight or lengthy verbal exchange. Later,
when the band was taking a break, Russell sat down at a
table with Stewart and began making conversation, compli-
menting him on the music. Russell mentioned the incident
with the bartender's son. 	Stewart responded by asking
Russell, "Well, did you just tell him to go [perform an unlikely
sexual act]?" Stewart stated that Russell replied that the bar-
tender's son "was really starting to irritate him and piss him
off, and he wanted to slash him." When Russell made that
statement, Russell lifted his shirt and showed Stewart a
knife, which Stewart described as a black "Rambo-style"
fixed-blade knife, about six to seven inches in total length, in
a sheath attached to his belt.
Immediately after the fight, the police conducted a
thorough search of the entire area to locate the knife that had
been used in the stabbing. The officers scoured the area
where the fight took place and retraced the path that defen-
dant had taken when he ran from the scene. They used a
metal detector to search the ground, and even searched the
roof of a nearby building, but did not find a knife. They did,
however, find defendant's shirt, parts of defendant's belt and
belt buckle, Taylor's belt and belt buckle, and a large rock
such as Barnett described throwing.
Several days later, the police learned Russell's iden-
tity and contacted him. Russell initially declined to talk to
the officers; eventually, however, officers were able to inter-
view him. Russell told them about the events leading up to
the fight. His story to that point was consistent with the other
witnesses' descriptions of the events. In describing the fight,
Russell admitted that he had had a knife and that he pulled
it out and waved it around. He stated that someone punched
him on the side of the head and knocked him down. While he
was falling or when he was on the ground, something-which
Russell surmised to be a rock-landed on the ground nearby.
He stood up, heard someone yell, "He's been stabbed," and
ran away. He stated that he did not stab anyone with his

424 	State v. Salas-Juarez
knife. He also stated that he did not see defendant wield a
knife, nor did he see defendant stab anyone.
Officers 	obtained a 	warrant to search Russell's
home. During the search, they found, among other things, a
t-shirt and shorts that appeared to be those that Russell had
been wearing on the night of the fight, together with a folding
knife with a black handle. The items were folded neatly and
placed together in a drawer. The clothes had not been
washed. Testing later revealed that Russell's own blood was
on his shorts, but none of the victim's blood was found on any
of Russell's clothing or on the knife. Russell later identified
the knife as the one that he had used in the fight. He testified
that the knife was clipped to the inside of his pocket, and that
he removed it and opened it during the fight.
Defendant was charged with the murder of Mark
Lunsford and with the attempted murder of Crowley. At the
trial, defendant's theory of the case was that the witnesses
were mistaken in identifying defendant as the stabber, and
that Russell was the person who had stabbed Mark Lunsford
and tried to stab Crowley. The parties agreed that evidence
concerning how Russell was identified as the second individ-
ual involved in the fight that night was relevant. The parties
also agreed that the fact that Russell was seen with a knife
earlier in the evening of the fight was relevant. Thus, the
state informed the court that it intended to present the testi-
mony of the band members to explain how they had helped to
lead the police to Russell and to establish that Russell had a
knife, and that Russell also would be called to testify.
Defendant also wanted to offer Russell's statement
about wanting to "slash" the bartender's son. Defendant
contended 	that 	that 	statement 	was 	admissible 	under
OEC 404(3) to show Russell's motive or intent to kill Mark
Lunsford.1 The state opposed admission of the statement.
The trial court ultimately ruled that the statement did not
' DEC 404(3) provides:
"Evidence 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. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident."

Cite as 349 Or 419 (2010) 	425
show motive or intent to kill Lunsford, and therefore was not
admissible.
During the trial, two band members testified about
remembering Russell at the club that night, describing his
enthusiastic dancing in front of the stage and his apparent
enjoyment of the music. Both band members stated that
Russell appeared to be having a good time. In compliance
with the trial court's earlier ruling, the witnesses were not
asked and did not testify about the incident with the bar-
tender's son or Russell's statement. Stewart did testify that
Russell
"had a knife on his side that he decided to like flash me.
* * * He just picked his shirt up like that and drop[ped] it
like that."
Stewart then went on to describe the knife.
After the state completed its direct examination of
Stewart, defense counsel argued outside the presence of the
jury that defendant should be entitled to impeach Stewart by
bringing up the incident with the bartender's son. He argued
that the defense had never heard before that moment that
Russell appeared to be having fun at the bar, and that he
should be permitted to impeach the statement that Russell
was having fun with the fact that, in that context, Russell
had gotten into a confrontation with the bartender's son and
had said that he wanted to "slash" him. The trial court
observed that it could not actually be a surprise to anyone
that Russell was having a good time at the bar and ruled that
it was "not proper impeachment."
The trial progressed. Among other things, the state
presented the testimony of several of the individuals who had
been with the victim at the time of the stabbing who testified
that they saw defendant stab Mark Lunsford, and that, after
initially behaving aggressively, Russell just stood to the side
while the fight was taking place. Through cross-examination,
defense counsel was able to draw out the following facts,
among others, in support of defendant's theory of the case:
• 	Although Crowley remembered punching defendant in
the side of the head and Barnett remembered throwing a
rock at him, defendant did not appear to be injured when

426 	State v. Salas-Juarez
he was arrested. Moreover, although Russell testified
that, in the course of the brawl, he had been punched in
the side of the head, that an object had hit the ground
near him and he had surmised that a rock had been
thrown at him, and that he had been injured, none of the
members of the victims' group remembered fighting with
Russell.
• 	Although Barnett testified at the trial that he saw defen-
dant stab Lunsford, he initially told the police that
Russell was the person with the knife and the person
who had stabbed the victim.
• 	Although Thomas Lunsford, the victim's brother, testi-
fied at trial that he saw defendant stab the victim, he ini-
tially told a police officer that he had been walking in
front of the rest of the group before the fight occurred,
that he had heard someone yell from behind him that his
brother had been stabbed, and that he rushed back to the
group and found his brother bleeding.
• 	None of the victim's blood was found on defendant's
clothing.
• 	The state presented witnesses who testified that, two
weeks before the fight, defendant bought a knife with a
sheath depicting the Mexican flag and that he wore it on
his belt all the time. No such knife ever was found,
despite an exhaustive search. The sheath was not found
either, notwithstanding the fact that defendant's belt
and belt buckle were found at the location of the fight.
• 	Russell admitted to a friend the day after the fight that
he "may have" stabbed someone during the fight,
although he was not sure.
At the conclusion of the state's case, defendant
moved for judgment of acquittal, arguing that the state's evi-
dence did not prove beyond a reasonable doubt that defen-
dant committed the charged offenses. The trial court denied
the motion. Ultimately, the jury found defendant guilty of the
murder of Mark Lunsford and of the attempted murder of
Crowley. Defendant appealed his convictions to the Court of
Appeals, which, as noted, affirmed without opinion.
On review in this court, defendant argues that the
trial court erred in excluding the evidence that Russell had
stated, earlier on the evening of the stabbing, that he wanted

Cite as 349 Or 419 (2010) 	427
to "slash" the bartender's son. Defendant's argument is two-
fold: He contends that Russell's statement about wanting to
slash the bartender's son shows that, earlier in the evening,
Russell was in an angry mood resulting from his confronta-
tion with the bartender's son, and his manifestation of that
anger was a desire to resort to his knife. That, according to
defendant, explains why Russell later instigated a fight
against eight other people, and amounts to a "motive" to use
the knife on someone else less than an hour and a half later.
For that reason, he argues, the statement is relevant and
admissible under OEC 404(3). In addition, defendant argues
that the statement about being "irritated" and "pissed off'
and wanting to slash the bartender's son flies in the face of
Russell's testimony, and that of band members Stewart and
Vissar, that Russell was in a happy, "mellow" mood when he
was at the club before the fight. Therefore, defendant asserts,
he should have been permitted, under OEC 613, to use
Russell's prior inconsistent statement to impeach the testi-
mony of Stewart, Vissar, and Russell that Russell was having
fun at the club. 2
We begin at the beginning. As noted, defendant
informed the court in a pretrial hearing that he intended to
offer evidence that Russell had stated that he wanted to
"slash" the bartender's son. Under OEC 402, that evidence
was admissible ifit was relevant and not excluded by Oregon
evidence rules, by Oregon statutory and decisional law con-
sistent with those rules, or by constitutional considerations. 3
The first question, then, is whether that evidence was
relevant.
As we have often stated, the threshold for admission
of evidence on grounds ofrelevance is low: "[E]vidence is rel-
evant so long as it increases or decreases, even slightly, the
probability of the existence of a fact that is of consequence to
the determination of the action." State v. Barone, 329 Or 210,
2 Defendant also makes various constitutional arguments that he did not raise
in the trial court. We do not consider those unpreserved arguments in this opinion.
3 OEC 402 provides:
"All relevant evidence is admissible, except as otherwise provided by the
Oregon Evidence Code, by the Constitutions of the United States and Oregon,
or by Oregon statutory and decisional law. Evidence which is not relevant is
not admissible."

State v. Salas-Juarez
238, 986 P2d 5 (1999); accord State v. Hampton, 317 Or 251,
255, 855 P2d 621 (1993); OEC 401 (relevant evidence is "evi-
dence 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 evi-
dence"). Indeed, in considering that matter, the inference
that the proponent of the evidence wishes to be drawn from
the evidence need not be the necessary, or even the most
probable, one. Hampton, 317 Or at 255 n 8.
Thus, the question is whether Russell's statement
increased, even slightly, the probability that Russell was the
person who stabbed Mark Lunsford. Russell responded to an
altercation with the bartender's son by stating he wanted to
"slash" that individual. Stewart testified in the offer of proof
that he took Russell's statement seriously enough to alert the
bartender, who then sent her son home in a taxi. One infer-
ence that the jury was entitled to draw from Russell's reac-
tion to the seemingly minor altercation with the bartender's
son was that Russell was in an angry frame of mind on the
night in question. That may not be the only inference that
could be drawn, given the other evidence of Russell's behav-
ior at the club, but it is a permissible one. Russell's state-
ment, therefore, was at least some evidence of his general
state of mind at the time that he made the statement.
That evidence then must be considered together
with the evidence that, an hour and a half later, Russell
recruited defendant to confront the victim and his friends
and instigated the fight with them. From Russell's later
actions, the jury further reasonably could infer that Russell's
state of mind was an ongoing one. Put another way, the jury
reasonably could conclude that Russell's general state of
mind on the night in question was such that, when he was
offended, he would respond in anger and with a willingness
to "slash" his offender.
Those inferences, in turn, would make it more prob-
able that Russell slashed at Mark Lunsford with his knife
and less probable that Russell simply stood by while defen-
dant and the victim's friends were engaged in the fight, as
Russell later claimed. So viewed, the evidence of Russell's
expressed state of mind was relevant to the central dispute

Cite as 349 Or 419
in the case: Which person-defendant or Russell-stabbed
Mark Lunsford?
The 	evidence 	being relevant, 	it was 	admissible
unless excluded by some other rule, law, or case. OEC 402. As
discussed above, defendant claimed that Russell's statement
was admissible under OEC 404(3), while the state claimed
that it was not. That rule provides:
"Evidence of other crimes, wrongs or acts is not admis-
sible to prove the character of a person in order to show that
the person acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident."
Although defendant, in his argument to the trial court,
implicitly conceded that Russell's statement about wanting
to slash the bartender's son was a "wrong'' or an "act" under
OEC 404(3), we do not find it necessary to resolve that issue.
Instead, we shall assume that the statement was an "act"
within the meaning of OEC 404(3), and concern ourselves
with whether evidence of that "act" was nonetheless admis-
sible under the rule. See State u. Hayward, 327 Or 397, 409,
963 P2d 667 (1998) (using such an approach). We conclude
that it was. Defendant's trial strategy, as we understand it,
was to create a reasonable doubt as to his own guilt by sug-
gesting to the jury that Russell was the perpetrator. As we
have explained, evidence of Russell's state of mind would per-
mit the jury to conclude, through a short series of inferences,
that 	Russell 	stabbed 	Mark 	Lunsford. 	The 	evidence 	of
Russell's state of mind thus not only was relevant, it was crit-
ical to defendant's case.
In arguing to the contrary, the state acknowledges
that evidence tending to show that Russell was "in an angry
mood" or had a generalized desire to engage in violence would
be relevant to establish a motive to engage in violence a short
time later. But what the state fails to acknowledge, and what
we think is clear, is that Russell's statement about wanting
to "slash" the bartender's son an hour and a half before was
such evidence. That is, it was evidence from which the jury
reasonably could infer that Russell was generally in an angry
or violence-prone mood--especially when it is coupled with

430 	State v. Salas-Juarez
his later behavior in instigating the fight with the victim and
the victim's friends and recruiting defendant to join him in
that fight.
The remaining question is whether any error in
excluding the statement was harmless. The state argues that
the tenuous relevance of the statement to defendant's case
was rendered negligible by other evidence. In particular, the
state relies on the fact that defendant admitted that he
agreed to go with Russell to confront the victims, he admitted
to provocative words and deeds with respect to the victim's
group, and multiple other witnesses identified defendant as
one of the two instigators of the fight. The state also empha-
sizes that the jury heard far more relevant and specific evi-
dence of Russell's motive with respect to the particular vic-
tims in the case. For example, Russell admitted that he was
intoxicated the night of the fight. He admitted that, immedi-
ately before the fight, he engaged in a provocative and heated
verbal exchange with the group, which involved accusations
of racism. He admitted that he was sufficiently provoked by
that encounter that he stopped defendant on the street,
described the group as racists, and essentially recruited
defendant to confront them. The jury also heard evidence
that Russell (and defendant) ran at the group, shouting
obscene insults and provoking a fight. Russell himself testi-
fied that he was involved in the fight and that he pulled out
his knife and poked at people with it. The state argues that,
given those circumstances immediately surrounding the
fatal fight, whether Russell had a prior, generalized angry
state of mind sheds little light on the question of who stabbed
Mark Lunsford. That is, once Russell and defendant were in
the heat of the battle, Russell's previously expressed desire to
"slash" the bartender's son was of little probative value in
determining who in fact stabbed the victim.
We think that that argument points precisely the
other way. The evidence against defendant, while significant,
was not overwhelming. Given the evidence that pointed to
Russell as the actual perpetrator, we cannot conclude that
the additional evidence of Russell's statement, which sug-
gested an angry state of mind, would not have tipped the bal-
ance toward a reasonable doubt as to defendant's guilt. The
jury could, for example, reasonably have inferred that the

Cite as 349 Or 419 (2010) 	431
angry state of mind that Russell's statement suggested per-
sisted over the next hour and a half, and that it therefore was
unlikely that Russell would have "stood by," as he claimed he
did, once the fight began in earnest. Reasonable doubt may
be built upon such a foundation of fact and inference. The
jury should have heard about the statement; its exclusion
was not harmless.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.