Background
In February 2018, Ervan Ronell Herring allegedly fired six shots at a man outside a Portland hospital, striking no one. The state charged Herring and his brother (codefendant) with attempted murder, attempted first-degree assault, unlawful use of a weapon, and felon in possession of a firearm. The prosecution’s theory was that Herring, a longtime member of the Woodlawn Park Bloods street gang, recognized the victim—a member of the rival Kerby Blocc Crips—in the hospital parking lot, retrieved a gun from his brother’s car, and opened fire. The victim had shot and killed Herring’s brother (also a Bloods member) in 1997, for which he served prison time before returning to Portland.
Before trial, the state moved to admit expert testimony about gang membership, gang culture, and the violent rivalry between the Bloods and Crips under OEC 404(3) as noncharacter evidence of motive. The trial court allowed the evidence, reasoning that it explained why Herring would have a reason to shoot this particular victim. The court also admitted firearms evidence seized from codefendant’s home three months after the shooting—including a mismatched .40-caliber Glock, its box, and ammunition—as circumstantial evidence that codefendant had possessed a second, missing Glock consistent with the shell casings found at the scene.
The jury convicted Herring of attempted first-degree assault with a firearm and unlawful use of a firearm. (The attempted murder conviction was later dismissed after Ramos v. Louisiana invalidated non-unanimous jury verdicts.) On appeal, the Court of Appeals held that the gang evidence required the jury to make an impermissible character-based propensity inference and reversed all convictions. It affirmed the admission of the gun evidence. The state petitioned for review on the gang-evidence ruling; Herring contingently cross-petitioned on the gun evidence.
The Court’s Holding
The Oregon Supreme Court reversed the Court of Appeals on the gang evidence and affirmed on the gun evidence, remanding for the Court of Appeals to address Herring’s remaining assignments of error. On the core evidentiary question, the court held that the state’s gang evidence was offered on a noncharacter theory of relevance. The state’s theory was not that Herring is a violent person generally, but that his gang membership gave him a concrete, particularized reason to be hostile toward this specific victim—a rival gang member who had also killed Herring’s fellow Blood and brother. That theory connects the evidence to a specific motive directed at a specific person, which does not require the jury to reason about Herring’s disposition or general propensity for violence.
The court distinguished “character” evidence—which describes a generalized disposition manifesting across all situations of life—from “motive” evidence, which establishes a discrete reason for a discrete act. Because the gang evidence was relevant to explain why Herring would have a targeted reason to shoot this particular victim on this particular day, the theory of relevance did not depend on an inference about Herring’s character within the meaning of OEC 404(3). The Court of Appeals therefore erred in holding otherwise.
The court also addressed the impact of its recent decision in State v. Davis, 372 Or 618 (2024), which clarified that OEC 404(4)—not OEC 404(3)—is the governing provision for other-acts evidence of a criminal defendant. The court held that Davis does not alter the outcome here: the substantive analytical framework is the same under either provision, and whether evidence requires character reasoning remains a predicate legal question reviewed de novo. On the gun evidence, the court agreed with the Court of Appeals that the missing-Glock-box inference cleared the low relevance threshold and that the trial court did not abuse its discretion in concluding that the probative value was not substantially outweighed by unfair prejudice to Herring.
Key Takeaways
- Gang-membership evidence is noncharacter evidence under OEC 404(3) when offered to show that a defendant had a specific, targeted motive to commit a particular act against a particular victim—not a general propensity for violence.
- After State v. Davis, OEC 404(4) is the correct rule for other-acts evidence by a criminal defendant, but the same substantive principles govern: courts must still assess relevance, whether the theory requires character reasoning, and OEC 403 balancing.
- The presence or absence of character reasoning continues to matter under OEC 404(4) because it heavily influences the OEC 403 balancing—noncharacter evidence generally survives balancing while pure-character evidence is more likely excluded.
- Physical evidence found at a codefendant’s home can be relevant to a defendant where the prosecution’s theory links the codefendant as the supplier of the weapon used in the charged crime.
- Remaining trial-court errors—including challenges to specific gang-testimony components and jury instructions—were remanded to the Court of Appeals for decision.
Why It Matters
This decision provides important guidance for Oregon prosecutors and defense attorneys litigating the admissibility of gang evidence in criminal trials. By holding that gang-rivalry evidence offered to establish a specific, targeted motive does not cross into impermissible character evidence, the court preserves a significant prosecutorial tool in cases where gang affiliation explains the who and why of a crime without simply arguing the defendant is a bad person prone to violence. The decision draws a clear analytical line: the question is whether the chain of reasoning requires an inference about general disposition, or whether it stops at a specific reason for a specific act.
The opinion also serves as the court’s first substantive application of the Davis framework, confirming that the shift from OEC 404(3) to OEC 404(4) as the governing rule for defendants’ other acts does not disrupt prior case law on character versus noncharacter theories of relevance. Trial courts and appellate courts should still perform the same motive-versus-character analysis—it simply now operates as an input to OEC 403 balancing rather than a categorical bar under OEC 404(3).