No. 594 July 1, 2026 59
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEVIN DEAN HICKS, SR.,
aka Kevin D. Hicks, aka Kevin Dean Hicks,
aka Kevin Dean Hicks,
aka Kevin Hicks, Sr.,
Defendant-Appellant.
Jackson County Circuit Court
18CR43805, 22CR21155; A180711 (Control), A180712
Timothy Barnack, Judge.
Argued and submitted April 23, 2025.
Andrew D. Robinson, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
60 State v. Hicks
Cite as 351 Or App 59 (2026) 61
PAGÁN, J.
In this consolidated criminal appeal, defendant
appeals from a judgment of conviction for second-degree
murder, ORS 163.115, second-degree abuse of a corpse,
ORS 166.085, and first-degree arson, ORS 164.325, arising from an incident in which he strangled his wife to
death and then set a fire at the scene. Defendant raises
three assignments of error. In his first assignment of error,
defendant asserts that the trial court erred by denying
his motion for a pre-trial election as to which protected
property was the subject of the arson charge. In his second through tenth assignments of error, defendant asserts
that the trial court erred by allowing in graphic photos of
the crime scene and autopsy. In his eleventh assignment of
error, defendant asserts that the trial court erred when it
failed to instruct the jury it had to be unanimous to reject
a defense of extreme emotional distress (EED). We conclude
that the trial court did not abuse its discretion by denying
defendant’s motion for a pre-trial election. We conclude that
the trial court did not err by allowing in the photos in the
manner it did. Lastly, we conclude that the trial court was
not required to give defendant’s proposed instruction. We
thus affirm.
I. BACKGROUND
Defendant and T were married, but separated in
2017, after which defendant began living in a trailer on land
owned by B. On June 30, 2018, T and defendant were arguing in the trailer. Defendant, by his own words, “snapped”
and attacked T, strangling her to death. He then lit a fire
in the trailer. After setting the fire, defendant entered B’s
house, told B he had just killed his wife, and that he had set the trailer on fire. Firefighters arrived and began fighting
the blaze; police arrived soon after and arrested defendant.
Defendant told police that he had just killed his wife and
set the trailer on fire in an attempt to kill himself. After
having been Mirandized, defendant again repeated that he
had killed his wife and set a fire in an attempt to kill himself, which was captured on an officer’s body camera and
shown to the jury. Defendant repeated his confessions in
62 State v. Hicks
a subsequent interview in police custody, which was also
shown to the jury.
T’s body was found in the middle of the travel
trailer, near the kitchen area. Investigators concluded that
the fire had started in the back bedroom. Medical examiner
Dr. James Olson testified that the cause of T’s death was
strangulation, not fire. In support of that was the examiner’s finding that there was no soot in T’s airways, meaning that
she had stopped breathing by the time the fire was burning. To assist the testimony of Olson and Detective Seese,
the state offered photos of the crime scene and body, including Exhibits 1, 2, and 5 through 11—all of which defendant
objected to pre-trial. The trial court admitted those exhibits, with some limitations on the scope of their relevance.
Exhibits 1 and 2 were photos of the crime scene showing
T’s extremely charred body buried in debris. Exhibit 5
was an autopsy photo of T’s burned head, neck, and upper
chest. Exhibits 6 and 7 were autopsy photos that showed
T’s burned skull and upper back. Exhibit 8 was a photo of
T’s clothes from her backside, showing they were partially
unburnt. Exhibit 9 was an autopsy photo of T’s larynx and
trachea, which the examiner had cut open for examination;
the photos revealed no soot. Exhibit 10 showed thermal
damage to T’s extremities and torso. Exhibit 11 also showed
the dissected trachea, absent soot, which the medical examiner opined had evidence of a pre-death injury.
Defendant objected to the photos pre-trial. The
court allowed the photos in for the following purposes, and in each case found that the photos were not substantially more
prejudicial than probative. Exhibits 1 and 2 were admitted
to show the crime scene. Exhibit 5 was admitted to show
that Olson was unable to visually determine whether T had
external injuries (such as from being strangled) due to the
extent of the burns. Exhibits 6, 7, 8 and 10 were admitted
to establish the origin of the fire (i.e., not under, on, or near to T). Exhibits 9 and 11 were admitted to prove abuse of a
corpse.
After the photos had been shown to the jury, the
trial court had a conversation with the parties in which it
reiterated that it had allowed some photos in to prove the
Cite as 351 Or App 59 (2026) 63
arson, not the murder, and that it was concerned about how
the photos were being used. The state argued that the court
had allowed the photos for both purposes. All the exhibits were shown to the jury, but the trial court ultimately
struck Exhibits 6, 7, and 8 as cumulative, and the jury was
instructed to ignore them.
The fire entirely destroyed the trailer, an electrical
hookup, a nearby off-road vehicle, and a shed. The fire also
partially damaged a shipping container and a nearby vehicle. B testified that at the time of the fire, all of the items on the property except for the trailer, shipping container
and the off-road vehicle were owned by persons other than
defendant.
The fire had started to spread through the brush
and grass on the property line in the direction of the neighbor’s house but was extinguished by firefighters. The wildland fire spread about 100 feet from the trailer. The arson
investigator testified that an afternoon wind was beginning
to pick up, which would have endangered buildings to the
northwest of the trailer, in the path of easily burned grass.
The state originally charged defendant with
second-degree murder, ORS 163.115, second-degree abuse
of a corpse, ORS 166.085, and first-degree arson, ORS
164.325. The state dismissed the arson charge and refiled it
in a separate indictment and case number. The cases were
joined for trial. Defendant asserted the affirmative defense
of EED, thus asserting he should be convicted of first-degree
manslaughter rather than second-degree murder. See ORS
163.118(1)(b). Defendant’s theory was that he had suffered
a sudden emotional break, strangled his wife, and then
started the fire in a suicide attempt, all of which evinced
EED. The jury rejected his defense and found defendant
guilty on all counts. On the murder conviction, the trial
court sentenced defendant to life in prison with the possibility of parole after 25 years. On second-degree abuse of a
corpse, the court imposed 20 days in jail. For the first-degree arson conviction, the court imposed 36 months in prison, to
run consecutively to the other sentences. Defendant timely
appealed.
64 State v. Hicks
II. ANALYSIS
A. Motion to Elect
In his first assignment of error, defendant asserts
that the trial court erred when it denied his pretrial motion
to elect regarding which property was “protected” for the
purpose of the arson charge. We conclude that, under the
circumstances, the trial court did not abuse its discretion by denying defendant’s morning-of-trial motion.
On the morning of trial, defendant moved to force
the state to elect which structure it was alleging as the
“protected property of another.” The trial court denied the
motion. The issue was raised again mid-trial, without a new
ruling by the trial court. After the state’s rebuttal closing, and while discussing jury instructions, the state told the
court that it had elected, for the purpose of argument to the
jury, “a shop”—although which of the two shops on the property the state meant was never clarified—was the protected
property that had been endangered; the state so argued in
closing; and the jury was so instructed. See State v. Payne,
298 Or App 411, 422, 447 P3d 515 (2019) (casual resolution
of an election issue, while frequent, is improper; the jury
must be instructed either with a concurrence instruction, or
the particular facts argued for). Defendant challenges only
the pre-trial denial on appeal.
As relevant here, ORS 164.325 provides that:
“(1) A person commits the crime of arson in the first
degree if:
“(a) By starting a fire or causing an explosion, the person intentionally damages:
“(A) Protected property of another;
“(B) Any property, whether the property of the person
or the property of another person, and such act recklessly
places another person in danger of physical injury or protected property of another in danger of damage; * * *”
(Emphasis added.) In turn, and as relevant here, protected
property “means any structure, place or thing customarily
occupied by people * * *.” ORS 164.305(1); see State v. Perez, 13 Or App 288, 290, 508 P2d 833 (1973) (a car was not a
Cite as 351 Or App 59 (2026) 65
customarily occupied place, but a nearby camper was); cf.
State ex rel. Juv. Dep’t. v. Roff, 94 Or App 430, 765 P2d 244
(1988) (cabinet making shop was not protected property of
another during the nighttime when it was not customarily
occupied).1 Property of another “means property in which
anyone other than the actor has a legal or equitable interest
that the actor has no right to defeat or impair, even though
the actor may also have such an interest in the property.”
ORS 164.305(2).
We review a trial court’s ruling regarding the timing of an election for abuse of discretion. State v. BravoChavez, 343 Or App 326, 335, 578 P3d 725, rev den, 374 Or
437 (2025). Discretion “refers to the authority of a trial court to choose among several legally correct outcomes.” State v.
Rogers, 330 Or 282, 312, 4 P3d 1261 (2000). “If there is only
one legally correct outcome, then ‘discretion’ is an inapplicable concept.” Id. In addition, an exercise of discretion “may
be predicated on certain subsidiary determinations—either
findings of fact or conclusions of law—that trigger their own
standards of review.” State v. Burton, 373 Or 750, 760, 571
P3d 736 (2025) (internal quotation marks omitted).
We laid out the relevant law in State v. HernandezCoronado, 348 Or App 412, 415, ___ P3d ___ (2026):
“As we explained in Bravo-Chavez, a defendant has a
‘right to notice of the charges against him sufficient to prepare and present his defense.’ [Bravo-Chavez, 343 Or App]
at 338 (internal quotation marks omitted). To enforce that
right, a defendant may file a motion for pretrial election ‘to
obtain notice of the factual occurrence that is the basis for
a charge.’ Id. at 336. An election must ‘afford the defendant
sufficient time, after the choice has been made, to defend
himself properly.’ Id. at 339 (internal quotation marks
omitted). Courts ‘should compel an election when it appears
that, if the application is denied, the defendant will be * * *
prevented from properly making his defense.’ Id. (internal
quotation marks omitted).”
Unlike Bravo-Chavez, in which there were some
1,000 instances of abuse but far fewer charges, defendant
1
In this case, all property at risk was represented as private; however, separate rules apply to public buildings and forestland. See State v. Haynes, 149 Or App 73, 80, 942 P2d 295 (1997), rev den, 328 Or 275 (1999).
66 State v. Hicks
here knew exactly the place, the day, and the time of the
alleged crime—not least of which because he repeatedly
admitted that he had started the fire. We understand that
defendant argues he did not know exactly which piece of
property he was accused of endangering, but the universe of
potential properties was not large.
Most importantly, this case is much like HernandezCoronado. The purpose of a pretrial election is to give defendants notice of the specific criminal acts that the state will prosecute at trial, in time for defendants to tailor their
defense to those specific incidents. Hernandez-Coronado,
348 Or App at 416. “When a defendant makes a motion
for pretrial election on the first day of trial * * * it is generally within the trial court’s discretion to deny that motion
because the timing of the motion defeats the purpose of the
election.” Id. Here, defendant waited until the morning of
trial to file his motion to elect, and there are no other circumstances that distinguish it from Hernandez-Coronado.
The trial court did not abuse its discretion by denying defendant’s day-of-trial motion to elect.
B. The Crime Scene and Autopsy Photos
In his second through tenth assignments of error,
defendant asserts that the trial court erred by admitting
Exhibits 1, 2, and 5 through 11. He argues that the graphic
photos—which he describes as “gruesome”—were irrelevant and substantially more prejudicial than probative.
Defendant argues the photos were particularly unfairly
prejudicial considering his EED defense. The state acknowledges that the photos were graphic but argues that they
were probative for the purposes the trial court admitted
them for and that the trial court followed the proper procedure and did not abuse its discretion.
We review a trial court’s determinations of relevance under OEC 401 for errors of law. State v. Titus, 328
Or 475, 481, 982 P2d 1133 (1999). “Under OEC 403, relevant
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” State
v. Boauod, 302 Or App 67, 72, 459 P3d 903 (2020) (internal quotation marks and brackets omitted). “Although we
Cite as 351 Or App 59 (2026) 67
examine whether the trial court properly applied the balancing test that OEC 403 prescribes for errors of law, we
review the trial court’s ultimate determination as to whether
evidence is unfairly prejudicial under OEC 403 for abuse
of discretion.” Id. at 72-73 (quotation marks omitted). “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.” Id. at 73
(quotation marks omitted). “Absent a claim that a trial court
has made a legal or factual error in making a discretionary
determination under OEC 403, to determine whether the
court’s evidentiary ruling represents an abuse of discretion,
we examine whether the court exercised its discretion to an
end not justified by, and clearly against, evidence and reason.” Id. (quotation marks and brackets omitted); see also
OEC 401 - 413 (concerning relevance, admission, and exclusion of evidence).
Simply because a photograph is graphic does not
necessarily mean that its admission created a danger of
unfair prejudice. State v. Johnson, 288 Or App 528, 539,
406 P3d 1091 (2017), rev den, 362 Or 389 (2018) (in an EED
case, 16 photos of external wounds were properly admitted).
Even shockingly prejudicial evidence may be discretionarily
admissible if the evidence is highly probative and the court
followed the proper inquiry. State v. Sim, 292 Or App 488,
493, 496, 423 P3d 751, rev den, 364 Or 207 (2018) (in prosecution for pulling a knife on a police officer, trial court did not abuse its discretion to allow in evidence that the police
officer was responding to the scene because defendant had
been reported to be masturbating in front of children’s ballet studio).
A trial court must follow a four-step process known
as the Mayfield analysis when applying OEC 403. State v.
Mayfield, 302 Or 631, 645, 733 P2d 438 (1987). The first step, and the one that defendant challenges, is that “the judge
should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence.”
Defendant argues that the trial court committed legal error
by failing to assess the probative value of each piece of evidence. We find that argument unavailing as the record
68 State v. Hicks
demonstrates that the trial court thoroughly discussed each
photo with the parties, asked questions of their probative
values, and declared exactly what the photos were being
allowed in for. We also reject defendant’s contention that
failing to correctly assess the probative value of evidence at the first step of Mayfield inherently constitutes legal error. So long as the evidence has any relevant probative value, it
is up to the trial court to weigh the probative value for what it is worth, and we review that weighing only for abuse of
discretion. Id.; Boauod, 302 Or App at 72.
Defendant argues that he admitted to the murder
and the arson, and thus the trial court was mistaken to
assign the photos any probative value. The state responds
that a defendant’s admission should be treated like an offer
to stipulate, and under the circumstances, we agree. “[A]
defendant’s offer to stipulate to the facts that the state seeks to establish through disputed evidence does not divest that
evidence of probative value.” State v. Sim, 292 Or App at
494; see State v. Sparks, 336 Or 298, 309, 83 P3d 304 (2004)
(offer to stipulate to autopsy photos did not render the photos inadmissible under OEC 403 because, among other reasons, the stipulations were not of equal evidentiary value to
the photographs). We agree that even though defendant had
admitted generally to the murder and the arson, the state
still had a burden to prove those crimes beyond a reasonable
doubt, and the photos were probative to that end.2
We agree that the photos were exceptionally graphic
(and therefore had potential for considerable prejudicial
effect), even by the standard of murder cases. Contra State
v. Barone, 328 Or 68, 88, 969 P2d 1013 (1998), cert den, 528
US 1135 (2000) (“Although the photographs in question were
graphic, they could not be said to be remarkable in the context of a murder trial.”). They showed graphic details of the
effects of the fire on the victim’s body and from a variety of angles, including internal photos. Still, we cannot say that
2
In particular, we accept the trial court’s rationale that Exhibits 1 and 2 were probative as to the layout of the crime scene; that Exhibit 5 was probative as to why Dr. Olson could not render certain opinions about the strangulation; that Exhibit 10 was probative to establish the origin of the fire (i.e., not under, on, or near to T); and that Exhibits 9 and 11 were probative as to whether T died before or after the fire had been set.
Cite as 351 Or App 59 (2026) 69
the trial court abused its discretion when it concluded that
the unfair prejudicial effect of Exhibits 1, 2, 5, 9, 10, and
11 did not substantially outweigh their probative value, as
its decision was not “to an end not justified by, and clearly
against, evidence and reason.” Boauod, 302 Or App at 72.
As to Exhibits 6, 7, and 8, we note that the state
attempted to use them to prove more than what the trial
court had allowed, leading the court to subsequently strike
them from evidence and instruct the jury to ignore them.
Defendant argues that the photos could not be unseen and
that the harm could not be undone by instruction. However,
even if the instruction was insufficient, we conclude that
any error was harmless under the circumstances, whether
the exhibits are considered individually or cumulatively,
because Exhibits 6, 7, and 8 were less graphic than Exhibits
9 and 11—and we have already concluded that the latter
exhibits were properly admitted. See State v. Davis, 336 Or
19, 32, 77 P3d 1111 (2003) (an error is harmless if “there little likelihood that the particular error affected the verdict”). The trial court did not err by admitting Exhibits 1, 2, 5, 9,
10, and 11, and any trial court error as to Exhibits 6, 7, and 8 was harmless.
C. Jury Instructions
In his eleventh assignment of error, defendant
asserts that the trial court erred when it failed to instruct
the jury that it had to be unanimous to reject a defense of
extreme emotional distress (EED). Defendant concedes that
State v. Wayman, 339 Or App 9, 568 P3d 232, rev allowed, 374
Or 372 (2025) controls. In Wayman, we said that “because
EED is not an element of second-degree murder that must be
disproved by the state, and the existence of EED is instead
a mitigating factor that [the] defendant has the burden to
prove, jury unanimity is not required to reject the defense
and convict [the] defendant of second-degree murder.” Id. at
11. Here, the trial court instructed that “at least 10 jurors
must agree that [defendant] has proven by a preponderance
of the evidence that he was acting under the influence of an
extreme emotional disturbance at the time of the Murder,”
which we conclude accurately reflects the instruction that
70 State v. Hicks
was upheld in Wayman. Id. at 22-23.3 Thus, the trial court
did not err by failing to instruct the jury that it had to unanimously reject a defense of EED.
III. CONCLUSION
The trial court did not err by denying defendant’s
morning-of-trial motion to elect; by admitting Exhibits 1, 2,
5, 9, 10, and 11; or by failing to give defendant’s preferred
EED instruction. Any error as to the initial admission and
later exclusion of Exhibits 6, 7, and 8 was harmless.
Affirmed.
3
Wayman’s instruction read “At least 10 jurors must agree to find the Defendant has established the affirmative defense of extreme emotional disturbance.”