S054854, Opinion — State v. Brumwell

93
Argued and submitted January 11, judgment of conviction and sentence of death
affirmed March 25, reconsideration denied July 28, 2011
STATE OF OREGON,
Respondent,
v.
JASON VAN BRUMWELL,
Appellant.
(CC 04C46225; SC S054854)
249 P3d 965
Defendant was convicted of aggravated murder for murdering a fellow inmate
and sentenced to death. On automatic and direct review, defendant argued, among
other things, that the trial court erred in: (1) admitting, during the penalty phase
of his aggravated murder trial, evidence that he had identified with satanism and
listened to death metal music when he had participated in an earlier murder of one
person and the attempted murder of another and (2) overruling his demurrer that
ORS 163.150(l)(c)(BJ violates the state and federal constitution because it does not
require that all jurors agree on the specific aggravating evidence that each juror
considers in deciding whether to impose the death penalty. Held: (1) Because the
state presented evidence from which a rational juror could conclude that defen-
dant's interest in satanism and death metal music provided one of the motives for
his past violent acts, the evidence was relevant to the jury's determination in the
penalty phase whether defendant was likely to be dangerous in the future and
whether defendant should receive the death penalty; (2) the trial court did not
abuse its discretion in ruling that the probative value of that evidence was not sub-
stantially outweighed by the danger of unfair prejudice; (3} admission of the evi-
dence did not violate Article I, sections 2 and 3, of the Oregon Constitution because
the trial court applied a religion-neutral rule of evidence and defendant did not
seek an individual exemption; (4) admission of the evidence did not violate the
First Amendment to the United States Constitution because the evidence was rel-
evant to defendant's motive for engaging in his past acts of violence and was not
offered merely to prove his abstract beliefs; (5) by demurring to the indictment,
defendant only preserved a facial constitutional challenge to ORS 136.150(1)(c)(B},
and the statute is facially constitutional.
The judgment of conviction and sentence of death are affirmed.
En Banc
On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Marion County
Circuit Court.
Joseph C. Guimond, Judge.
Shawn E. Wiley, Chief Deputy Public Defender, Salem,
argued the cause and filed the brief for appellant. With him
on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.

94
Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent. With him on the
brief were John R. Kroger, Attorney General, Jerome Lidz,
Solicitor General, Timothy A 	Sylwester, Douglas F. Zier,
Jamie Contreras, and Erika L. Hadlock.
KISTLER,J.
The judgment of conviction and sentence of death are
affirmed.

Cite as 350 Or 93
KISTLER,J.
This case is before us on automatic and direct review
of defendant's judgment of conviction and sentence of death.
On review, defendant assigns error to 33 of the trial court's
rulings. For the reasons set out below, we affirm the judg-
ment of conviction and sentence of death.
In 1996, defendant was sentenced to life imprison-
ment without the possibility of parole for the aggravated
murder of one person and the attempted aggravated murder
of another. The aggravated murder and attempted aggra-
vated murder occurred during the robbery of a Dari Mart, a
convenience store in Eugene. In 2004, while serving that sen-
tence 	at the Oregon State Penitentiary, defendant and
another inmate, Gary Haugen, killed a third inmate. A grand
jury indicted defendant and Haugen for aggravated murder,1
and a jury found both defendants guilty of that crime after a
joint guilt-phase trial. The facts relating to the inmate's mur-
der and the joint guilt phase of defendant's trial are set out in
State v. Haugen, 349Or174, 243 P3d 31 (2010). Because the
only issues that we discuss in this opinion concern the pen-
alty phase of defendant's trial, we do not restate those facts
here.
The trial court held separate penalty-phase hearings
for defendant and Haugen. Much of the evidence at defen-
dant's penalty-phase hearing focused on the aggravated mur-
der and attempted aggravated murder that occurred during
the Dari Mart robbery, and defendant's primary assignments
of error on review focus on the admission of evidence regard-
ing satanism and death metal music that led up to those
crimes. To put defendant's arguments in perspective, we
recount that evidence briefly.
In 1994, defendant was 18 years old. He had dropped
out of North Eugene High School and was working, off and
on, at a local Goodwill-a job that his mother had helped him
get after telling him that he needed to go back to school, get a
1 The state charged defendant with two counts of aggravated murder: inten-
tional murder committed after having been convicted previously of murder, ORS
163.095(l)(c), and intentional murder committed while confined in a state correc-
tional facility, ORS 163.095(2)(b).

96 	State v. Brumwell
job, or leave home. Defendant's day-to-day life revolved
around his friends. Defendant and three of his friends formed
what one of them described as "just kind of a garage-band-
type thing. Nothing real serious." The four of them would
hang out at defendant's parents' house-smoking pot, play-
ing music, writing songs, and listening to music.
The group was interested primarily in death metal
music, although its members also had some interest in heavy
metal and jazz. In explaining the difference between death
metal and heavy metal, one member of the group testified
that "death metal music would be considered heavier-
heavier distortion, guttural vocals, lyrics that would be
more-generally, it would be violent lyrics towards other peo-
ple or-or satanic as a general-general idea of what the lyr-
ics would be about." 2 One of the group's favorite death-metal
bands was Deicide, and each member of the group had his
own copy of Deicide's eponymous debut album Deicide. That
album contains a series of songs that focus on violence and
satanic ritual; among other things, the songs mimic tradi-
tional Christian rituals, replacing references to Christian
symbols and images with satanic or demonic ones. 3
When asked whether the group referred to them-
selves in 1994 as satanists, one member of the group said,
''Yeah, I believe we-we would refer to ourselves as that."
When asked what it meant to be a satanist, he replied that he
"d[idn't] know exactly what it meant to me then [when the
Dari Mart murder occurred] because I was-I was quite
young." He explained:
"I think it was just a lot of anger, and I-and I related to-I
related to the-to the music and the lyrics and the anger
and all of that stuff, and for some reason I called that satan-
ism, the rebelling against my parents and peers and the
people that I felt had hurt me * * *."
2 Another member of the group testified that death metal lyrics tended to be
"gloom[ier]." As he explained, "[t]hey could range from-anything from cannibal-
ism to mutilation to murder to the end of the world to-you know, it just runs the
gamut 	* *."
" The trial court admitted a compact disc of Deicide into evidence during the
penalty phase of defendant's trial. The liner notes for Deicide contain the lyrics of
the songs on the album and also depict a satanic symbol that defendant and his
friends discussed painting on the wall of the Dari Mart.

Cite as 350 Or 93
One of defendant's friends did not think that defendant per-
sonally was a satanist. According to that witness, defendant
"didn't really have any beliefs as in-such as like I'm a satan-
ist or a God worshipper, or anything like that." The witness
acknowledged that there may have been "symbolisms and
stuff like that," but he explained that "there was nothing
satanism really about [defendant]," except when he and
another friend, Mike Hayward, were together. Consistent
with the witness's testimony that there may have been "sym-
bolisms and stuff like that," the state elicited evidence that
defendant had used a hot knife blade to burn an image of an
inverted cross on his body. An inverted cross is a satanic sym-
bol, which can be found depicted in the liner notes of Deicide.
On April 10, 1994, defendant and the three other
band members got together at defendant's house around
noon. They smoked some marijuana, put on some music, and
"[got] the guitars out." When their marijuana ran out, they
began thinking of ways to get money so that they could buy
more marijuana and "hopefully, some musical instruments,
or something, to-for the band." Someone suggested "a rob-
bery at an ATM sort of like a-some type of mugging, or
something," but the group "decided that wasn't something we
were going to do[.]" Then they thought ofrobbing a store, and
defendant suggested a convenience store, the Dari Mart, as
an "isolated, you know, out-of-the-way spot" that would be
easy to rob. The four of them took a trip to the store that
afternoon to 	check out the store's security system and
returned to defendant's house to "brainstor[m] * * * the easi-
est and best way to do it[.]" They discussed, for example,
whether it would be better to shut off the security system or
tie the employees up. At that point, there was no discussion of
either weapons or murder.
One member of the group left to go to work, and the
remaining three members (defendant, Brock, and Rabago)
went over to the house of one of defendant's other friends,
Mike Hayward. After they met with Hayward, the four
of them went to Rabago's house where they picked up
weapons-metal bars, a slag hammer, and a knife. From
there, they returned to defendant's house where they contin-
ued to plan the robbery. At some point, they decided that they
were going to kill "just anyone at the store * * * because we

State v. Brumwell
didn't want any witnesses left." As they were planning the
robbery and murder, they talked about "leav[ing] some kind
of satanic graffiti on the wall" of the Dari Mart. Specifically,
they 	discussed 	spray-painting 	the 	"trifixion," 	a 	symbol
depicted in the liner notes of Deicide, on the Dari Mart wall. 4
At defendant's penalty-phase hearing, Rabago acknowledged
that he previously had testified "that [they] did this, in refer-
ring to the [Dari Mart] murder, in the essence of Glen Benton
and Chris Barnes." 5 Glen Benton is the bass player and vocal-
ist for Deicide and the person who, according to the liner
notes for Deicide, designed the trifixion that the group con-
sidered painting on the Dari Mart wall. 6
The group never carried out their idea of painting
the trifixion on the wall of the Dari Mart. They did, however,
go forward with the rest of their plan. That evening, defen-
dant, Hayward, Rabago, and Brock returned to the Dari Mart
one more time to check out the store. This time, Hayward
bought cigarettes from one of the clerks, who carded him.
Then, they went back to defendant's house where they con-
tinued to talk about robbery and murder. Around nine that
evening, the four men returned to the Dari Mart and parked
in a nearby church parking lot, where they sat in their car lis-
tening to Deicide and waiting until shortly before the Dari
Mart closed at eleven. At defendant's penalty-phase hearing,
Brock reaffirmed his earlier testimony "that the music [on
the Deicide album] was significant in relation to this killing."
As he explained, "[w]e related to the-to the lyrics of the
music, the subject such as murder that it [Deicide] discussed
in the lyrics, the-the subject of mutilation and that type of
thing."1
4 Although Brock referred to the trifixion as "a symbol on a Deicide album," the
trifixion is depicted in the liner notes for Deicide. The trifixion is composed of three
inverted crosses connected by a series oflines that form two pentagrams.
Brock and Rabago had testified in an earlier trial regarding the Dari Mart
murder, and the prosecutor sometimes refreshed their memory with their earlier
testimony.
6 Chris Barnes was an "ex-member vocalist for the band Cannibal Corpse,"
another of the group's favorite death metal bands.
7 Rabago's testimony differed from Brock's. Rabago initially agreed on cross-
examination that "[t]his music wasn't something that was any kind of motive
regarding the Dari Mart incident." When asked on redirect whether "the music and
the beliefs that you [referring to the four men] held had nothing to do with leading
you to [the murder]," Rabago testified, "The beliefs, possibly. But the music was

Cite as 350 Or 93 (2011) 	99
Shortly before the Dari Mart closed at eleven, defen-
dant, Hayward, Brock, and Rabago went into the store. Two
women were working in the store. 8 One woman was stocking
the walk-in cooler in the back while the other was at the front
of the store. Hayward smiled at the woman at the front of the
store and waved to her as he walked by. (She was the person
who had carded him earlier that day when he bought ciga-
rettes.) Hayward went to the back of the store, and Brock fol-
lowed him. The two of them went into the walk-in cooler
where the other woman was working. She looked at Hayward
and Brock for about 10 to 15 seconds. No one said anything.
As Brock later testified, the woman "kind of turned her back
towards us and that's when [Hayward] struck her with the
metal bar that he had." She "kind of stumbled." Hayward hit
her again, and "she kind of fell." "[H]e struck her a few more
times* * *."At that point, Brock left, went outside, and sat in
the car. As he explained, "it just-it all kind of got surreal
almost."
The pathologist who examined the woman's body
testified that there were "12 to 15 different impacts to the
head," resulting in multiple fractures of her skull. At one
point, her skull "was actually caved in." There were also
defensive wounds to her hands, showing that she had not
died immediately. The pathologist concluded that:
"[t]he cause of death was-were the head injuries, skull
fractures with brain contusions, which are bruises, and also
lacerations, which are tears of the brain."
Defendant and Rabago stayed at the front of the
store, where the other woman was working behind the
counter. She testified that, as she heard the walk-in cooler
door open, defendant "ran towards me with a metal bar over
his head and like growled at me. And then, when he got up to
me, he told me that he was just kidding." The clerk testified
during the penalty phase that, after the robbery, she listened
to death metal music, and the growl that defendant emitted
----
actually a catharsis* * *[for] pent-up aggression and anger and-and pain.~When
asked whether the beliefs that had helped lead to the murder were beliefs in satan-
ism, Rabago answered, "I personally had a belief in satanism, yes." Rabago also
agreed that "[defendant] had expressed those [beliefs] also to [him] at [that] time."
8 One woman was 28 years old at the time of the robbery; the record does not
disclose the other woman's age.

State v. Brumwell
as he ran towards her was similar to the guttural vocals she
heard on the death metal album.
Defendant took the money from the cash register,
about $40, and then went back to the cooler while Rabago
stayed at the front of the store with the young woman. After
a couple of minutes, defendant came back to the front of the
store. Hayward was behind him. Defendant told the clerk
that they were not going to hurt her, that they wanted her to
go to the back of the store with them, and that they were just
going to tie her up. The clerk, however, noticed blood sprayed
on Hayward's face and "realized that maybe that it might be
more than a robbery." As they took her to the back of the
store, defendant was carrying "a metal piece of rebar," while
Hayward had "a longer piece of metal bar."
When they got to the back of the store, Hayward told
defendant to hit the clerk. As the clerk testified,
"[Defendant] started beating me over the head, and I fell
against this back door here [pointing to a map]. And I kept
getting back up, and he continued to beat me* * * [o]ver my
head and my arms. I was trying to protect my head. And
they hit my legs, and stuff like that."
After defendant "had done it for a while," he began saying
over and over "die, bitch, die." Initially, only defendant was
hitting the young woman. Then, "the other guys came around
and they started kicking and beating [her] as well." At one
point, she heard Hayward say to defendant, "I killed mine.
Why can't you kill yours?" Later, as she was lying on the floor,
the clerk heard defendant tell Rabago to get a knife. As she
later testified, "And I-I was stabbed, but I never did see a
knife."
Hayward and Rabago left. Defendant paused, and
the clerk "got enough strength to get up" and try to run for
safety to a nearby bathroom, where she could lock herself in.
As she explained, "I had just like seconds (to get away. But
a]s soon as I ran past [defendant], he was right there with
me." He said, "Oh, no, you don't. And he pushed the door, and
I didn't have as much strength as I did because he had
crushed my arms with the rebar."

Cite as 350 Or 93 (2011) 	101
The clerk "fell back onto the toilet, where [defen-
dant] continued to beat [her] over the head." She testified
that, "at this point in time, I guess I had lost so much blood
that I just kind of-I had to keep laying my hands in my lap
because they were--I couldn't hold them up anymore." She
heard defendant ask, "Just why won't you die, bitch?" And
then,
"[defendant] decided to take the bar and shove it into my
mouth like he was going to, like, shove it out the back of my
neck.r9J And so, I tried to hold onto it. And he continued
doing that and then he knocked my teeth out and then con-
tinued beating me again."
At that point, the front door buzzer sounded. A cus-
tomer had come into the store just before closing time to buy
some sour cream, tripping the buzzer as he opened the door.
Defendant stopped and looked towards the front of the store,
as if he were trying to see if someone had come in. In that
moment, the clerk shut the bathroom door, threw her weight
against it, and managed to get the hook through the latch on
the door.
The customer found the sour cream and was waiting
at the counter to pay. As he later testified, he could not say
how long he waited. He was not keeping track of time. Then,
he noticed two men walking toward the front door. One of
them was "carrying a knife and covered with blood up to his
elbow." The two men did not make eye contact with the cus-
tomer but walked by "[w]ith purpose. Pretty much [in] a
hurry." On realizing the significance of what he had seen, the
customer "bolted for home and called 9-1-1."
The clerk survived. When the ambulance brought
her to the emergency room, she was in shock, having lost
40 percent of her blood. Of most concern to the doctor who
treated her was the profuse bleeding from her scalp. He tes-
tified that "there were multiple extensive gaping lacerations"
in her scalp. The bone underneath her scalp was exposed,
and there were other areas where the scalp "was loose on
the--on top of the bone of the skull." Additionally, she had
9 Defendant later told one of his friends that he "turn[ed] the bar to try and
stab her in the mouth.''

State v. Brumwell
broken teeth, fractured arms, and multiple stab wounds on
her arms and scalp and through her hand. The doctor who
provided medical care for the clerk had spent part of his
career 	as 	a 	trauma 	doctor 	in 	an 	emergency 	room 	in
Baltimore, where he had had extensive experience treating
life-threatening injuries. When asked whether he had ever
seen such a beating, the doctor replied, "I have never seen
such a severe beating, no, in all of my years of trauma call."
In addition to that evidence, the jury heard evidence
regarding the difficulties defendant had faced growing up,
his disciplinary record in prison, and the character witnesses
from prison whom defendant called on his behalf. The jury
also 	had 	before 	it 	evidence 	regarding 	defendant 	and
Haugen's murder of the inmate from the guilt phase of defen-
dant's trial, as well as defendant's allocution to the jury. After
considering that evidence, the jury sentenced defendant to
death.
On review, defendant assigns error to 33 rulings
that the trial court made during the guilt and penalty phases
of his trial. Our decision in Haugen, 349 Or at 180-95,
answers many of the guilt-phase assignments of error that
defendant raises in this case, and we write to address two of
defendant's assignments of error and part of a third assign-
ment of error that challenge the trial court's rulings regard-
ing the penalty phase of defendant's trial. 10
Defendant's first and second assignments of error
are directed at the trial court's rulings admitting evidence of
satanism and death metal music during the penalty phase of
his trial. Before the penalty phase began, defendant filed two
motions in limine. One challenged the admission of any evi-
dence regarding satanism; the other, the admission of any
evidence regarding death metal music. In response, the state
noted that, in State v. Hayward, 327 Or 397, 406-09, 963 P2d
667 (1998), this court had held that evidence of satanism and
death metal 	music 	was admissible to prove Hayward's
10 We have considered each of defendant's other assignments of error and each
of his supporting arguments. Those other assignments of error either have been
discussed by this court in previous cases and resolved against defendant, were not
preserved for review, or are not well-taken. Further discussion of the issues would
not benefit defendant, the public, the bench, or the bar.

Cite as 350 Or 93 	103
motive for the Dari Mart crimes. Relying on Hayward, the
trial court denied defendant's motions in limine. During the
penalty phase, each time that the state offered evidence
regarding satanism or death metal music, defendant objected
for the reasons set out in his motions in limine, and the trial
court overruled his objections.
On review, defendant reiterates the arguments that
he made in his motions in limine. He contends that the evi-
dence was not relevant to any penalty-phase issue; that even
if the evidence were relevant, its prejudicial effect substan-
tially outweighed its probative value; and that the admission
of that evidence violated his state and federal rights to free-
dom of religion and expression.
We begin with defendant's argument that evidence
that he identified with satanism and preferred death metal
music was not relevant to any issue that the jury had to
decide in the penalty phase. More specifically, defendant rea-
sons that his religious affiliation and musical preference,
without more, do not prove that he is likely to be dangerous in
the future (the issue that the second death penalty question
poses), nor do they constitute, he contends, "aggravating evi-
dence" that the jury may consider in deciding whether to
impose the death penalty (the issue that the fourth death
penalty question poses). Defendant argues that his identifi-
cation with satanism and his preference for death metal
music would be relevant only if the state introduced evidence
from which the jury could find that satanists or death metal
fans either advocate or commit violent acts.
After the parties present evidence during the pen-
alty phase of an aggravated murder trial, the jury has to
answer four questions: (1) whether the defendant deliber-
ately committed the murder; (2) whether "there is a probabil-
ity that the defendant would commit criminal acts of violence
that 	would 	constitute 	a 	continuing 	threat 	to 	society";
(3) whether, if presented by the evidence, the murder was an
unreasonable response to any provocation by the deceased;
and (4) "[w]hether the defendant should receive a death sen-
tence." ORS 163.150(1)(b). The jury is instructed to answer

104 	State v. Brumwell
the fourth question "no" if, "after considering any aggravat-
ing evidence and any mitigating evidence, * * * any circum-
stances of the offense and any victim impact evidence * * *,
one or more of the jurors believe that the defendant should
not receive a death sentence." ORS 163.150(l)(c)(B).
Evidence is relevant and thus admissible in the pen-
alty phase if the evidence increases or decreases, even
slightly, the probability of the existence of facts material to
those penalty-phase questions. See OEC 401; State v. Cox,
337 Or 477, 485, 98 P3d 1103 (2004).11 This court has long
recognized that a defendant's prior criminal acts are relevant
to the second question that the jury must decide in the pen-
alty phase-whether the defendant will commit criminal acts
of violence that constitute a continuing threat to society.
State v. Fanus, 336 Or 63, 89, 79 P3d 84 7 (2003), cert den, 541
US 1075 (2004); State v. Moore, 324 Or 396, 417, 927 P2d
1073 (1996); State v. Moen, 309 Or 45, 73, 786 P2d 111 (1990).
Evidence that, in 1994, defendant aided and assisted in the
murder of one person and personally attempted to murder
another was relevant to the jury's determination of his future
dangerousness. The jury also could consider those past vio-
lent acts as "aggravating evidence" that it weighed along
with mitigating evidence in deciding whether, as the fourth
question asks, death is the appropriate penalty.
Defendant does not dispute that evidence that he
committed the Dari Mart crimes was relevant to the issues
that the jury had to decide in the penalty phase. He also
acknowledges that this court held in Hayward that "death
metal music and satanism provided at least one of the
motives for [Hayward], Rabago, [defendant], and*** Brock
when they planned and committed the Dari Mart crimes."
Hayward, 327 Or at 407. He argues, however, that evidence
of death metal music and satanism was not relevant in this
case for two reasons. He argues initially that, even though
the evidence in Hayward was sufficient to establish that the
group's interest in satanism and death metal music was one
11 OEC 401 provides:
" '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."

Cite as 350 Or 93
of the motives for the Dari Mart crimes, the evidence in this
case differs. Defendant contends that the evidence in this
case was not sufficient to establish a connection between his
interest in satanism and death metal music and the commis-
sion of the Dari Mart crimes. He argues alternatively that,
even if there were sufficient evidence in this case to permit
the jury to find that his interest in satanism and death metal
music was one of the motives for the commission of the Dari
Mart crimes, his motives for committing those crimes were
relevant only to the question of guilt or innocence. In defen-
dant's view, his motives were not relevant to the sentencing
issues that the jury had to decide in the penalty phase.
We begin with defendant's argument that there was
no evidence in this record connecting satanism and death
metal music to the commission of the Dari Mart crimes. 12 On
that issue, the state introduced evidence during defendant's
penalty-phase hearing that Deicide was one of defendant,
Rabago, and Brock's favorite bands, that each of them had a
copy of Deicide, that the lyrics of Deicide extolled satanism
and violence, that the group planned on painting a satanic
symbol from Deicide on the wall of the Dari Mart, that the
group carried out the murder and attempted murder at the
Dari Mart "in the essence of' or in homage to Glen Benton
(the bass player and vocalist for Deicide who designed the
satanic symbol the group considered painting on the Dari
Mart wall), that the group listened to Deicide for almost two
hours as they sat in the church parking lot waiting to commit
the Dari Mart crimes, that the music and lyrics of those songs
were "significant in relation" to the murder and attempted
murder that the group committed immediately afterwards at
the Dari Mart, and that defendant emitted a death metal
growl as he ran towards the store clerk with a metal bar
i 2 As the parties brief this issue, it presents a question of conditional relevancy.
See State u. McNeely, 330 Or 457, 462 n 5, 8 P3d 212 (2000) (explaining that
"[c]onditional relevancy means a situation where one fact is relevant only if
another fact is proven"); OEC 104(2) (authorizing the admission of such evidence}.
That is, both parties assume that evidence that defendant identified with satanism
or preferred death metal music, standing alone, would not be relevant to either the
second or the fourth penalty-phase questions. The issue, as the parties brief it, is
whether other evidence in the record makes that evidence relevant. See Moore, 324
Or at 418-19 (explaining that evidence that defendant had acted on his beliefs
made the existence of those beliefs relevant to the penalty-phase issues in an
aggravated murder trial).

106 	v. Brumwell
raised over his head. Contrary to defendant's argument,
there was evidence from which a reasonable juror could find
that defendant's (and the group's) interest in satanism and
death metal music was not merely coincidental with the
crimes that occurred at the Dari Mart; rather, a reasonable
juror could find, as this court held in Hayward, that defen-
dant's (and the group's) interest in those subjects provided
one of the motives for the crimes committed that night.
Defendant argues alternatively that his motives for
committing the crimes at the Dari Mart were not relevant to
the issues that the jury had to decide in the penalty phase.
We reach a different conclusion, for at least three reasons.
First, the reasons why defendant committed acts of violence
that night at the Dari Mart bear on whether he is likely to
commit similar acts in the future; that is, the specific triggers
for violence that resulted in the Dari Mart crimes may or may
not persist and their existence (or nonexistence) bears on his
future dangerousness. Second, the reasons why defendant
participated in one murder and attempted to commit another
bear on his culpability for those acts, which in tum is rele-
vant to the weight that the jury gives those acts as it consid-
ers the aggravating and mitigating evidence in deciding the
fourth question-whether death is the appropriate penalty.
Third, beyond the specific triggers for defendant's participa-
tion in one murder and his attempt to commit another, the
jury could find that the reason why defendant committed
those crimes says something more fundamental about his
character. A person who participates in one murder and per-
sonally attempts to commit another as a way of paying hom-
age to the bass player and vocalist in a band either places an
exceedingly small value on human life or lacks empathy for
others in a way that makes that person dangerous in the
future, or so the jury could find. 13 In sum, the trial court cor-
rectly ruled that evidence regarding defendant's interest in
13 Defendant argues finally that, because the evidence did not show that he has
any current interest in satanism, evidence that he previously had such an interest
is not relevant to his future dangerousness. Defendant's argument misses the
mark. If his interest in satanism was one of the reasons for the violent acts that he
committed at the Dari Mart, then the absence of such an interest reduces the like-
lihood that he will commit violent acts in the future. Additionally, the other two
reasons why evidence of his motives was relevant-that the evidence bore on his
culpability for those acts and that the jury could find that it said something more

Cite as 350 Or 93
satanism and death metal music was relevant to the issues in
the penalty phase.
Defendant argues alternatively that, even if evi-
dence regarding satanism and death metal music had some
minimal relevance, the prejudicial effect of that evidence sub-
stantially outweighed its probative value. See OEC 403;
Hayward, 327 Or at 407-08 (considering that issue). 14 We
review the trial court's ruling on that issue for abuse of dis-
cretion. Hayward, 327 Or at 407; Moore, 324 Or at 407. We
are aware, as the trial court was, that evidence regarding
satanism could prejudice the jury in ways that were unre-
lated to the reason for its admission. We note, however, that
any potential prejudice was tempered somewhat by the wit-
nesses' testimony that the group and defendant's interest in
satanism was more a way of expressing anger and disaffec-
tion from society than the adoption of any particular creed.
Beyond that, evidence regarding satanism and death metal
music was integrally related to the murder and attempted
murder at the Dari Mart and, as explained above, was rele-
vant to the jury's resolution of the second and fourth ques-
tions in the penalty phase. This court concluded in Hayward
that, in this context, the "evidence to which [Hayward]
object[ed] was not unfairly prejudicial. The trial court did not
abuse its discretion in overruling [Hayward's] motion to
exclude the evidence on that ground." 327 Or at 408. That
conclusion applies equally here.
Defendant argues that, even if the evidence was rel-
evant 	and 	not 	unfairly 	prejudicial, 	admitting 	evidence
regarding satanism violated his right to freedom of religion
under the state constitution. He also argues that admitting
evidence regarding satanism and death metal music violated
fundamental about his character-apply without regard to whether defendant still
identifies with satanism.
14 OEC 403 provides:
"Although relevant, evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence."
The state assumes that OEC 403 applies to this evidence, and so do we. We express
no opinion on the application, if any, ofOEC 404(4) in this context.

108 	State v. Brumwell
his rights to freedom of religion and association under the
First Amendment. 15
We 	begin 	with 	defendant's 	state 	constitutional
claim. 16 In analyzing freedom of religion claims under the
state constitution, 	the 	court has 	distinguished between
applying neutral rules to religiously motivated conduct and
rules that expressly target religion. Cooper v. Eugene Sch.
Dist. No. 4J, 301 Or 358, 368-72, 723 P2d 298 (1986). This
court has explained that, when faced with a challenge to the
application of a general rule that was "neutral toward relig-
ion on its face and in its policy" to religiously motivated con-
duct, the only issues were the "statutory authority to make
such a regulation * * * and an individual claim to exemption
on religious grounds." Id. at 368-69. Conversely, when relig-
ious activity "is the specific target of th[e] law," the state con-
stitutional inquiry is more exacting. Id. at 369, 372 (explain-
ing that a statute that expressly restricted public school
teachers from wearing religious dress in the classroom would
be justified if the "religious dress necessarily contravenes the
wearer's role or function at the time and place beyond any
realistic means of accommodation").
In this case, defendant challenges the trial court's
ruling admitting evidence of satanism to prove his motive for
committing the Dari Mart crimes. As we understand the trial
court's ruling, the trial court concluded that evidence of
defendant's 	motive 	was 	admissible 	without 	regard 	to
whether the motive for participating in the Dari Mart crimes
was pecuniary, religious, or otherwise. The fact that the evi-
dence bore on defendant's motive for committing those
crimes was the reason for its admission. Put differently, the
15 Although defendant refers to his First Amendment right to listen to death
metal music as a right of association, it seems more akin to a person's right to read,
listen to, or view expressive activity.
16 Defendant asserts that Article I, sections 2 and 3, of the Oregon Constitution
extend protection to nontraditional religious beliefs as well as traditional ones. The
state does not challenge that proposition, and we assume, for the purpose of ana-
lyzing defendant's state constitutional challenge, that Article I, section 3, extends
protection to nontraditional religious practices, such as satanism. See Or Const,
Art I, § 3 (providing that "[n]o law shall * * * interfere with the rights of con-
science"); cf Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 371, 723 P2d 298
(1986) (describing Oregon's various religion provisions as "specifications of a larger
vision of freedom for a diversity of religious beliefs and modes of worship***").

Cite as 350 Or 93 	109
trial court applied a neutral rule of evidence-that evidence
of motive is generally admissible-to what we assume was
religiously motivated conduct. As such, Cooper teaches that
the trial court's ruling was subject to attack only on the
ground that the trial court lacked authority to make the rul-
ing or on the ground that defendant was entitled to "an indi-
vidual claim to exemption on religious grounds." See id. at
368-69.
Defendant does not contend that the trial court
lacked authority to admit evidence of motive, nor does he
argue for "an individual claim to exemption on religious
grounds." That is, defendant does not argue that we should
craft an exception for religiously motivated crimes from the
neutral rule that evidence of a defendant's motives for com-
mitting crimes is generally relevant and admissible. Rather,
defendant's argument assumes that the evidence was admit-
ted only to prove that he was an adherent of a disfavored
religion, and he argues that evidence admitted for that pur-
pose infringes the free exercise of his religious beliefs. The
difficulty with defendant's argument is the assumption that
underlies it. As explained above, the trial court admitted the
challenged evidence because it bore on defendant's motive for
the Dari Mart crimes, without regard to the specific nature of
the motive. Given the trial court's religion-neutral ruling,
defendant's state constitutional argument fails. Cf. State v.
Plowman, 314 Or 157, 165-66, 838 P2d 558 (1992) (uphold-
ing, against an Article I, section 8, challenge, a statute that
imposed a higher penalty on assaults motivated by racial
animus).
Relying on Dawson v. Delaware, 503 US 159, 112
S Ct 1093, 117 L Ed 2d 309 (1992), defendant argues that
the trial court's rulings admitting evidence of his interest
in 	satanism 	and 	death metal music violated his 	First
Amendment rights. We read Dawson more narrowly. The
Court explained in Dawson that "the Constitution does not
erect a per se barrier to the admission of evidence concerning
one's beliefs and associations at sentencing simply because
those beliefs and associations are protected by the First
Amendment." Id. at 165. And it was careful to explain that a
court may consider a defendant's reasons for committing
a criminal act in imposing a sentence, even though the

v. Brumwell
expression of those reasons, unalloyed to any criminal act,
would be constitutionally protected. See id. at 164 (discussing
Barclay v. Florida, 463 US 939, 103 S Ct 3418, 77 L Ed 2d
1134 (1983)); accord Wisconsin v. Mitchell, 508 US 476, 485-
86, 113 S Ct 2194, 124 L Ed 2d 436 (1993) (applying Dawson).
Conversely, where evidence of constitutionally protected
expressive or associational activity "prove[s] nothing more than
[the 	defendant's] 	abstract beliefs," 	the 	First Amendment
prohibits its admission. Mitchell, 508 US at 486 (quoting
Dawson, 503 US at 167 (second alteration in original)).
The question in Dawson, as the Court framed it, was
whether the state could introduce evidence during the pen-
alty phase of Dawson's capital murder trial that Dawson "was a
member of an organization called the Aryan Brotherhood,
where the evidence ha[d] no relevance to the issues being
decided in the proceeding." Dawson, 503 US at 160. The
Court held that, where evidence of Dawson's exercise of his
associational rights (membership in the Aryan Brotherhood)
"proved nothing more than [his] abstract beliefs," the admis-
sion of that evidence violated his First Amendment rights. Id.
at 167. One year after the Court decided Dawson, it upheld,
against a First Amendment challenge, a Wisconsin statute
that imposed an enhanced penalty on assaults motivated by
racial animus. Mitchell, 508 US at 490. The Court recognized
that the defendant's expression of racial animus, uncon-
nected to any crime, would be constitutionally protected. See
id. at 485-86 (citing Dawson). It held, however, that the First
Amendment neither barred the admission of evidence of the
defendant's racial animus to prove his motive for committing
the assault nor prevented the imposition of a greater penalty
on racially motivated assaults. Id. at 486-88.
This case is a far cry from Dawson. As explained
above, evidence of defendant's interest in satanism and pref-
erence for death metal music was relevant to prove defen-
dant's motive for participating in the murder of one person
and for attempting to murder another person during the Dari
Mart robbery. And the reason why defendant participated in
one murder and attempted to commit another was relevant
both to his future dangerousness and to his culpability for
those acts and, thus, to the weight that the jury was entitled
to give that aggravating evidence in deciding whether to

Cite as 350 Or 93 	111
impose the death penalty. This is not a case in which the evi-
dence proved only defendant's abstract beliefs. Rather, this is
a case in which, as in Mitchell, the challenged evidence
proved the motive for the crime. As such, its admission did
not violate defendant's First Amendment rights.
In his twenty-seventh assignment of error, defen-
dant argues that the trial court erred in overruling his
amended demurrer. This court has not previously addressed
one of the issues that defendant raised in his demurrer and
reiterates on review. Specifically, we have not addressed
defendant's argument that ORS 163.150 is unconstitutional
because it does not require the jury to agree unanimously on
the aggravating evidence that each juror considers in decid-
ing the fourth penalty-phase question.
On that issue, ORS 163.150 provides that the fourth
question that the jury must decide in the penalty phase is
"[w]hether the defendant should receive a death sentence."
ORS 163.150(1)(b)(D). ORS 163.150 directs the trial court to
instruct the jury to answer that question "no,"
"if, after considering any aggravating evidence and any
mitigating evidence concerning any aspect of the defen-
dant's character or background, or any circumstances of the
offense and any victim impact evidence as described in par-
agraph (a) of this subsection, one or more of the jurors
believe that the defendant should not receive a death
sentence."
ORS 163.150(1)(c)(B). Defendant demurred to the indictment
on the ground that ORS 163.150{1)(c)(B) is unconstitutional
because it does not require that all the jurors agree on the
specific 	aggravating 	evidence 	that informs 	each juror's
answer to the fourth question.
To the extent that defendant argues that ORS
163.150(1)(c)(B) is facially unconstitutional, his argument
fails. Even if we were to assume, as defendant argues,
that either Article I, section 11, or the Sixth Amendment
requires juror unanimity on aggravating evidence, ORS
163.150(1)(c)(B) is capable of constitutional application. That
statute does not preclude a trial court from instructing the
jurors that all of them must agree on the aggravating evi-
dence that each of them considers in deciding the fourth

question. Rather, the statute leaves a trial court free to give
such an instruction, if that is what either the state or the fed-
eral constitution requires. It follows that, even ifthe premise
of defendant's argument were correct, and we express no
opinion on that issue, the statute is not facially unconstitu-
tional. See MacPherson v. DAS, 340Or117, 139, 130 P3d 308
(2006) (except for free speech challenges, persons "asserting
[a] facial challenge [to a statute] bear [a] 'heavy burden' to
demonstrate that [the] statute cannot be constitutionally
applied under any circumstance").
To the extent that defendant argues that ORS
163.150(1)(c)(B) was applied unconstitutionally in this case,
he cannot raise that issue by way of a demurrer. See Fanus,
336 Or at 68. A'> this court explained in Fanus, "the possibil-
ity of an unconstitutional application of [a statute] to the
defendant's case [i]s not a defect appearing on the face of the
accusatory instrument or otherwise grounds for demurrer
under ORS 135.360." Id. If defendant wanted to preserve the
issue, he should have asked the trial court to instruct the jury
that all of them had to agree on the aggravating evidence. If
the trial court declined to give the instruction, then defen-
dant could have assigned error to that ruling. Defendant did
not do so, and we express no opinion on the question whether
defendant's argument-that jurors must unanimously agree
on the specific aggravating evidence that informs each juror's
decision whether to impose the death penalty-has any
merit. It is sufficient to hold only that the trial court correctly
overruled defendant's demurrer. Having considered all of
defendant's assignments of error, we affirm the trial court's
judgment and sentence.
The judgment of conviction and sentence of death
are affirmed.