Background
On June 30, 2018, Kevin Dean Hicks and his estranged wife T were arguing in a trailer where defendant was living. During the argument, defendant strangled T to death. After killing her, defendant set a fire in the trailer, which destroyed the structure and spread approximately 100 feet through brush and grass, endangering a neighboring house. The fire also damaged other property on the land, including an electrical hookup, an off-road vehicle, a shed, and nearby vehicles and a shipping container. Defendant then entered an adjacent house, told the owner he had killed his wife and set the trailer fire, and repeated these admissions to police both on video and in a subsequent interview.
A medical examiner determined that T died from strangulation, not fire, based on the absence of soot in her airways. The state charged defendant with second-degree murder, second-degree abuse of a corpse, and first-degree arson. Defendant asserted an affirmative defense of extreme emotional distress (EED), arguing he had suffered a sudden emotional break and that the fire-setting was part of a suicide attempt, which would warrant conviction only for first-degree manslaughter rather than murder.
The trial court admitted graphic crime scene and autopsy photographs over defendant’s objection, including images of the victim’s charred body, dissected internal organs, and close-ups of the burn patterns and injuries. The jury rejected the EED defense and found defendant guilty on all three counts. He was sentenced to life imprisonment with possibility of parole after 25 years, plus consecutive prison and jail time for the other convictions.
The Court’s Holding
The Oregon Court of Appeals affirmed all convictions and rejected defendant’s three primary arguments. First, the court held that the trial court did not abuse its discretion in denying defendant’s morning-of-trial motion to require the state to elect which specific structure constituted the “protected property of another” under the arson statute. The court reasoned that the timing of the motion—on the first day of trial—defeated its purpose of providing adequate notice and time for defense preparation. Additionally, defendant already knew the exact place, date, and time of the alleged crime and had repeatedly admitted to starting the fire, so the universe of potentially endangered properties was not large.
Second, the court upheld admission of the graphic crime scene and autopsy photographs under Oregon Evidence Code 403’s balancing test. Although the images were exceptionally graphic even by murder trial standards, showing burned remains, dissected internal organs, and burn patterns from multiple angles, the court concluded their probative value was not substantially outweighed by the danger of unfair prejudice. The photographs had legitimate, specific probative purposes: establishing the crime scene layout, explaining why the medical examiner could not identify external strangulation injuries, demonstrating the fire’s origin and location relative to the victim, and proving the victim died before the fire was set (through absence of soot in the dissected trachea). The court rejected defendant’s argument that his admission to the crimes rendered the photos inadmissible, treating his admission like an offer to stipulate—which courts may disregard because photographs provide probative value beyond bare stipulations. The court noted that the state still bore the burden of proving each element beyond a reasonable doubt.
Third, the court rejected defendant’s challenge to jury instructions regarding the extreme emotional distress defense. Following precedent established in State v. Wayman, the court held that jury unanimity is not required to reject an EED defense, since EED is not an element of second-degree murder that the state must disprove but rather a mitigating factor that the defendant must prove by a preponderance of the evidence. The jury instruction requiring at least 10 jurors to agree that defendant had proven EED was proper.
Key Takeaways
- Trial courts have broad discretion to deny late-filed pretrial motions to elect, particularly when timing defeats the motion’s purpose of providing adequate notice.
- Graphic autopsy and crime scene photographs remain admissible when they have specific, identifiable probative value, even if exceptionally prejudicial and even when the defendant has confessed or admitted the underlying conduct.
- A defendant’s admission to criminal conduct does not render photographic evidence inadmissible and does not act as a substitute stipulation that defeats the photographs’ probative value.
- In Oregon, the extreme emotional distress defense does not require jury unanimity to reject; only a 10-juror majority must agree the defendant failed to prove EED by preponderance of the evidence.
Why It Matters
This decision establishes important boundaries for evidentiary disputes in serious criminal trials. Prosecutors can rely on the Hicks precedent when offering graphic photographs of crime scenes or autopsy findings, knowing that trial courts have discretion to admit them based on specific probative purposes even when exceptionally prejudicial. The ruling clarifies that confessions or admissions do not insulate defendants from detailed photographic evidence—the state must still prove its case, and photographs can illuminate facts that extend beyond the bare admission itself.
Additionally, the decision confirms the framework established in Wayman regarding EED, a defense available in Oregon for murder charges. By clarifying that EED requires only a 10-juror majority rather than unanimity, the decision affects the strategic weight of this affirmative defense and has implications for jury composition and jury instructions in attempted-manslaughter-to-murder-reduction cases.