485
Argued and submitted October 10, 2017, affirmed November 14, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
LARRY DALE SMITH, JR.,
Defendant-Appellant.
Washington County Circuit Court
C150361CR; A160838
455 P3d 520
Defendant appeals a judgment of conviction for one count of first-degree rape,
ORS 163.375, and two counts of first-degree unlawful sexual penetration, ORS
163.411. Defendant assigns error to the trial court’s ruling that the state could
impeach him under OEC 806 if he presented evidence that he had attempted to
withdraw a guilty plea entered in another case. He argues that, because the state
offered evidence that he had previously pleaded guilty to sexually abusing the
same victim, OEC 106, known as the rule of completeness, compelled the court
to admit statements he had made in an effort to withdraw that plea, without
subjecting him to impeachment under OEC 806. Held: The trial court did not err.
OEC 106 does not supply an independent basis for admission of otherwise inadmissible evidence. Therefore, OEC 106 did not require the trial court to admit
defendant’s attempts to withdraw his plea, and, when offered by defendant, those
statements would constitute hearsay subject to the provisions of OEC 806.
Affirmed.
Rick Knapp, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Susan G. Howe, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
DEHOOG, P. J.
Affirmed.
486 State v. Smith
DEHOOG, P. J.
Defendant appeals a judgment of conviction for one
count of rape in the first degree and two counts of unlawful
sexual penetration in the first degree.1 In his first assignment of error, defendant contends that the trial court erred
when it ruled that the state could impeach him under OEC
806 if he presented evidence that he had attempted to withdraw a guilty plea that he had previously entered in another
case. Defendant argues that when the state offered evidence
that he had pleaded guilty in another county to sexually
abusing the same victim, the “rule of completeness,” OEC
106, compelled the court to admit statements he had made
in an effort to withdraw that plea, without subjecting him
to impeachment under OEC 806 (permitting impeachment
of hearsay declarant as though the declarant had testified).2
The state responds that OEC 106 did not apply to defendant’s statements at all; the state further argues that, to the
extent that the rule of completeness did require the court to
admit those statements, that would not alter their character as hearsay, subjecting defendant to impeachment under
OEC 806. We conclude that, contrary to defendant’s contention, OEC 106 did not require the trial court to admit evidence of defendant’s attempts to withdraw his plea or render the state the proponent of that evidence; thus, if offered
by defendant, those statements would constitute hearsay,
and defendant, as the declarant, would be subject to the
impeachment provisions of OEC 806. We therefore affirm.3
The relevant facts are procedural and undisputed.
Defendant was indicted in both Washington and Clackamas
counties for sexually abusing the same child. He entered
1
Defendant was charged with first-degree rape (Count 1), ORS 163.375; first-degree sodomy (Count 2), ORS 163.405; and two counts of first-degree unlawful
sexual penetration (Counts 3 and 4), ORS 163.411. The court dismissed Count 2
on the state’s motion to dismiss. Counts 1, 3, and 4 were tried to a jury, which
found defendant guilty.
2
OEC 106 and OEC 806 are set out below. 300 Or App at 487 n 5, 488 n 6.
3
In five additional assignments of error, defendant contends that the trial
court erred in prohibiting him from questioning the victim about an allegedly
false accusation of physical abuse she had made against her mother’s boyfriend,
in instructing the jury that its verdict need not be unanimous, and in imposing a
judgment of conviction based on a nonunanimous verdict. We reject those assignments of error without further discussion.
Cite as 300 Or App 485 (2019) 487
into a global settlement agreement in which he agreed
to plead guilty to one or more charges in each county. As
agreed, defendant pleaded guilty to first-degree sodomy
in Clackamas County, and the court scheduled his sentencing on that charge for a later date. Before that date
arrived, however, defendant sought to withdraw his plea.
First, defendant wrote a letter to the sentencing court in
which he proclaimed his innocence and expressed his desire
to withdraw his plea. Then, at the time of his sentencing
in Clackamas County, defendant formally moved to withdraw his plea and again professed his innocence. The court
denied defendant’s motion, proceeded to sentence him on the
sodomy charge based upon his guilty plea, and entered a
judgment of conviction.
Upon returning to Washington County, defendant
opted not to enter a guilty plea as previously contemplated
and instead proceeded to trial. Before trial, defendant
moved, citing OEC 401 (relevance) and OEC 403 (exclusion
of unfairly prejudicial evidence), to exclude evidence of his
alleged conduct in Clackamas County, as well as evidence
that he had pleaded guilty to sodomy and been convicted of
that offense. The trial court denied defendant’s motion, ruling that both defendant’s conduct and his related admissions
were relevant and not unfairly prejudicial.4 Defendant next
argued that if the jury were to hear evidence of his guilty
plea and conviction, the rule of completeness under OEC 106
would require the court to allow the jury to also hear that
he had tried to withdraw that plea.5 The state responded
that if defendant were to present evidence of his attempt
to withdraw his plea, it would constitute hearsay and the
state would be permitted under OEC 806 to impeach him
4
The trial court did exclude the defendant’s plea petition, based on its determination that the numerous redactions that would be necessary to render it
admissible would themselves be prejudicial to defendant.
5
OEC 106 provides:
“When part of an act, declaration, conversation or writing is given in
evidence by one party, the whole on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is read,
the answer may at that time be given; and when a detached act, declaration,
conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may at that
time also be given in evidence.”
488 State v. Smith
as though he had testified.6 Specifically, the state sought a
ruling allowing it to impeach defendant with a prior, unrelated third-degree rape conviction if the court admitted
evidence of his attempt to withdraw his plea. Following a
lengthy discussion of defendant’s guilty plea and sentencing
in Clackamas County, the trial court ruled as follows:
“So this is my ruling up to this point now.
“The state can get into the plea petition, … basically
the statement that he admitted to Sodomy in the First
Degree.
“But if the state gets into the conviction—I know we’re
splitting hairs here, but significant hairs. If the state gets
into the conviction, then everything—in terms of if you
want to use [defense counsel’s] expression, for the rule
of completeness, we’re talking about a conviction that’s
entered on a particular date, and that whole conversation
that surrounds the conviction—the sentencing, comes in.
“So the state is going to make a decision how far it
wants—if you just want to talk about the plea petition,
that’s fine. If [defendant] want[s] to come back later on and
talk about the withdraw[al] of the plea petition, then, of
course, you know you opened the door. And if you choose not
to, then you don’t open the door.
“But if the state goes into the … conviction in its casein-chief … it’s all coming in.
“…
“So if the state goes into the conviction, all the statements that come—that surround it come in, and it does not
set [defendant] up for [impeachment under OEC 806].
“If the state does not go into the conviction and—but
you want to get into the withdrawal of the plea, then the
conviction comes in and so does [OEC] 806. So it’s kind of
a decision that [defendant gets] to make if you want to go
6
OEC 806 provides, in part, that “[w]hen a hearsay statement … has been
admitted in evidence, the credibility of the declarant may be attacked, and if
attacked may be supported, by any evidence which would be admissible for those
purposes if the declarant had testified as a witness.” See, e.g., State v. Verado,
263 Or App 452,
328 P3d 788, rev den,
356 Or 398 (2014) (determining that a
defendant who elicited evidence of his own exculpatory hearsay statements put
his credibility at issue just as though he had testified, subjecting him to impeachment under OEC 806).
Cite as
300 Or App 485 (2019) 489
down that road. And if he wants to go down that road, and
also understands that everything comes in.”
On appeal, defendant understands the trial court to
have ruled that his attempt to withdraw his plea would be
admissible under OEC 106 if the state presented evidence
of his guilty plea, but that the state would be permitted to
impeach him under OEC 806 if he were the one who offered
the evidence of that attempt. Based on that interpretation of
the court’s ruling, defendant argues that the first part of the
trial court’s ruling was correct, but that the latter part of its
ruling was erroneous. That is, defendant argues that, once
the state introduced evidence that he had pleaded guilty in
Clackamas County, OEC 106 would require the state to complete the picture by also presenting the evidence that he had
attempted to withdraw that plea, which, as the proponent of
that evidence, the state could not impeach under OEC 806.
The state rejects defendant’s characterization of the
trial court’s ruling. According to the state, the trial court’s
ruling reflected the court’s conclusion that defendant’s
attempt to withdraw his plea and related proclamations of
innocence were not part of the same “act, declaration, conversation, or writing” as the guilty plea itself, and so did not
trigger OEC 106. In the state’s view, the trial court’s ruling
was that OEC 106 applied only to evidence of defendant’s
conviction, which the state did not offer at trial, and not to
defendant’s admission to sodomy in his guilty plea.7 The state
further argues that, had the trial court ruled that OEC 106
permitted defendant to complete the picture of the circumstances surrounding his guilty plea by offering evidence that
he had attempted to withdraw it, defendant would remain
the proponent of that evidence and, because it was hearsay,
defendant would be subject to impeachment under OEC 806.
The precise contours of the trial court’s ruling under
OEC 106 are not entirely clear. On the one hand, before issuing the ruling set out above, the trial court had repeatedly
7
The state notes that it does not necessarily agree with the trial court’s
ruling that, if the prosecution introduced evidence that defendant had been convicted of first-degree sodomy, he would be entitled to introduce evidence of his
attempt to withdraw his plea without subjecting himself to impeachment under
OEC 806. However, the state has not cross-assigned error or otherwise developed
a challenge to that ruling.
490 State v. Smith
noted—without limitation—that OEC 106 seemed to encompass defendant’s efforts to withdraw his plea, stating that
“it wouldn’t be fair to the jury to hear some of it and not
all of it.” Such statements could suggest an understanding
that, if the state offered evidence of defendant’s guilty plea,
the court would be required to admit evidence of defendant’s
attempt to withdraw the plea. On the other hand, because
the trial court’s ultimate ruling focused on defendant’s
Clackamas County conviction, its ruling could be viewed as
distinguishing between the evidence of his conviction and
the evidence of his plea, with only the conviction evidence
triggering OEC 106.
Ultimately, however, we need not resolve the parties’
dispute as to the trial court’s precise ruling. The premise of
defendant’s argument on appeal is that, because the evidence
of his efforts to withdraw his plea was admissible under OEC
106, the trial court was required to admit that evidence
without subjecting him to impeachment under OEC 806. As
a result, we need only determine whether, indeed, OEC 106
rendered that evidence admissible. We conclude that it did
not and that the trial court, therefore, did not err. That is,
the rule of completeness does not provide an independent
basis of admissibility for the out-of-court statements defendant made in his efforts to withdraw his plea. Thus, as we
explain below, the trial court was not required to admit
those statements under that rule even if they otherwise met
the requirements of OEC 106. And, as defendant acknowledges, when separately offered on his behalf, those out-ofcourt statements are hearsay and subject him to impeachment under OEC 806, as the court ruled.
We review the trial court’s ruling for errors of law.
State v. Tooley, 265 Or App 30, 47,
333 P3d 438, rev den,
356 Or 575 (2014) (applying that standard to a denial of a
request to admit evidence under OEC 106); State v. Verado,
263 Or App 452, 455,
328 P3d 788, rev den,
356 Or 398 (2014)
(applying same standard to ruling under OEC 806).
As noted, OEC 106 provides:
“When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same
subject, where otherwise admissible, may at that time be
Cite as 300 Or App 485 (2019) 491
inquired into by the other; when a letter is read, the answer
may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any
other act, declaration, conversation or writing which is necessary to make it understood may at that time also be given
in evidence.”
(Emphasis added.) The purpose of OEC 106 is to prevent
the jury from hearing evidence out of context. State v. Batty,
109 Or App 62, 70,
819 P2d 732 (1991), rev den,
312 Or 588
(1992). The trial court, therefore, was required to evaluate
defendant’s request that it admit evidence under OEC 106
with that purpose in mind. That, in turn, required the court
to consider whether, without defendant’s proffered evidence,
the jury would likely be confused or otherwise unable to
fully understand the state’s evidence that he had entered a
guilty plea. And, in making that assessment,
“[t]he key language in [OEC 106] is the phrase ‘necessary to
make it understood.’ In many cases it will not be ‘necessary’
for the supplementary evidence to be offered contemporaneously for the jury to understand the original evidence. If
there is a significant danger that the jury will be misled by
hearing evidence of a writing, act, declaration, or conversation taken out of context the rule authorizes the supplementary evidence to be admitted contemporaneously.”
Laird C. Kirkpatrick, Oregon Evidence § 106.04, 69-70 (6th
ed 2013).
The state suggests that, by ruling that defendant’s
guilty plea did not trigger OEC 106, the trial court expressed
its view that the statements defendant made in an effort to
withdraw his plea were not necessary for the jury to fully
understand his admission of guilt. To be sure, in ruling on
defendant’s motion, the court addressed evidence of both
defendant’s plea petition and his conviction, but it referred
to the “rule of completeness” only in connection with defendant’s conviction. As a result, it is quite possible that the
trial court thought that defendant’s admission of guilt spoke
for itself, while, for reasons the court did not articulate,
defendant’s conviction did not.
However, even assuming, as defendant does, that the
trial court viewed the statements he had made in an effort
492 State v. Smith
to withdraw his plea as necessary context for the guilty plea
itself, that conclusion would not require their admission
under the rule of completeness. Stated differently, even if
defendant’s proffered evidence satisfied the purpose of OEC
106, that rule would not render the evidence admissible. The
rule of completeness is not an independent basis of admissibility. See Batty, 109 Or App at 70. Although it “authorizes
supplementary evidence about an act, declaration, conversation, or writing to be presented contemporaneously with
the initial evidence,” that rule also expressly requires that
the supplementary evidence “be ‘otherwise admissible.’ ”
Id.
(internal citation omitted). That is, “[t]here must be an independent basis for admission apart from OEC 106.” Id.; see
also Tooley,
265 Or App at 47 (“OEC 106 does not apply to
allow admission of supplementary evidence that is otherwise inadmissible.”). The legislative commentary to OEC
106 emphasizes that point:
“The text of [the statute] is amended (1) to allow contemporaneous as well as later introduction of the remainder
of a writing or event, (2) but only, in either event, if the
remaining evidence is otherwise admissible. See Black v.
Nelson, 246 Or 161, 164-165,
424 P2d 251 (1967) (remainder excluded as irrelevant), and Myers v. Cessna Aircraft
Corp., et al., 275 Or 501,
553 P2d 355 (1976) (remainder
excluded as hearsay).”8
Legislative Commentary to OEC 106, reprinted in Laird C.
Kirkpatrick, Oregon Evidence § 106.02, 67 (6th ed 2013);
see also State v. Middleton, 295 Or 485, 490-91,
668 P2d
371 (1983) (where defendant offered a portion of a witness’s
plea agreement, prosecution was not permitted to introduce
another, otherwise inadmissible portion of the agreement
into evidence).
Defendant describes the material he wanted to
have admitted under OEC 106 as “his attempt to withdraw
his plea,” as well as statements that “he did not commit
8
Although the legislative commentary is not an official part of the Evidence
Code, it provides guidance in interpreting the rules of evidence. State v. McClure,
298 Or 336, 344,
692 P2d 579 (1984); see also State ex rel OHSU v. Haas,
325
Or 492, 506 n 10,
942 P2d 261 (1997) (“[W]e conclude that the Legislative
Commentary on the Oregon Evidence Code should be considered as part of that
Code’s legislative history.”).
Cite as
300 Or App 485 (2019) 493
the crime.” Notably, defendant does not contend that those
statements were not offered for the truth of the matters they
asserted or that they otherwise do not meet the definition
of hearsay.9 Moreover, defendant does not dispute the general proposition, confirmed by our decisions in cases like
Batty and Tooley, that OEC 106 does not provide an independent basis of admissibility for otherwise inadmissible
evidence. Rather, he argues that, by operation of OEC 106
itself, his statements are rendered “not hearsay,” and so
are not “otherwise inadmissible” for purposes of that rule.
Specifically, he argues that, because his out-of-court statements must, under the rule of completeness, be both admitted and attributed to the state, whose evidence they clarify,
those statements, together with his guilty plea and accompanying admission of guilt, collectively constitute the “statement of a party opponent” and so are deemed “not hearsay.”
OEC 801(4)(b).10
The difficulty we have with defendant’s argument
is that he fails to grapple with its inherent circularity. In
essence, defendant’s argument is that, although OEC 106
requires the admission of evidence only if it is “otherwise
admissible,” that same rule renders his proffered evidence
“admissible” by requiring its admission. And, even if defendant’s argument did not suffer that logical flaw, defendant
points to nothing in the text, context, or legislative history
of OEC 106 to support his contention that the rule of completeness requires evidence admitted under that rule to
be attributed to the state rather than defendant.11 Thus,
we reject defendant’s argument that OEC 106 somehow
90
Defendant does not, for example, seek to differentiate between statements
directly asserting a fact, such as his proclamations of innocence, and statements
that, at best, obliquely make such an assertion, such as his request to withdraw
his plea.
10
OEC 801(4)(b)(A) (“A statement it not hearsay if … [t]he statement is
offered against a party and is … [t]hat party’s own statement, in either an individual or representative capacity[.]”).
11
Additionally, the commentary to OEC 106 suggests that the rule is primarily a timing mechanism, allowing a party to admit supplemental evidence
contemporaneously (“at that time”) with the evidence it seeks to clarify, but not
rendering the other party the proponent of the supplemental evidence:
“Rule 106 has two distinct aspects. The first governs situations where an
opponent seeks to bring out additional evidence through cross-examination of
a witness. If part of an act, declaration, conversation, or writing is discussed
494 State v. Smith
provides its own basis of rendering inadmissible evidence
“otherwise admissible.” See Tooley, 265 Or App at 47-48
(determining that OEC 106 does not supply an independent
basis for admission of the defendant’s own hearsay statements made during a police interview following the state’s
admission of other portions of the same interview). As a
result, OEC 106 neither required the admission of defendant’s proffered statements nor altered their character as
hearsay and, consequently, the trial court did not err in concluding that the admission of any such statements would
have subjected defendant to impeachment under OEC 806.
Finally, defendant also argues, for the first time on
appeal, that the trial court’s ruling violated his right to a
fair trial under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Defendant
did not raise that argument at trial. Thus, as we did under
the same circumstances in Tooley, 265 Or App at 48, we
decline to address that argument on appeal. See ORAP
5.45(1) (“No matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court ….”).
Affirmed.
in the witness’ direct testimony, the rule allows cross-examination upon the
whole of the same subject. …
“The second aspect of Rule 106 applies when the opponent attempts to
offer supplementary evidence by means other than cross-examination. The
rule provides: ‘when a detached act, declaration, conversation or writing is
given in evidence, any other act, declaration, conversation or writing which is
necessary to make it understood may at that time also be given in evidence.’
This section of the rule significantly alters the normal order of proof by allowing one party to offer evidence during the presentation of the other party’s case.”
Kirkpatrick, Oregon Evidence § 106.04 at 69 (emphases added).
