State v. Cano

                                       187

    Submitted April 29, 2020, affirmed March 24, petition for review denied
                         August 26, 2021 (

)

                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                GORDON KEITH KUULAI CANO,
                      Defendant-Appellant.
                 Deschutes County Circuit Court
                    16CR76866, 060533149;
                   A167516 (Control), A168410
                                   

    In this consolidated case, defendant appeals from a judgment of conviction of
one count of sodomy in the first degree, ORS 163.405, one count of sexual abuse in
the first degree, ORS 163.427, and one count of incest, ORS 163.525. He first challenges the trial court’s allowance of his impeachment with evidence of a prior conviction without balancing admission of that evidence under OEC 403. Secondly,
he challenges the trial court’s giving of a nonunanimous jury instruction. He
lastly challenges the revocation of his probation, dependent upon the resolution of
his evidentiary challenge. Held: Defendant did not preserve his evidentiary challenge, nor does it qualify as plain error, as the error was not obvious and beyond
dispute. The resolution on this first assignment of error also resolves defendant’s
third assignment of error. With regard to his second challenge, though defendant
preserved that issue, the jury’s verdict in this case was unanimous on all counts,
rendering the error harmless pursuant to State v. Flores Ramos, 

, 

 (2020).
    Affirmed.


   Stephen P. Forte, Judge. (Judgment - 3/23/2018 ; Amended
Judgment - 3/27/2018)
   Eric J. Bergstrom, Judge. (Judgment - 7/2/2018)
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   JAMES, J.
   Affirmed.
188                                                State v. Cano

        JAMES, J.
         In this consolidated case, defendant appeals from
a judgment of conviction in Case No. 16CR76866 of one
count of sodomy in the first degree, ORS 163.405; one count
of sexual abuse in the first degree, ORS 163.427; and one
count of incest, ORS 163.525. In Case No. 060533149, defendant appeals from a revocation of probation. Defendant
raises three assignments of error—the first challenging his
impeachment by a prior conviction without balancing admission of that evidence under OEC 403, the second challenging
the trial court’s giving of a nonunanimous jury instruction,
and the third conditionally challenging the revocation of his
probation, dependent upon our resolution of his first assignment of error. We affirm.
        Recitation of the facts underlying this case do not
serve the bench or bar and are not necessary in explaining our disposition. In this case, defense counsel elicited
defendant’s own exculpatory statement from the investigating detective on cross-examination. In response, the
state sought to admit defendant’s prior felony conviction as
impeachment.
        OEC 806 provides, in pertinent part:
   “When 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.”
         On appeal, defendant does not dispute the statement elicited was exculpatory, nor that OEC 806 permitted
admission of his prior criminal conviction for impeachment
purposes. However, defendant argues that admission of his
prior conviction was prohibited because its probative value
was outweighed by the prejudice, and that the trial court
failed to engage in OEC 403 balancing.
        Defendant acknowledges that prior Oregon cases
have held that OEC 609, which allows the impeachment of a
witness by certain criminal convictions, prohibits balancing
under OEC 403. See, e.g., State v. Venegas, 

, 

 (1993); State v. King, 

, 768
Cite as 

 (2021)                                             

 (1989); State v. Dick, 

, 

 (1988).
        However, defendant argues that more recent cases
such as State v. Williams, 

, 

 (2015)
and State v. Baughman, 

, 

 (2017),
establish that the Due Process Clause of the Fourteenth
Amendment to the United States Constitution requires
OEC 403 balancing, if requested by the defendant, anytime
the state seeks to introduce prior crimes, wrongs, or acts
against a defendant regardless of the purpose for which the
evidence is offered.
         Whatever potential merits of defendant’s argument
in this area, that argument in unpreserved. Defendant did
not ask for OEC 403 balancing at trial, let alone argue that
the Due Process Clause required such balancing. Defendant’s
argument on this point is not obvious and beyond dispute
and does not qualify as plain error under Ailes v. Portland
Meadows, Inc., 

, 

 (1991).1
         Defendant also challenges the trial court’s instruction to the jury that it could return a nonunanimous verdict.
Although defendant preserved this issue, the jury’s verdict
in this case was unanimous on all counts, rendering the
error harmless pursuant to State v. Flores Ramos, 

, 

 (2020).
           Affirmed.




    1
      Our resolution on this first assignment of error also resolves defendant’s
third assignment of error.