State v. Tat

                                        383

   Submitted February 25; convictions on Count 1 and Count 2 reversed and
 remanded, remanded for resentencing, otherwise affirmed April 7; petition for
                  review denied July 29, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                         HUNG CAM TAT,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       18CR59837; A171872
                                   

    Defendant appeals from judgments of conviction for two counts of identity
theft (Counts 1 and 2) and one count of second-degree forgery (Count 3). On
Counts 1 and 2 the jury returned a nonunanimous verdict, and the state concedes
that defendant is entitled to reversal on those counts. Defendant also argues that
Count 3 should be reversed because the trial court plainly erred when it did not
strike a police officer’s testimony that he did not believe what defendant told him
during a police interview. Held: State concession is accepted and Counts 1 and
2 are reversed. The trial court did not plainly err in failing to strike the officer’s
testimony, because defendant’s theory of the case raises the plausible inference
that defendant made a strategic decision to not object to that testimony.
    Convictions on Count 1 and Count 2 reversed and remanded; remanded for
resentencing; otherwise affirmed.



    Jerry B. Hodson, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    ORTEGA, P. J.
  Convictions on Count 1 and Count 2 reversed and
remanded; remanded for resentencing; otherwise affirmed.
384                                                  State v. Tat

         ORTEGA, P. J.
         Defendant appeals from a judgment of conviction for
two counts of identity theft (Counts 1 and 2) and one count
of second-degree forgery (Count 3). On appeal, defendant
argues that the trial court erred in giving a nonunanimous
jury instruction and in accepting nonunanimous verdicts on
Counts 1 and 2. The state concedes that defendant is entitled
to reversal on Counts 1 and 2 under Ramos v. Louisiana, 

, 

, 

 (2020). We agree,
accept the concession, and reverse and remand the convictions on Counts 1 and 2. As for the remaining conviction on
Count 3 by a unanimous verdict, we conclude that any error
in giving the nonunanimous jury instruction was harmless
as to that conviction. State v. Flores Ramos, 

,

 (2020).
         Defendant also assigns error on appeal to the trial
court’s failure to strike, sua sponte, testimony by Officer
Schull that he did not believe what defendant had told him
during a police interview. As explained below, we reject that
assignment of error and affirm defendant’s conviction on
Count 3.
         The testimony at issue occurred when Schull testified as to what happened when he confronted defendant,
who was attempting to cash a check made out to “Michael
P. Nguyen” using an identification card also for a Michael P.
Nguyen. That testimony is as follows:
      “[Officer Schull:] I think I first asked [defendant]
   what his name was, and he responded, kind of hesitantly,
   ‘Michael.’ And I said, ‘Okay, Michael, what were you doing
   there?’ And he said that he was trying to cash a check that
   he had found.
      “Q Did you believe him when he said his name was
   Michael?
      “A Because of his response, I was—I kind of doubted
   that he was being forthright.
      “Q When you say ‘because of his response,’ what was
   the—what about his response caused you to—
      “A When you ask most people what their name is, their
   response is immediate. His was a little hesitant and slow in
   coming.
Cite as 

 (2021)                               385

     “…
     “Q So once you don’t believe that his name is Michael—
     “A    Right, I told him—
     “Q —what happens next?
     “A Since I could sense the hesitancy, I told him that he
  needed to be honest with me. And again, he hesitated, and
  then he asked me if I wanted him to be honest, and I told
  him I did. And that’s when he told me that his real name is
  Hung Tat.
     “…
     “Q So what does he tell you specifically?
     “A He told me that he was cashing a check that he had
  found.
     “…
     “A —he told me that it was already made out to
  Michael Nguyen.
     “Q And what about the identification?
     “A    He said that he also found that.
     “Q Did you believe him when he told you that that was
  the circumstance of what’s going on?
     “A    No.
     “Q Why didn’t you believe him?
     “A Just—the story didn’t make sense to me; it didn’t
  ring true.
     “Q What about it doesn’t make sense?
     “A That he found an ID and a check made out to the
  person, and he’s lying about his name. I’m like, there’s got
  to be more to this than—it just can’t be that clean, if you
  will; it just didn’t make sense to me.
     “Q Did you tell him you didn’t believe him?
     “A    I did.
     “Q And what did you tell your purpose was in contacting him and trying to figure out what happened? Or did
  you tell him what you needed him to do for you?
386                                                    State v. Tat

      “A I told him I wanted him just to be honest so that I
   could document him accurately in my report.
       “Q And did he give you another statement about what
   was happening? Or what did he tell you in response to the
   ‘I need you to tell me’—
      “A   He said, ‘Okay, I’ll be honest with you.’
      “Q And then what did he come out with?
      “A He said that he found a wallet near Southeast
   136th Avenue and Southeast Powell. He said he went
   through it and removed the check that was already made
   out, and then he told me that one of his friends left Michael
   Nguyen’s identification at his apartment.
      “Q So what did he decide to do now that he’s found this
   check and he has ID?
      “A He told me that he filled out part of the check with
   the last name—middle initial and last name and that he
   signed the back of it.”
Defendant did not raise any objections during that testimony.
        Defendant also testified on his own behalf at trial
and gave another explanation why he was attempting to
cash the check. He testified that he knew Michael Nguyen
and that Nguyen had given him the check and identification
and asked defendant to cash the check. Defendant testified
that Nguyen told defendant that, if he cashed the check, he
would forgive an amount of money that defendant owed to
Nguyen. Defendant denied writing anything on the check,
denied telling the clerk that he was Nguyen, and maintained that he did not think he was doing anything wrong.
Defendant further testified that he felt “stupid” and “in
shock” when the police showed up. When defense counsel
asked why he did not tell the truth to the police, defendant
responded:
      “At first I didn’t want to throw, like, Michael under the
   bus, and, like, rat him out, pretty much, that—that’s what
   happened, so I just kind of made up a story until today,
   like—that we’re here, this far into the case, and Michael’s,
   like nowhere to be found.”
       On cross-examination, defendant admitted to telling Schull the statements that Schull recounted, with the
Cite as 

 (2021)                                387

exception that defendant denied having told Schull that he
altered the name on the front of the check. Defendant admitted that he had signed the back of the check with Nguyen’s
name when the clerk asked him to endorse the check.

         On appeal, defendant argues that the trial court
committed plain error when it failed to strike the instances
in which Schull testified that he did not believe defendant,
because that testimony impermissibly commented on defendant’s credibility. See, e.g., State v. Lowell, 

,

, rev den, 

 (2012) (reversing based on
plain error admission of an officer’s testimony that, when
he interviewed the defendant, he did not think the defendant “was being very honest and upfront” and that when the
defendant “sw[ore] to God” that he did not have sex with the
complainant, it indicated to the officer, based on his experience, that the defendant was not being truthful).

          We reject defendant’s argument. Here, the state’s
theory of the case was that defendant had lied about some
things he told Schull, but that he had told the truth when
he admitted to altering the name on the check in an attempt
to cash it with someone else’s identification. Defendant’s
theory of the case was that everything he said to Schull
was a lie, and that he had an innocent explanation for the
whole event. Those case theories were presented to the
jury in opening statements. Defendant’s theory of the case
depended upon the jury believing that he was lying when
he spoke to Schull, which raises the plausible inference
that defendant made a strategic decision to not object to
Schull’s testimony, as that testimony was consistent with
defendant’s theory of the case. Given those circumstances,
defendant’s claim does not qualify as plain error, nor is this
a case in which we would exercise our discretion to correct
it, even if it qualified as plain error. See State v. Vage, 

, 

, rev den, 

 (2016) (“It is
well established that an error does not qualify as plain error
if the record contains a competing inference that the party
may have had a strategic purpose for not objecting, and that
competing inference is plausible.” (Internal quotation marks
omitted.)). Accordingly, we affirm defendant’s conviction on
Count 3.
388                                         State v. Tat

       Convictions on Count 1 and Count 2 reversed and
remanded; remanded for resentencing; otherwise affirmed.