State v. Quandt

                                    453

Argued and submitted June 15, 2020; Counts 2 and 3 reversed and remanded,
remanded for resentencing, otherwise affirmed September 9, 2021; petition for
                review denied February 3, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  MARK DWAIN QUANDT,
                    Defendant-Appellant.
               Washington County Circuit Court
                    17CR78026; A169238
                                

   Ricardo J. Menchaca, Judge.
  Ryan Scott argued the cause and filed the briefs for
appellant.
   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 Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Counts 2 and 3 reversed and remanded; remanded for
resentencing; otherwise affirmed.
454                                         State v. Quandt

        PER CURIAM
         In this criminal appeal, a jury found defendant
guilty of eight counts of first-degree sexual abuse. At sentencing, the court concluded that the verdicts on certain
counts merged, and it entered a judgment convicting defendant of five counts. Defendant raises 12 assignments of
error.
         In defendant’s first through seventh assignments of
error, he contends that the trial court erred in admitting as
evidence certain statements by the investigating officer that
were recorded while interviewing defendant. Defendant
contends that the officer’s statements constituted impermissible vouching and were unduly prejudicial under OEC 403.
The trial court excluded some of the officer’s statements on
the ground that the statements constituted impermissible
vouching but admitted other statements after concluding
that they were admissible under State v. Chandler, 

, 

 (2016) (“[A] court does not err in admitting
an out-of-court statement as to the credibility of a witness
or nonwitness complainant if the statement is offered for a
relevant, non-opinion purpose.”) and conducting OEC 403
balancing. Having reviewed the record, the briefing, and the
relevant legal authorities, we agree with the state that the
trial court did not err in admitting the statements defendant challenges.
         In defendant’s eighth assignment of error, he contends that the court erred in excluding statements that
defendant made to the investigating officer that defendant
was willing to take a polygraph test. Defendant maintains
that the trial court was required to admit the statements
under the so-called “rule of completeness,” OEC 106, which
provides that, when part of a conversation is given in evidence by one party, the whole on the same subject, where
otherwise admissible, may at the same time be inquired into,
when it is necessary to make the admitted portion understandable. We conclude that defendant’s proffered evidence
was not necessary to make “understood,” or to put into context, the state’s proffered evidence, and, further, defendant
has not demonstrated that his statements were “otherwise
admissible.” See State v. Smith, 

, 455
Cite as 

 (2021)                             

 (2019), rev’d on other grounds, 

, 

 (2020) (OEC 106 not an independent basis of admissibility). Hence, the trial court did not err in excluding evidence
of defendant’s statements involving his willingness to take
a polygraph test.
          In defendant’s ninth and tenth assignments of
error, he contends that the court failed to make a sufficient
record of its OEC 403 balancing and that the record is insufficient to allow meaningful appellate review. Defendant does
not dispute that the court, in fact, engaged in balancing—
only that it failed to demonstrate that it did so. The state
responds that the court provided in writing its ruling and
legal reasoning for each statement defendant had moved to
strike. Further, that in response to defendant’s request for
a sufficient record, the court explained that, for each statement, it had weighed the considerations discussed in State v.
Mayfield, 

, 

 (1987), before ruling.
The state contends that the court demonstrated that it properly weighed the evidence when it struck, under OEC 403,
62 of the 167 statements defendant had asked to exclude.
See State v. Anderson, 

, 

 (2018)
(“[A] court will make a sufficient record under Mayfield if the
trial court’s ruling, considered in light of the parties’ arguments, demonstrates that the court balanced the appropriate considerations.”). For the reasons outlined by the state,
we agree that the trial court provided a sufficient record
that it balanced the considerations in OEC 403. We thus
reject defendant’s ninth and tenth assignments of error.
          In defendant’s eleventh assignment, he contends
that the court erred when it instructed the jury that it
could return nonunanimous verdicts and when it accepted
nonunanimous verdicts on Counts 2 and 3. Defendant is correct. The Sixth Amendment right to jury trial, as incorporated
against the states by way of the Fourteenth Amendment,
requires a unanimous verdict to convict a defendant of a
serious offense. Ramos v. Louisiana, 

, 

, 

 (2020). Accordingly, we reverse
and remand defendant’s conviction on Count 2. The guilty
verdict for Count 3, which the trial court merged into Count 2
and therefore disposed of without a conviction, must also be
reversed and remanded.
456                                          State v. Quandt

         In defendant’s final assignment of error, he contends that the trial court erred in failing to merge the guilty
verdicts on Counts 5 and 7. He contends that the record
was insufficient as a matter of law to allow the trial court
to determine that Count 5 arose from a different criminal
episode as Count 7. Evidence in the record supported the
trial court’s determination that defendant committed the
offenses during separate criminal episodes, thus the trial
court did not err in declining to merge Counts 5 and 7.
         Counts 2 and 3 reversed and remanded; remanded
for resentencing; otherwise affirmed.