295
Submitted April 29, 2020; Count 2 reversed and remanded, remanded for
resentencing, otherwise affirmed June 15, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH ALOYSIOUS JACOB II,
Defendant-Appellant.
Tillamook County Circuit Court
17CR24167; A167825
514 P3d 73
Defendant appeals from a judgment of conviction for first-degree theft, ORS
164.055 (Count 1), after the trial court merged a guilty verdict for theft of services, ORS 164.125 (Count 2), into Count 1. The jury’s verdict was unanimous
on Count 1, but not unanimous on Count 2. Among other assignments of error,
defendant challenges the trial court’s instruction to the jury that it could reach
nonunanimous verdicts and the court’s acceptance of the jury’s nonunanimous
verdict on Count 2. Defendant also challenges the court’s admission of evidence
related to defendant’s prior medication use and workers’ compensation claims.
Held: The Court of Appeals accepted the state’s concession that the trial court
erred as to the nonunanimous jury instruction and verdict on Count 2. However,
the trial court correctly found that the evidence of defendant’s pain medication
use and of his prior workers’ compensation claims was relevant; both had a tendency to show that the state’s factual theory was more probable or less probable
than without the evidence. Furthermore, evidence of defendant’s prior claims
was not unduly prejudicial. Accordingly, admission of that evidence was not
erroneous. All other assignments of error were unpreserved and did not warrant
plain error review.
Count 2 reversed and remanded; remanded for resentencing; otherwise
affirmed.
Jonathan R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
296 State v. Jacob
ORTEGA, P. J.
Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.
Cite as 320 Or App 295 (2022) 297
ORTEGA, P. J.
Defendant appeals from a judgment of conviction
for first-degree theft, ORS 164.055 (Count 1), after the trial
court merged a guilty verdict for theft of services, ORS
164.125 (Count 2) into Count 1. The jury’s verdict on Count 1
was unanimous; it reached an 11 to one verdict on Count 2.
Defendant raises multiple assignments of error. We reject
without written discussion defendant’s unpreserved third
assignment of error concerning portions of the state’s closing argument, as well as the fourth assignment of error,
challenging the imposition of restitution.
In the fifth and sixth assignments of error, defendant challenges the trial court’s instruction to the jury that
it could reach nonunanimous verdicts and the court’s acceptance of the jury’s nonunanimous verdict on Count 2.
We agree with and accept the state’s concession that
the court erred in giving the nonunanimous jury instruction and accepting the nonunanimous verdict on Count 2,
an error which requires reversal of the guilty verdict and
remand on that count. Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020). The erroneous jury
instruction does not, however, constitute structural error
and was otherwise harmless as to Count 1, which was based
on a unanimous jury verdict. See State v. Flores Ramos,
367
Or 292, 334,
478 P3d 515 (2020).
In the first and second assignments of error, defendant challenges the court’s admission of evidence related to
defendant’s prior medication use and workers’ compensation claims. We conclude that the trial court correctly found
that the evidence was relevant; we further conclude that
defendant failed to preserve his argument that evidence
of his pain medication requests and use was inadmissible
as unduly prejudicial and any error in its admission was
not plain error. Finally, we conclude that, although defendant’s arguments as to the admission of evidence of his prior
workers’ compensation claims was sufficiently preserved,
the trial court did not err in admitting that evidence. We
therefore reverse and remand the guilty verdict on Count 2,
remand for resentencing, and otherwise affirm.
298 State v. Jacob
The following background facts are procedural and
undisputed. Defendant received workers’ compensation
benefits, including medical care, after allegedly suffering
a work injury. SAIF Corporation (SAIF) eventually stopped
payments to defendant after concluding, based on an investigation, that he had not suffered any injury. The state
charged defendant with first-degree theft1 for “intentionally
commit[ting] theft of money” from SAIF and theft of services
for “intentionally, with intent to avoid payment,” obtaining
medical services by the “use of deception.”2 Before the claim
at issue, defendant had filed six workers’ compensation
claims between 2005 and 2013. The state’s case before the
jury included evidence of those prior claims as well as of
defendant’s prior medication requests and use.
In a combined argument for his first and second
assignments of error, defendant challenges certain evidentiary rulings admitting evidence of his history of use of and
requests for pain medication, and of his prior workers’ compensation claims. He contends that the challenged evidence
was inadmissible because it was not relevant under OEC
401 and was unfairly prejudicial under OEC 403. He argues
that, if we determine that his OEC 403 arguments are
unpreserved, we should conclude that the trial court plainly
erred in admitting the challenged evidence.
The state disagrees that the court erred. It argues
that the court correctly admitted the evidence as relevant
and argues that defendant did not preserve any argument
that the challenged evidence was unfairly prejudicial under
OEC 403. In any event, in the state’s view, defendant has
not demonstrated any abuse of discretion under that rule,
certainly not as a matter of plain error.
1
As relevant here, ORS 164.055(1)(a) provides that a “person commits the
crime of theft in the first degree if, by means other than extortion, the person
commits theft as defined in ORS 164.015 and … the total value of the property
in a single or aggregate transaction is $1,000 or more[.]” Further, as relevant
here, ORS 164.015(1) provides that a “person commits theft when, with intent to
deprive another of property or to appropriate property to the person or to a third
person, the person … [t]akes, appropriates, obtains or withholds such property
from an owner thereof[.]”
2
As relevant here, ORS 164.125(1)(a) provides that a “person commits the
crime of theft of services if[,] … [w]ith intent to avoid payment therefor, the
person obtains services that are available only for compensation, by force, threat,
deception or other means to avoid payment for the services[.]”
Cite as 320 Or App 295 (2022) 299
We begin with preservation as to the evidence relating to defendant’s history of use of and requests for pain
medication. As a general rule, claims of error not raised
before the trial court will not be considered on appeal. State
v. Wyatt, 331 Or 335, 343,
15 P3d 22 (2000). To preserve a
claim of error, “a party must provide the trial court with an
explanation of his or her objection that is specific enough
to ensure that the court can identify its alleged error with
enough clarity to permit it to consider and correct the error
immediately, if correction is warranted.”
Id. The rules pertaining to preservation of error also ensure that “parties
are not taken by surprise, misled, or denied opportunities to
meet an argument.” Davis v. O’Brien,
320 Or 729, 737,
891
P2d 1307 (1995).
Regarding the challenged evidence of defendant’s
prior medication requests and use, we conclude that he did
not adequately preserve his arguments under OEC 403, and
that defendant’s legal challenge does not meet the requirements for plain error review. The state does not contest preservation as to relevance, and we conclude that defendant
preserved his claim as to relevance but conclude that the
trial court did not err in admitting the challenged evidence.
Before trial, the state moved in limine to admit
evidence of defendant’s “medication seeking behavior.” The
evidence included a history of defendant taking a substantial amount of pain medication and of doctors questioning his need for those medications. It also included defendant’s requests for and receipt of pain medications during
the workers’ compensation claim at issue. The state’s theory was that defendant had two simultaneous motives for
his crimes—to obtain money and to obtain opioid pain
medication—and that the evidence was relevant to establish
those motives.
At the hearing on the state’s motion, defendant
objected to the evidence—both the past history of pain
medication-seeking behavior and that behavior in the present case—on relevance grounds. He also objected to historic
evidence on hearsay grounds and argued that it was prior
bad act evidence. He further argued that such evidence presented “a significant [OEC] 403 issue,” asserting without
300 State v. Jacob
elaboration that the jury would react negatively if the case
were treated as a drug case rather than a theft case.
The trial court ruled that evidence of pain medication-seeking behavior relating to the current workers’ compensation claim was admissible as relevant, assuming the state
laid a proper foundation. With respect to behavior arising
in conjunction with defendant’s prior worker’s compensation
claims, which the court referred to as “prior acts” evidence,
the court concluded that a foundational hearing would be
necessary “mid-trial” when the doctor was testifying to
determine admissibility.
During trial, defendant did object to medical records
coming in through SAIF’s fraud investigator, Wellman.
However, he did not object to other testimony regarding
medication-seeking behavior. At one point, the state asked
Wellman if he was aware that defendant “was taking a
large number of pain medications,” and defendant did not
object to the question or to Wellman’s affirmative testimony
in response. Additionally, Dr. Douglas testified extensively,
and without objection from defendant, about what medications defendant took and how much, noting that some medications were increased to the highest range that was still
safe to prescribe.
Defendant failed to preserve his challenge to the
admission of evidence of his prior medication requests and
use under OEC 403. Although he objected to the admission
of any such evidence during the hearing on the motion in
limine on both relevance and prejudice grounds, the court
indicated that it would permit expert opinion testimony
relating to defendant’s medication-seeking behavior and
reserved ruling on admissibility under OEC 403—yet defendant did not object to any of the specific testimony or evidence that was presented. Defendant’s motion in limine did
not function to preserve OEC 403 objections to specific testimony during trial. See State v. Pergande, 270 Or App 280,
282-83,
348 P3d 245 (2015). The purposes of preservation
were not met here as to any error in admitting the evidence
under OEC 403.
That leaves the question of whether admission of
the evidence was plainly erroneous under OEC 403. Our
Cite as 320 Or App 295 (2022) 301
consideration of an unpreserved claim of error generally
encompasses two steps. First, we determine whether the
trial court plainly erred. Error is “plain” if
“(1) it is an error of law, (2) the error is obvious, not reasonably in dispute, and (3) it appears on the face of the record,
i.e., the reviewing court … need [not] go outside the record
to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.”
State v. Reyes-Camarena,
330 Or 431, 435,
7 P3d 522 (2000)
(internal quotation marks omitted; ellipsis and brackets in
original). Second, if we determine that a trial court plainly
erred, we then consider whether we should exercise our discretion to correct that error. State v. Vanornum,
354 Or 614,
630,
317 P3d 889 (2013).
In addressing defendant’s claim of plain error, we
must consider whether the legal point underlying that claim
is “obvious, not reasonably in dispute.” State v. Horner, 272
Or App 355, 367,
356 P3d 111 (2015), rev den,
358 Or 794
(2016). In defendant’s view, “it is not reasonably in dispute
that evidence is inadmissible when it is substantially more
unfairly prejudicial than probative.” Defendant asserts that
“relying on [ ] character flaws is an improper basis for reaching a guilty verdict” and thus, the evidence was unfairly
prejudicial. However, the evidence at issue is not substantially more unfairly prejudicial than probative, as a matter
of law. As we later discuss, the medication-seeking evidence
was relevant and was limited to discussing what medications defendant took and how much. The evidence did not
rely on character flaws and the testimony did not discuss
defendant’s character. We conclude that the OEC 403 argument that defendant advances in support of his claim of
error is subject to reasonable dispute and conclude that the
asserted error is not obvious and therefore not plain.
We proceed to the merits on relevance, the challenge
that defendant did preserve. We review determinations that
evidence is admissible as relevant for errors of law. State
v. Titus, 328 Or 475, 481,
982 P2d 1133 (1999). Evidence is
relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
302 State v. Jacob
evidence.” OEC 401; see also State v. Pitt,
352 Or 566, 576
n 5,
293 P3d 1002 (2012) (so stating). “OEC 401 imposes a
relatively low threshold of relevance.” Pitt,
352 Or at 576 n 5.
Here, the court properly assessed relevance and took significant steps to limit the testimony to ensure that all evidence
was relevant. The court determined that if foundation was
laid, the doctors could offer their expert opinion that defendant’s behavior in this case constituted medication-seeking
behavior. The evidence admitted through Dr. Douglas’s testimony showed that defendant ended up being prescribed
a large amount of pain medication and that he did not, in
fact, have the pain that he was claiming to have. The evidence was relevant because it had a tendency to show that
the state’s factual theory, that defendant was essentially
seeking medication using the workers’ compensation system, was more probable or less probable than without the
evidence. Additionally, the evidence was relevant because
it was part of the crime—one of the services he was stealing was medical services to obtain prescriptions for pain
medications. The trial court did not err in admitting the
evidence.
We turn to the evidence related to defendant’s prior
workers’ compensation claims, beginning with whether defendant preserved his OEC 403 argument. Before trial, the
state also moved to admit evidence of defendant’s workers’
compensation claims as relevant to show that “[d]efendant
is familiar with the process, and how he can work it,” and
to demonstrate that the problems he complained of during
the claim at issue were actually caused by prior injuries.
Defendant argued that the evidence was irrelevant, but the
court agreed with the state and allowed admission of evidence of the prior claims and related injuries. It ruled that
the state would be allowed to offer a “barebones” explanation of how the system works to help the jury understand
the process, including evidence that once a claim is closed,
the person cannot assert the same claim again. The court
also ruled that the state would be allowed to offer evidence
in that context including whether the claim was settled or
denied, as well as in the context of showing “what the [prior]
injuries were.” The state agreed that it was not going to
claim that any of the past claims were fraudulent.
Cite as 320 Or App 295 (2022) 303
During trial, defendant objected on both relevance
and OEC 403 grounds to specific testimony from defendant’s employer and also to exhibit evidence of a list of his
prior claims. The objection to testimony from defendant’s
employer was in response to the question, “[d]id you ever
talk to [defendant] about what exactly happened in that previous accident?” His arguments regarding admission of that
evidence under OEC 403 are preserved. As already noted,
the state does not contest that defendant adequately preserved his OEC 401 challenges.
We turn to the merits of whether admission of evidence of defendant’s prior workers’ compensation claims
was in error, reviewing the court’s relevancy determination
under OEC 401 for errors of law, Titus, 328 Or at 481, and
its OEC 403 determination for abuse of discretion, State v.
Shaw,
338 Or 586, 609,
113 P3d 898 (2005). We conclude
that the trial court did not err in determining that the evidence was both relevant and not unfairly prejudicial.
Defendant argues that the prior injuries were relevant but not the workers’ compensation claims. However,
defendant’s objection to the testimony of his employer was
directed towards the “previous accident” that caused the
injuries and not the prior claim. The court, however, still
addressed the concerns regarding the claims. The court
delineated the questioning allowed and set limits to ensure
it had relevance to the state’s argument about the “preexisting” conditions and knowledge of the system. Moreover,
at issue during trial was whether defendant used deception
to open a new claim to obtain medical services or if he was
truthful about his symptoms. We conclude that the evidence
was relevant to show that defendant understood the workers’ compensation system, to show that he had prior injuries
that had been resolved, and to show that he knew he could
not base a new claim on prior injuries that had been the
basis for a previous claim that had settled or been closed.
Therefore, especially given the low threshold for relevance
and the court’s limiting instructions, we conclude that the
court did not err in its assessment of relevance.
As to the evidence being unfairly prejudicial, OEC
403 provides:
304 State v. Jacob
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
“An abuse of discretion occurs when a court exercises its discretion to an end not justified by, and clearly against, evidence and reason.” Koenig v. State Farm Mutual Automobile
Ins. Co., 315 Or App 28, 41,
500 P3d 68 (2021), rev den,
369
Or 507 (2022) (internal quotation marks omitted). As a general rule, OEC 403 favors admissibility and places the burden on the party seeking exclusion of the evidence, but it
also allows a means of excluding distracting evidence from
a trial. State v. O’Key,
321 Or 285, 320,
899 P2d 663 (1995).
The probative value of the evidence is “essentially a measure of the persuasiveness that attaches to a piece of evidence.” State v. Lawson/James,
352 Or 724, 757,
291 P3d 673
(2012). Put another way, it is the strength of the relationship
between the proffered evidence and the proposition sought
to be proved. The critical inquiry in determining whether
evidence is unfairly prejudicial is whether the evidence
improperly appeals to the preferences of the trier of fact for
reasons that are unrelated to the power of the evidence to
establish a material fact. State v. Supanchick,
245 Or App
651, 668,
263 P3d 378 (2011), aff’d,
354 Or 737,
323 P3d 213
(2014).
The trial court did not abuse its discretion in admitting the evidence. Defendant asserts that the evidence is
irrelevant and therefore has insubstantial probative value.
He further contends that the evidence is prejudicial because
it “encourages the jury to infer that defendant is guilty of
medical insurance fraud because he is lazy and addicted
to drugs,” implicating his character improperly. We disagree. First, the evidence was particularly probative for the
reasons argued by the state—to show that defendant was
familiar with the workers’ compensation system and knew
how to work it, and to establish the overlap in symptoms
from prior injuries. Second, none of the admitted evidence
was particularly inflammatory in light of the other evidence
of his prior workers’ compensation claims that was admitted without defendant’s objection. Third, the court limited
Cite as 320 Or App 295 (2022) 305
the line of questioning to ensure that character issues were
not brought up and made other limitations to avoid misuse
of the testimony. It only allowed a “barebones” explanation
of how the workers’ compensation system worked, and the
state agreed that it would avoid saying the prior claims were
fraudulent. Given the probative value of the evidence and
the court’s rulings that limited the evidence accordingly,
and given the other evidence that came in without objection,
we conclude that the trial court did not abuse its discretion
in finding the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
Count 2 reversed and remanded; remanded for
resentencing; otherwise affirmed.
