State v. Fusitua

                                360

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
          Submitted September 14, affirmed October 12, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              SEMISI TOLOKANA FUSITUA,
                   Defendant-Appellant.
              Washington County Circuit Court
                 20CR62040, 20CN04761;
                A175529 (Control), A175530


  Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2022)                           361

           TOOKEY, P. J.
         In this consolidated appeal, defendant appeals a
judgment of conviction for one count of second-degree criminal mischief, ORS 164.354, raising three assignments of
error.1 In his first assignment of error, he contends that the
trial court erred when it “barred defendant from eliciting
lay-witness-testimony about his mental illness.” In his second assignment of error, he contends that the trial court
erred when it “failed to instruct the jury that it must concur
on which factual occurrence supported its verdict.” In his
third assignment of error, he contends that the trial court
erred when it “did not require the state to elect which factual occurrence it relied on to support defendant’s criminal
mischief in the second-degree charge.” We affirm.
        Regarding defendant’s first assignment of error,
assuming the trial court erred in excluding the testimony
of defendant’s mother and brother concerning defendant’s
mental health, defendant failed to make an offer of proof,
which precludes us from determining “whether any error in
excluding the testimony was prejudicial.” State v. Krieger,

, 

, rev den, 

(2018).
          Moreover, the trial court did not abuse its discretion under OEC 403 in determining that, with regard to evidence that an officer had called a mental health response
team regarding defendant, the danger of unfair prejudice
substantially outweighed the probative value. OEC 403
(“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice ….”); State v. Altabef, 

, 

 (2021) (“We review a trial court’s balancing under OEC 403 for an abuse of discretion and generally
defer to the trial court’s decision whether the probative value
of the evidence is substantially outweighed by the potential
for prejudice.” (Brackets and internal quotation marks omitted.)). Given the evidence that the trial court did allow, it
could permissibly determine within its discretion that the
   1
     Defendant also appeals a judgment of contempt. But defendant’s assignments of error on appeal pertain only to the judgment of conviction for second-degree criminal mischief. Consequently, we affirm the judgment of contempt.
362                                        State v. Fusitua

officer’s testimony that he called a mental health response
team was of limited probative value and that that probative
value was substantially outweighed by the danger of unfair
prejudice.
        Regarding defendant’s second and third assignments of error, in light of the record in this case, we conclude that, even assuming the trial court erred, any error
was harmless. State v. Ashkins, 

, 

 (2015).
        Affirmed.