State v. Hadd

                                       691

Argued and submitted May 4, 2022; portion of judgment requiring defendant to
 pay attorney fees reversed, otherwise affirmed January 11; petition for review
                        denied April 20, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    TONY EUGENE HADD,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR40302; A173360
                                  

     Defendant appeals from a judgment of conviction for two counts of second-degree rape and one count of first-degree sexual abuse. Defendant assigns
error to the denial of his motion to suppress arguing that detectives failed to
provide Miranda warnings and that they failed to clarify whether defendant
had invoked his right to remain silent when he stated, “See, now we’re done.”
Held: The trial court did not err in denying the motion to suppress. First, defendant failed to preserve the Miranda issue. Second, regarding the invocation question, a review of defendant’s words and the preceding circumstances, including
defendant’s unusual speech patterns and his demeanor, indicates that defendant
did not invoke his right to remain silent. Regarding the remaining assignments
of error, there was no abuse of discretion when the trial court admitted evidence
of uncharged misconduct involving defendant and the same victim. Although the
trial court erred when it provided a jury instruction that permitted nonunanimous verdicts, the error was harmless because the verdicts were unanimous. The
state concedes that it was plain error for the trial court to order defendant to pay
attorney fees. The Court of Appeals exercises its discretion to correct the error.
    Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.



    Henry Kantor, Senior Judge.
   Marc Brown, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
692                                         State v. Hadd

  Before Shorr, Presiding Judge, and Pagán, Judge, and
Armstrong, Senior Judge.
  PAGÁN, J.
   Portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed.
Cite as 

 (2023)                           693

        PAGÁN, J.
          Defendant appeals from a judgment of conviction
for two counts of rape in the second degree, ORS 163.365,
and one count of sexual abuse in the first degree, ORS
163.427. Defendant raises five assignments of error. In his
first assignment, defendant argues that the trial court erred
when it denied his motion to suppress statements made
prior to his indictment. In his second assignment, defendant
claims that the trial court erroneously admitted evidence of
uncharged misconduct. In his third and fourth assignments,
defendant takes issue with a jury instruction that permitted
the jury to find defendant guilty by nonunanimous verdicts.
And in his fifth assignment, defendant argues that the trial
court erred when it ordered him to pay attorney fees.
         We focus most of our attention on defendant’s first
assignment of error. For the reasons explained below, we
conclude that the trial court did not err in denying defendant’s motion to suppress. We also reject defendant’s second,
third, and fourth assignments of error. Regarding defendant’s fifth assignment, the state concedes that the trial
court erred by ordering defendant to pay attorney fees. We
agree and accept the concession. Accordingly, we reverse the
portion of the judgment requiring payment of attorney fees
but otherwise affirm.
           I. FACTUAL BACKGROUND AND
               PROCEDURAL HISTORY
         In April 2019, a 13-year-old girl disclosed to her
mother and to a school counselor that defendant, a 40-year-old friend of her mother, had sexually abused her. She indicated that the abuse began on a camping trip in the summer
of 2018 and lasted several months. On May 30, 2019, police
interviewed defendant at the Canby Police Department.
During the interview, defendant did not confess or admit
to the conduct, but he did make a number of inconsistent
statements.
        Detectives Rinell and Hicks met with defendant at
the Canby Police Department, rather than at the police station where the detectives worked, because the Canby location was closer to where defendant lived. Rinell asked most
694                                                             State v. Hadd

of the questions.1 The room consisted of one door and no
windows. The two detectives were seated between defendant
and the door. All three remained seated during the entire
interview.
         At the beginning of the interview, Rinell told defendant that the interview was being recorded, and defendant
confirmed that he understood he was free to leave. Rinell
told defendant that the door was unlocked, that the room was
just around the corner from the lobby, and that she wanted
to make defendant “as comfortable as possible.” Defendant
stated, “I’m aware, and I just want to know what this is
about.” What followed was a discussion of numerous topics
including defendant’s family, defendant’s legal problems,
and the victim’s mother, whom defendant accused of selling
methamphetamine. Defendant frequently talked over Rinell
and rarely provided direct answers to her questions.
        About 44 minutes into the discussion, defendant—
not the detectives—mentioned that the victim’s mother
had accused him of touching her daughter. When Rinell
attempted to follow up, defendant talked about how the victim’s mother also accused him of smoking marijuana with
the victim, which defendant denied. Rinell attempted to
focus on those accusations, but defendant began discussing
an incident during which he was arrested when he went to
a courthouse to contest a restraining order.
        Just over 56 minutes into the discussion, defendant
mentioned again that there were accusations against him.
Defendant stated that he was “open when it comes to things
that people are saying about me, I am open.” Rinell clarified
that defendant’s mother, who was waiting in the lobby, was
not going to know what was said in the room. Defendant
joked that he had told his mother that “if I don’t come out,
then somebody is getting broken.” Defendant began talking
about a negative encounter that he had with a police officer,
    1
      The record on appeal includes a recording of the entire interview, which
was offered as an exhibit and received for purposes of the pretrial hearing. The
record also includes video clips of excerpts from the interview that were played
to the jury during trial. In reviewing the denial of the motion to suppress, we do
not rely on the video clips. See State v. Pitt, 

, 

 (2012)
(“[W]e will evaluate a claim of pretrial error on the basis of the same record that
the trial court relied on in making the challenged ruling.”).
Cite as 

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and Rinell let him know that “if at any time you are more
comfortable having Detective Hicks not be here, I’m fine
with that too.” Defendant did not request that Hicks leave.
         Rinell accused defendant of providing marijuana to
the victim. Defendant denied doing so but admitted that he
may have “neglected by leaving stuff out.” After a discussion about whether there had been a Monster Energy can in
his Jeep that had been used to smoke marijuana, defendant
stated that Rinell was asking “return questions” that would
cast him in a negative light no matter how he answered
them.
         Rinell switched the discussion to the camping trip.
Defendant acknowledged that there were occasions during a
camping trip when he was alone with the victim. Defendant
believed that she had a “crush” on him because she told him
that she had a dream about him, but he told her that he did
not want to hear about it and to keep it to herself. When
Rinell asked about times when defendant was alone with
the victim in the car, defendant joked that he was “an asshole” in the car. Defendant stated that he “lacked a filter,”
and therefore he often said things that he should not. Then,
about an hour and twenty minutes into the interview, the
following exchange occurred:
       “DETECTIVE RINELL: She’s given me some specifics. She’s been interviewed by some professionals that
   interview kids all day long.
      “[DEFENDANT]:        Oh.
      “DETECTIVE RINELL: There’s been video tapes, she’s
   had tests done. Polygraph. I mean, all that stuff has been
   done.
      “[DEFENDANT]: It has?
      “DETECTIVE RINELL: So I know where we’re coming from. I’m just trying to ascertain reasons so that when
   I write my report—
      “[DEFENDANT]: Mm-hmm.
      “DETECTIVE RINELL: —we have a reason for why
   some of this stuff has happened. And whether that’s you
   kind of felt a role—filled a role of kind of a boyfriend role,
696                                                State v. Hadd

  because maybe she looks up to somebody older, a little more
  mature, someone who’s got their stuff together. Someone
  who’s strong and (indiscernible).
      “[DEFENDANT]:      Yeah.
      “DETECTIVE RINELL: Well, for her, you’re a
  grown-up. You’re a grown-up, looking for (indiscernible)
  exactly. You have your shit together and you pay attention
  to her. Like that’s a big deal.
      “[DEFENDANT]: (Indiscernible).
      “DETECTIVE RINELL:         Okay. So my point is—
      “[DEFENDANT]: I don’t signal anybody out.
     “DETECTIVE RINELL: —my point is you can—I
  know some things happened. I guess I’m looking to see
  what you can tell me about your involvement with her, or
  your physical involvement with her and how far it went.
      “[DEFENDANT]: There was no physical—
     “DETECTIVE RINELL: Knowing that—knowing that,
  and, again, I stress to you, I’m not lying to you.
      “[DEFENDANT]: (Indiscernible).
     “DETECTIVE RINELL: And I already told you—I
  already told you, your mom is sitting out there. Nobody is
  handcuffing you. The door’s right behind me.
     “[DEFENDANT]: Well, I don’t give a shit. (Indiscernible)—
      “DETECTIVE RINELL:         Like I’m trying to be this—
    “[DEFENDANT]: —like I said, my care level would
  be—
     “DETECTIVE RINELL:          I’m trying to make this lowkey—
     “[DEFENDANT]: So, basically you think I’m guilty of
  something—
      “DETECTIVE RINELL:         I’m not saying—
     “[DEFENDANT]: —and you’re not going to tell me.
  You want me to tell you (indiscernible)—
     “DETECTIVE RINELL:          Oh, you want me to tell you?
  Do you want me to tell you?
Cite as 

 (2023)                                697

     “[DEFENDANT]:       Yeah.
      “DETECTIVE RINELL: I mean, I’ll tell you. So here’s
  the deal. I don’t think—I don’t know you. I’m not here to say
  if you’re guilty or innocent—
     “[DEFENDANT]: Mm-hmm.
      “DETECTIVE RINELL: —to be honest with you.
  I know I have some facts over here that tell me certain
  things that I know happened, but there’s always reasons
  why things happen, right? It doesn’t mean that someone is
  going to go to jail. It doesn’t mean that someone is guilty.
  It doesn’t mean that, you know, things even have to move
  forward past today—
     “[DEFENDANT]: Now you’re crossing yourself over.
  Just get on with what you think that I done.
     “DETECTIVE RINELL: I don’t want to just say the
  word think. What I believe is—
     “[DEFENDANT]: Okay. Well, tell me what you believe.
     “DETECTIVE RINELL:          I believe—
     “[DEFENDANT]: I’m sorry.
     “DETECTIVE RINELL: No. That’s okay. What I
  believe is that you and [the victim] had intercourse. I
  believe that.
     “[DEFENDANT]: See, now we’re done.
     “DETECTIVE RINELL:          And—
     “[DEFENDANT]: Because you’re out of your mind and
  you already assume—
    “DETECTIVE RINELL:           Okay. So tell me why—tell
  me why I’m out of my mind?
     “[DEFENDANT]: Tell me why you would think that?
  You know why?
    “DETECTIVE RINELL:           Do you want me to tell you
  why?
     “[DEFENDANT]:       Absolutely.
     “DETECTIVE RINELL: —what do you know? What
  are you going to tell me? I want to tell you. I want to give
  you as much information as I can—
698                                            State v. Hadd

      “[DEFENDANT]: So (indiscernible)—
      “DETECTIVE RINELL: —so you can make your best
   decision and do the right thing.
      “[DEFENDANT]: Well, my decision is the truth.”
        After that exchange, the discussion continued for
another hour and 10 minutes. Defendant did not admit to
having sexual intercourse with the victim. At the end of the
interview, defendant left the police station.
         About three weeks later, a grand jury indicted defendant. The indictment consisted of 13 counts, including rape
in the second degree, ORS 163.365, sexual abuse in the first
degree, ORS 163.427, and sodomy in the second degree, ORS
163.395. Before trial, focusing on his statement, “See, now
we’re done,” defendant moved to suppress statements he
made to the detectives. The state filed a response arguing
that defendant did not invoke his right to remain silent and
that his statement “was closer to an angry outburst, or an
expression of disappointment …. It was so casually thrown
in the conversation that neither Detective Rinell, nor the
other detective in the room even picked up on the statement.”
        At the hearing on the motion, Rinell testified that
the general tone of the interview was “[c]onversational. It
did go up and down somewhat.” She described defendant as
very talkative. According to Rinell, defendant “would start
to answer a question but he would never give you a direct
answer[.]” In her view, defendant wanted to keep talking,
and she interpreted his comment as an indication that “[h]e
was frustrated with my statement.” Rinell pointed out that
defendant immediately followed up with a claim that the
detective was out of her mind. It did not occur to Rinell to
ask clarifying questions about whether defendant wanted
the interview to end. Rinell viewed the defendant’s statement as one in a series of “talk-over comments” that occurred
throughout the interview.
        The state argued that there were “two officers who
have extensive law enforcement experience,” and it occurred
to neither of them that defendant intended to invoke his
right to remain silent. The state pointed out that defendant was “talking over” the detective and interrupting her
Cite as 

 (2023)                                  699

throughout the interview. In the state’s view, by continuing
to talk, defendant indicated that he wanted the conversation to continue.
         After taking the matter under consideration, the
trial court denied the motion to suppress. In denying it, the
trial court ruled as follows:
       “Here we have a situation where this phrase came out
   of the middle of nowhere. It wasn’t a phrase that the defendant had used before in his conversations with the detectives. It was part of a very free-flowing conversation where
   both sides felt free to talk over each other. Didn’t seem to
   be rude. It just seemed to be the way the conversation was
   going.
      “And clearly there was a level of frustration that was
   building with the defendant. I’m a little concerned that the
   detectives didn’t seem to pick up on that so much and that
   rather they might—they might have noticed that.
      “But the standard really is, you know, whether a reasonable police officer would determine that in those circumstances. Preliminar[ily,] … I do not believe the defendant
   made an unequivocal request to stop.
      “To me, the only standard here is whether it was close
   enough to equivocal to warrant the police officers to inquire
   further. I don’t think it gets to unequivocal at all.
       “So let me make my notes here. Just before, the defendant used a different phrase where he talked about the
   detective crossing—you’re crossing yourself over, which
   was another interesting phrase. And to me it suggested
   that the defendant would use somewhat unusual phrases
   to communicate his concerns and meaning, and not every
   phrase has to be perfectly understandable to both sides to
   have a meaningful conversation.
      “For example, I don’t know if they knew what he meant
   by crossing yourself over. I could see two or three different
   meanings coming out of that.
      “The phrase, ‘Now we’re done’ in the context of how he
   put it was he didn’t say what we’re done with. He didn’t indicate in any sense that he was done with talking, because he
   didn’t take a breath and just kept talking.
700                                                State v. Hadd

       “In order for the police officer—the detectives to have
   inquired further, they would have had to literally almost
   yell and to stop him from talking, and whenever they tried
   to do that in the other minutes, I assumed whenever they
   tried to talk over and try to redirect him, that didn’t work.
   It just flat out didn’t work. He was determined to say what
   he wanted to say.
      “So, under the circumstances of this case, I’m going to
   conclude that it was reasonable for the detectives to not
   conclude that this was an equivocal request to stop so that
   they would have to inquire further.
       “I do think it’s a close call. I appreciate that. But it
   doesn’t seem to compare well to the other cases that the
   parties have cited to me. I think it falls into free-flowing
   conversation with a phrase that didn’t really communicate
   to a reasonable person or a reasonable police officer that
   the intent was to stop the conversation. So I’m going to
   deny the motion.”
         The trial court also addressed motions pertaining to
evidence of prior sexual encounters between defendant and
the victim on a camping trip and after smoking marijuana
in a Jeep. The state initially filed charges against defendant
based on those incidents, but the charges were dismissed
after it was discovered that the incidents occurred in a different county. Nevertheless, the state argued that the evidence was relevant and admissible. Defendant argued that
the evidence was unfairly prejudicial. After engaging in
OEC 403 balancing, the trial court ruled that the evidence
was admissible subject to a limiting instruction.
          During trial, the state used inconsistent statements
from defendant’s May 2019 interview to attack his credibility
and to portray him as dishonest. The jurors also heard testimony regarding interactions between defendant and the victim that were not alleged as crimes; namely, their use of marijuana and sexual encounters on a camping trip and in a Jeep.
Defendant testified at his trial, and he denied having any sexual contact with the victim. A jury found defendant guilty of
nine counts. The trial court merged several counts and entered
convictions on two counts of second-degree rape and one count
of first-degree sexual abuse. Defendant was sentenced to 180
months in prison and ordered to pay $500 in attorney fees.
Cite as 

 (2023)                                                   701

                               II. ANALYSIS
A.    The First Assignment of Error
         In his first assignment, defendant argues that the
trial court erred when it denied his pretrial motion to suppress. First, defendant contends that he was in compelling
circumstances, but the detectives failed to provide Miranda
warnings, which violated defendant’s rights under Article I,
section 12, of the Oregon Constitution and under the Fifth
Amendment to the United States Constitution.2 Second,
defendant argues that he invoked his right to remain silent
when he stated, “See, now we’re done,” and the detectives,
at a minimum, should have sought to clarify his statement.
Because the detectives failed to do so, defendant argues
that all statements he made after that point should have
been suppressed. Defendant further argues that the error
in denying his motion was not harmless.
         The state responds that defendant’s argument regarding the failure to provide Miranda warnings was not preserved, and, in any case, it has no merit because defendant
was not in custody or compelling circumstances. The state
argues that defendant did not invoke his right to remain
silent, and, even if his statement could be construed as an
invocation, the detectives did not violate his constitutional
rights by continuing to question him because he was not in
custody or compelling circumstances. We are not persuaded
that defendant invoked his right to remain silent.
      1. Legal principles
         We review the denial of a motion to suppress for
errors of law. State v. Tellez-Suarez, 

, 

, rev den, 

 (2021). We defer to the factual
findings of the trial court—including as to what transpired
during a custodial interrogation and what a defendant did
or did not say. State v. Avila-Nava, 

, 

       In Miranda v. Arizona, 

, 

, 

 (1966),
the United States Supreme Court held that the Fifth Amendment requires particular warnings to be given when a person is in custody or “otherwise deprived
of his freedom of action in any significant way.” Article I, section 12, of the Oregon
Constitution is an independent source for warnings similar to those required
under the Fifth Amendment. State v. Nieman, 

, 271 n 1, 

, rev den, 

 (2011).
702                                               State v. Hadd

714 (2014). However, we assess anew whether those facts
suffice to meet constitutional standards. State v. James, 

, 

 (2005).
         Article I, section 12, provides, in part, that “[n]o person shall be … compelled in any criminal prosecution to
testify against himself.” That constitutional guarantee protects a person’s right against compelled self-incrimination.
Avila-Nava, 

; State v. Sanelle, 

, 

 (2017), rev den, 

 (2018). “Both
the right to counsel during interrogation and the right to
silence are derivative of that broader right.” Tellez-Suarez,

.
         “The right attaches only when a person is in custody or other compelling circumstances.” State v. Dodge,

, 

, rev den, 

 (2019)
(discussing right to counsel). Whether the circumstances
were compelling is “the predicate issue” when analyzing
whether there has been a violation of the right against self-incrimination. State v. Turnidge (S059155), 

, 

 (2016), cert den, ___ US ___, 

(2017). If a defendant is in custody or compelling circumstances, then “police must give Miranda warnings.” State v.
Roble-Baker, 

, 

 (2006). In determining whether the circumstances were compelling, our
“overarching inquiry is whether the officers created the sort
of police-dominated atmosphere that Miranda warnings
were intended to counteract.” 

.
         Defendants who waive their Miranda rights may
subsequently invoke them. See State v. Nichols, 

, 

 (2017) (“The next question is whether,
after initially waiving his right against compelled self-incrimination under Article I, section 12, defendant
unequivocally invoked that right shortly thereafter ….”);
see also State v. Castillo, 

, 

(2018), rev den, 

 (2019) (“The right to remain
silent includes the right to cut off questioning after an initial waiver.” (Internal quotation marks omitted.)). In determining whether there was an invocation, and if so, whether
it was equivocal or unequivocal, we look to “the defendant’s
words, in light of the totality of the circumstances at and
Cite as 

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preceding the time they were uttered[.]” Avila-Nava, 

. If the invocation is unequivocal, the questioning
must cease. State v. Hickman, 

, 

 (2017). If the invocation is equivocal, law enforcement
can either terminate the questioning or seek to clarify the
statement. Id.
    2. Preservation
         Before applying those principles, we address the
state’s contention that defendant did not preserve the argument that his right against self-incrimination was violated
by the failure to provide Miranda warnings. We agree with
the state that defendant failed to preserve the issue.
          In general, if an issue has not been presented to
the trial court, we will not consider it on appeal. Peeples
v. Lampert, 

, 

 (2008). The purposes of the preservation requirement are: (1) to apprise
the trial court of a party’s position such that it can consider
and rule on it, which “may obviate the need for an appeal”;
(2) to ensure fairness to the opposing party by avoiding surprise and allowing that party to respond to a contention;
and (3) to foster full development of the record. 

.
In State v. Hall, 

, 

 (2010), we
determined that the defendant did not preserve his Miranda
argument for appellate review. As we explained in Hall,
“[h]ad the state been on notice that defendant intended to
maintain a Miranda argument, it is quite possible that the
factual record would have developed differently with respect
to whether the surrounding circumstances were compelling.” 

.
         The same reasoning applies here. First, if defendant had argued below that the detectives failed to provide
Miranda warnings, then the record might have developed
differently, including by developing facts regarding how
defendant arrived at the Canby Police Department and how
he intended to get home afterwards. Cf. Roble-Baker, 

 (noting that circumstances were compelling in part
because the detective drove the defendant from her work
to the police headquarters and she was depending on them
to drive her back). Second, it would be unfair to the state
704                                                          State v. Hadd

to address the Miranda issue on appeal because the state’s
questioning of Rinell at the pretrial hearing focused on the
invocation question, and the state would likely have asked
different or additional questions if defendant had argued
below that he should have been Mirandized.3
         And third, if the Miranda issue had been raised
below, then the trial court might have concluded that the
circumstances were not compelling, which might have obviated the need to address the invocation question. See State
v. Davis, 

, 

 (2011) (“[T]he court
has never held that an individual’s invocation of a right to
remain silent in the absence of custody or other compelling
circumstances precludes police from attempting to obtain
incriminating information from that individual.”). Based
on the policies or purposes underlying the preservation
requirement, we conclude that defendant failed to preserve
the issue of whether his rights were violated by the failure
to provide Miranda warnings.
          In arguing otherwise, defendant acknowledges that
he did not orally raise the Miranda issue at the pretrial
hearing, but he claims that the issue was raised in his written motion. We are not persuaded. Defendant’s motion to
suppress mentioned the need to advise suspects of their
Miranda rights, but it did so by way of introduction to the
only issue raised in the written motion, which was that the
detectives failed to honor defendant’s “invocation of his right
to remain silent.” At the hearing on the motion, defendant’s
attorney stated, “I don’t believe that he was Mirandized. But
… the issue that I’m raising is that about halfway through
this interview, which has been conversational, it gets more
confrontational and at the moment when it gets confrontation[al], [defendant] says ‘We’re done here.’ … And that just
sort of gets ignored.” Therefore, in both his written motion
and at the hearing, defendant did not raise the issue of

    3
      We recognize that nothing in the record establishes that Miranda warnings
were given. However, because defendant focused on whether he had invoked his
right to remain silent, and because Rinell was not asked whether Miranda warnings were given, we cannot rule out the possibility that the detectives provided
Miranda warnings. At the beginning of the recorded interview, Rinell confirmed
that defendant understood that he was free to leave, but it is not clear whether
there was a prior discussion of Miranda rights.
Cite as 

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whether the detectives failed to provide Miranda warnings.
We therefore conclude that defendant failed to preserve that
issue.4
     3. No invocation of the right to remain silent
         We recognize that an invocation of the right to
remain silent “in noncompelling circumstances does not preclude police from attempting to obtain incriminating information from a defendant at a later time when the defendant
again is not in custody or compelling circumstances.” State
v. Schiller-Munneman, 

, 

 (2016).
In the instant case, we express no opinion regarding the
trial court’s failure to make a threshold finding that the circumstances were compelling before addressing the invocation question. The parties never argued as much to the trial
court, and it thus never addressed that issue. Turning to
the only issue that was argued, we agree with the state that
defendant did not invoke his right to remain silent when he
stated, “See, now we’re done.”
         Whether a defendant’s statement was an invocation
and, if an invocation, whether it was equivocal or unequivocal are questions of law. Tellez-Suarez, 

.
In making those determinations, we review the defendant’s
words in light of the preceding circumstances “to ascertain
whether a reasonable officer would have understood that the
defendant was invoking that right.” Avila-Nava, 

. “We consider a suspect’s words in context, including the
preceding words spoken by the suspect and the interrogating officer; the demeanor, gestures, and speech patterns of
the suspect; the demeanor and tone of the interrogating officer; and the point at which the suspect allegedly invoked the
right against self-incrimination.” Tellez-Suarez, 

.
         In determining whether there was an invocation,
courts typically begin with the defendant’s words before considering them in context. See Nichols, 

 (so
    4
      Defendant does not request plain-error review. Therefore, we do not undertake the analysis. See ORAP 5.45(7) (“The court may decline to exercise its discretion to consider plain error absent a request explaining the reasons that the
court should consider the error.”).
706                                             State v. Hadd

doing). In cases of unequivocal invocations, the defendant
often expresses “his or her intent by first self-identifying as
the actor (‘I’) and then by clearly stating the desired action
or view relating to the right[.]” 

. Examples include,
“ ‘I won’t answer any questions,’ ” and “ ‘I don’t want to talk
anymore.’ ” 

.
         Those features are not present here. Instead, defendant stated, “See, now we’re done.” It is not clear who defendant had in mind by “we,” and, as the trial court pointed
out, defendant did not say what he was done with. If by
“done” he meant that he wanted something to end, then it is
not clear whether he meant that he and the detectives were
“done” talking, or whether he meant that his relationship
with the victim and her mother was “done.” At the hearing on the motion, Rinell testified that it did not even occur
to her that defendant might have been invoking his right
to remain silent. Instead, she interpreted his statement as
an expression of frustration. When considered in isolation,
defendant’s statement is ambiguous.
         However, when considered in the context of the preceding circumstances, we conclude that defendant did not
invoke his right to remain silent. As noted by the trial court,
defendant often used odd phrases and peculiar expressions:
he described the detective as “crossing herself over,” and he
took issue with the detective’s use of what he termed “return
questions.” He also stated, “I don’t signal anybody out,” and
he joked that he had told his mother that “if I don’t come
out [of the interview], then somebody is getting broken.”
Considered in that context, defendant’s statement, “See,
now we’re done,” was another unusual expression with no
clear meaning. See Avila-Nava, 

 (court may
consider the defendant’s “speech patterns” in determining
whether there was an invocation of rights).
        Like in Nichols, defendant’s statement was made
in response to a statement by a detective that “went to
the core of the entire investigation,” but, unlike the defendant in Nichols, defendant’s statement did not occur near
the beginning of the interview. Nichols, 

.
Instead, defendant’s statement occurred about one hour
and 20 minutes into an interview during which defendant
Cite as 

 (2023)                             707

rarely answered questions in a direct manner and felt free
to talk about a broad range of topics. Based on the preceding
circumstances, in which defendant showed no hesitancy in
responding to questions, albeit indirectly, we agree with the
trial court that the statement at issue “came out of nowhere.”
That circumstance cuts against construing his statement as
an invocation of the right to remain silent. See 

(focusing in part on how the interview unfolded in determining whether there had been an invocation of rights).
         Considering defendant’s demeanor, it was defendant who first brought up the allegations against him, and,
in the moments before Rinell stated that she believed defendant had intercourse with the victim, defendant requested
that the detective “[j]ust get on with what you think that I
done.” According to defendant, he “lacked a filter,” and he
often said things he should not. Indeed, as noted by the trial
court, the statement at issue was made as “part of a very
free-flowing conversation where both sides felt free to talk
over each other.” Defendant’s demeanor did not convey a
desire to end the discussion.
         Further, Rinell’s demeanor and tone were not hostile or threatening. She informed defendant at the beginning of the interview that he was not detained. Rinell, who
remained seated throughout, reiterated that point just
moments before informing defendant that she believed
that he had intercourse with the victim. Additionally, the
other detective said very little during the interview, and
Rinell asked defendant whether he would prefer if she left
the room. When construed in the context of the totality of
the circumstances existing up to the point when he made
the statement, we conclude that defendant’s statement was
not an invocation of the right to remain silent. See State v.
Smith, 

, 

 (1990) (when analyzed
in context, the defendant’s statement “ ‘I have nothing to
say’ ” was not an invocation of the right to remain silent;
instead, the defendant exercised his right to answer some
questions but not others).
        What occurred after defendant made the statement
bolsters our conclusion. We recognize that “an accused’s
post request responses to further interrogation may not be
708                                             State v. Hadd

used to cast retrospective doubt on the clarity of the initial
request itself.” Avila-Nava, 

 (internal quotation marks omitted). At the same time, if the statement at
issue is immediately followed by words inconsistent with the
right to remain silent, then they may shed light on whether
the statement itself was intended as an invocation of rights.
See Tellez-Suarez, 

 (where “ ‘I don’t
have a lawyer right now’ ” was immediately followed by the
statement, “ ‘but let’s continue,’ ” we concluded that there
was no invocation of the right to counsel).
         Here, defendant’s statement, “See, now we’re done,”
was separated by little more than a breath from his statement, “Because you’re out of your mind and you already
assume—.” Defendant also followed up immediately with
questions about why Rinell would believe that he had intercourse with the victim, which is inconsistent with a desire to
remain silent. As the trial court pointed out, in order for the
detectives to have sought clarification, they would have had
to “almost yell and to stop him from talking, and whenever
they tried … [it] didn’t work. He was determined to say
what he wanted to say.” We agree with the trial court that
defendant did not invoke his right to remain silent and the
trial court did not err in denying the motion to suppress.
See State v. Meade, 

, 

 (1998)
(“[A] suspect’s own actions may, in a given case, eliminate
any need for clarification by the officers.”).
        Unlike Article I, section 12, the Fifth Amendment
does not require police to ask clarifying questions when an
invocation is equivocal. See Avila-Nava, 

 n 3.
Here, we have concluded that there was no invocation at all.
As a result, there could not have been a violation of defendant’s Fifth Amendment rights. See 

 at 612 n 7 (discussing Fifth Amendment cases from other states concluding
that there was no invocation); see also Tellez-Suarez, 

 (discussing the comparable Fifth Amendment
invocation analysis).
B.    The Remaining Assignments of Error
        We briefly address defendant’s remaining assignments of error. In his second assignment, defendant contends that the trial court erred by admitting evidence of
Cite as 

 (2023)                                              709

uncharged misconduct because it was unfairly prejudicial.
The evidence concerned sexual encounters between defendant and the victim on a camping trip and after smoking
marijuana in a Jeep. Before trial, the state filed a motion to
admit the evidence and defendant filed a motion to exclude
it. After considering the probative value of the evidence and
whether that value was outweighed by the risk of unfair
prejudice to the defendant under OEC 403, the trial court
ruled that the evidence was admissible subject to a limiting
instruction.
         “We review for abuse of discretion a trial court’s
determination under OEC 403 that the probative value of
proffered evidence is not substantially outweighed by the
danger of unfair prejudice.” State v. Terry, 

, 

 (2021). “Our role on appeal is to assess
whether the trial court’s decision falls within the range of
legally permissible choices.” State v. Altabef, 

, 

 (2021).
         Here, there was no abuse of discretion. The evidence was relevant for two nonpropensity purposes: to show
defendant’s sexual interest in this particular victim and to
explain the victim’s delayed reporting. See State v. Gonzalez-Sanchez, 

, 

,
rev den, 

 (2017) (addressing same two theories of
relevance).5 And to mitigate the danger of unfair prejudice,
the trial court provided a limiting instruction explaining
how the jury could and could not use the evidence. See State
v. Brown, 

, 

, rev den,

 (2015) (risk of unfair prejudice can be mitigated
by use of a limiting instruction). We conclude that the trial
court did not abuse its discretion in its OEC 403 balancing. See Altabef, 

 (“[I]t was within the
legally permissible range of outcomes for the trial court to

     5
       We recognize that “regardless of whether evidence is offered to show a
defendant’s ‘sexual purpose’ in committing the charged offense, that evidence
is inadmissible under OEC 404(3) if the theory of admissibility reduces to an
argument about defendant’s character.” State v. Cave, 

, 

 (2022). However, that analysis does not apply because in the instant case the
uncharged misconduct involved the same victim. See State v. Tinoco-Camarena,

, 

, rev den, 

 (2021) (distinguishing
State v. McKay, 

, 

 (1990) on that basis).
710                                             State v. Hadd

determine that the probative value of the prior instances of
sexual contact with [the same victim] outweighed the potential for prejudice.”).
         In his third and fourth assignments of error, defendant takes issue with a jury instruction permitting the jury
to find defendant guilty by nonunanimous verdicts. Under
Ramos v. Louisiana, 

, 

, 

 (2020), the trial court erred in giving the instruction.
However, the error was harmless because all of the jury’s
verdicts were unanimous. State v. Kincheloe, 

, 

 (2020), cert den, ___ US ___, 

(2021).
         Finally, the state concedes that it was plain error
for the trial court to order defendant to pay $500 in attorney
fees. We agree and accept the concession. For the reasons
stated in State v. Harris, 

, 

 (2018), we conclude that it is appropriate to exercise our
discretion to correct the error. Accordingly, we reverse the
portion of the judgment requiring defendant to pay $500 in
attorney fees.
        Portion of judgment requiring defendant to pay
attorney fees reversed; otherwise affirmed.