State v. Misuraca

196                   January 10, 2024                No. 24

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                AIRIAN JOVAN MISURACA,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR28616; A177061

   Erik M. Bucher, Judge.
   Submitted June 20, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant. Airian Misuraca filed the supplemental briefs pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)           197

        ORTEGA, P. J.
         Defendant appeals from a judgment of conviction for
five counts of first-degree rape, eight counts of first-degree
sodomy, and three counts of first-degree sexual abuse, all
arising from acts he committed against his stepdaughter,
J, when she was seven and eight years old. For the reasons
that follow, we reject defendant’s three assignments of error
raised through counsel and four pro se assignments of error.
We therefore affirm.
         First Assignment of Error. In defendant’s first
assignment of error, he contends that the trial court erred
in excluding as irrelevant evidence concerning “the existence of an alternative suspect,” specifically, that a third
party had been accused of sexually abusing J’s stepbrother
and that J lived with that third party for a short time after
she was removed from defendant’s home. We review a trial
court’s determination of relevance for legal error, State v.
Montgomery, 

, 

 (2023), and
conclude that the proffered evidence was not relevant.
         “ ‘Relevant evidence’ means evidence having 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 evidence.” OEC
401. Under that provision, “[e]vidence is relevant so long as
the inference desired by the proponent is reasonable, even
if the evidence also could support a contradictory inference.” State v. Titus, 

, 

 (1999).
Defendant’s theory of relevance was that J mistakenly identified defendant as the perpetrator of the sexual offenses
and that the third party was the actual perpetrator. But
defendant’s proffered evidence that, after she was removed
from defendant’s home, J lived with a man who had been
accused of sexually abusing another child did not support a
reasonable inference that the third party had the opportunity or means to commit the charged offenses, which were
alleged to have occurred in defendant’s home while J lived
with defendant. Further, absent additional evidence that the
third party shared personal characteristics with defendant,
the proffered evidence did not support a reasonable inference
that J mistakenly identified defendant as the perpetrator. Cf.
198                                             State v. Misuraca

State v. Ventris, 

, 

 (1999) (evidence
that a third party had the motive, opportunity, and means to
murder the victim was relevant to the defense theory of mistaken identity); State v. Rodriguez, 

, 

 (1992) (evidence of a contemporaneous drug transaction
involving a suspect who matched the defendant’s description
was relevant to the defense theory of mistaken identity). We
therefore reject defendant’s first assignment of error.
         Second Assignment of Error. Defendant next claims
that the trial court plainly erred in allowing J’s aunt,
Stockdale, to vouch for J’s credibility when she testified
that she admonished J to “just speak the truth” and engage
in “real talk” before she went to her CARES interview.
Reviewing for legal error, State v. Sperou, 

,

 (2019), we conclude that the trial court did not
err, plainly or otherwise.
         Whether testimony “constitutes impermissible
vouching is measured by whether it conveys one witness’s
opinion of the truthfulness of another witness, or, instead,
provides information that permits the jury to make that
determination.” State v. Black, 

, 

 (2019). Stockdale’s testimony that she admonished J
to tell the truth in her CARES interview did not convey
Stockdale’s opinion that J in fact told the truth in that
interview, but instead provided information that permitted
the jury to make that determination. Cf. State v. Sanchez-Jacobo, 

, 

 (2012), rev den,

 (2013) (a witness’s statement that she was testifying pursuant to a plea agreement in which the court had
ordered her to tell the truth did not constitute impermissible vouching). We therefore reject defendant’s second assignment of error.
        Third Assignment of Error. In his third assignment of error, defendant contends that the sentence of life
in prison without the possibility of parole imposed pursuant to ORS 137.719 on each of his 16 counts of conviction is
disproportionate under Article I, section 16, of the Oregon
Constitution.1 We review a proportionality challenge under
   1
     We reject defendant’s argument under the Eighth Amendment to the
United States Constitution as unpreserved.
Nonprecedential Memo Op: 

 (2024)             199

Article I, section 16, for legal error. State v. Ryan, 

, 

 (2017).
         Article I, section 16, provides that “all penalties
shall be proportioned to the offense.” We consider three nonexclusive factors in determining whether a sentence is constitutionally proportionate to the offense: (1) how the severity of the penalty compares to the gravity of the offense; (2)
how the penalties for other, related offenses compare to the
penalty imposed; and (3) the defendant’s criminal history.
State v. Rodriguez/Buck, 

, 

 (2009).
When considering the proportionality of a penalty under a
recidivist statute like ORS 137.719, the first and third factors “overlap in comparing the severity of the penalty and
the gravity of the crimes that gave rise to the … sentence.”
State v. Althouse, 

, 

 (2016).
         Having reviewed the facts of this case and defendant’s criminal history, and having considered the arguments raised on appeal, we cannot conclude that this is one
of “those rare instances” in which the enhanced sentence
that the legislature authorized for a repeat offender is constitutionally disproportionate, even as we acknowledge that
the sentence imposed in this case is the second harshest
criminal penalty under Oregon law. Althouse, 

;
see also State v. Sokell, 

, 

 (2016).
         Pro Se Assignments of Error. In four pro se assignments of error, defendant argues that: (1) the prosecutor
made several improper statements during closing argument
that deprived him of a fair trial, (2) the state did not provide
sufficient notice under OEC 803(18a)(b), (3) the trial court
should have merged additional counts of conviction, and (4)
the state failed to present sufficient evidence to support his
convictions. We reject those claims of error because defendant failed to preserve them and does not seek plain-error
review. State v. Morrow, 

, 

,
rev den, 

 (2004) (“[P]ro se litigants are bound by
the same preservation rules that bind all other parties.”).
        Affirmed.