State v. Silas

No. 97               February 14, 2024                   739

   This is a nonprecedential memorandum opinion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.
               EDDIE TAMARAS SILAS,
                  Defendant-Appellant.
             Washington County Circuit Court
                  21CR32925; A178890

   Eric Butterfield, Judge.
   Submitted December 11, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant. Eddie T. Silas filed a supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
   SHORR, P. J.
   Convictions on Counts 7 and 8 reversed and remanded
for entry of judgment of conviction for one count of tampering with a witness; remanded for resentencing; otherwise
affirmed.
740                                                         State v. Silas

          SHORR, P. J.
         Defendant appeals from a judgment of conviction
for attempted murder in the second degree, ORS 163.115,
ORS 161.405 (Count 1); assault in the second degree, ORS
163.175 (Count 2); two counts of unlawful use of a weapon
(UUW), ORS 166.220 (Counts 3 and 4); felon in possession
of a firearm, ORS 166.270(2) (Count 5); harassment, ORS
166.065(4) (Count 6); and two counts of witness tampering, ORS 162.285 (Counts 7 and 8). Defendant raises four
assignments of error, two through counsel and two pro se.
We reject all but defendant’s second counseled assignment
of error. As to that assignment, the state concedes that the
trial court erred by failing to merge the guilty verdicts for
Counts 7 and 8. We agree and accept that concession. We
reverse and remand for resentencing so that the trial court
can merge the two witness tampering verdicts (Counts 7
and 8) into one conviction.
        Only a brief recitation of the underlying facts is
needed to provide context for our decision. At trial, the
prosecutor played for the jury a recording from a jail telephone call between defendant and an acquaintance. On that
recording, the jury heard defendant say, “I need a lawyer” in
response to the acquaintance’s question, “Have you talked
to anybody?” Almost immediately thereafter the prosecutor
told the jury to “disregard that” and moved on to another
recording.
         In defendant’s first assignment of error, defendant
argues that the trial court should have granted his motion
for a mistrial because it was improper for the jury to consider defendant’s statement that he “need[ed] a lawyer.”1
Defendant argues that the statement amounted to an exercise of the constitutional right to counsel in a context that
implied his guilt and thereby impeded defendant’s right to
a fair trial. We disagree. Defendant is correct that “[a] reference by the prosecutor … that the defendant exercised
a constitutional right, such as the right to counsel … may
prejudice the defendant’s ability to have a fair trial.” State v.
   1
     In his opening brief, defendant also argues that that testimony was inadmissible under OEC 401 and 403. Those arguments were not preserved for
appeal, so we do not reach them.
Nonprecedential Memo Op: 

 (2024)                                741

Veatch, 

, 

 (2008). But that
proposition is only true “if the jury is likely to infer that the
defendant exercised the right because he or she was guilty
of the charged offense.” 

 Accordingly, when the context
of an invocation makes an inference of guilt unlikely, “the
trial court does not abuse its discretion if it denies the defendant’s motion for a mistrial.” 

.
          Here, it is unlikely that the circumstances surrounding defendant’s statement to his acquaintance that he
“need[ed] a lawyer” created an inference of guilt such that it
prejudiced defendant’s right to a fair trial. Unlike the paradigmatic case where a defendant invokes their right to counsel in response to questions from the police or a state agent,
defendant stated that he “need[ed] a lawyer,” in response to
an acquaintance’s question “have you talked to anybody?”
Compare Veatch, 

 (likely adverse inference of guilt where jury was informed that the defendant
invoked the right to counsel in response to being asked
to submit to a potentially incriminating breath test) with
State v. Smallwood, 

, 

 (1977)
(no likely inference of guilt where jury was informed that
the defendant requested that his attorney be present at a
state administrated psychiatric evaluation).2 In addition,
the jury was already aware that these were recorded calls
that defendant made from jail, which gave context to why
defendant told his acquaintance he needed to speak with a
lawyer. Even assuming that it was an invocation of a right,
it was unlikely in that context that the jury would infer
that defendant discussed needing to talk to an attorney
because he was guilty rather than simply because he was
in jail. Further, the prosecutor immediately told the jury
to “disregard” the statement and promptly moved forward
with the trial. See Veatch, 

 (explaining that, when jury’s attention is directed away from invocation of right, the adverse inference of guilt becomes less
likely). The exhibit was redacted and the conversation was
    2
      This case is also unlike State v. Ashbaugh, 

, ___ P3d ___
(2024), which we decided on the same day as this case. In Ashbaugh, the prosecutor commented in closing argument on defendant’s invocation of his constitutional right to remain silent, suggested to the jury that it could infer defendant’s
guilt from that silence, and prejudiced defendant’s right to a fair trial. 

.
742                                             State v. Silas

not mentioned again. For those reasons, we conclude that
the trial court did not abuse its discretion in denying defendant’s motion for mistrial.
         Turning to defendant’s second assignment of error,
defendant contends that the trial court erred when it failed
to merge the guilty verdicts for Counts 7 and 8 (two counts
of witness tampering). The state concedes that error and we
accept the state’s concession. When a defendant is “found
guilty of multiple counts of tampering with a witness
based on a single act, the guilty verdicts merge under ORS
161.067, even though the counts involve different ways of
violating the statute.” State v. Jenkins, 

,

 (2016), rev den, 

 (2017). Here, the
state charged defendant with two counts of witness tampering based on his attempts to induce a witness to not appear
before the grand jury (Count 7) and to induce that witness
to provide false testimony (Count 8). Ultimately, the trial
court did not merge the guilty verdicts because it concluded
that there were “two charges for two separate phone calls,
two separate incidences of tampering.” Having reviewed the
record, there is no evidence from which a reasonable factfinder could find that the state relied on separate acts to
prove each count of witness tampering. On the contrary,
the record reflects, and the state concedes, that the state
“focused only on one jail call to support both charges.” As a
result, we conclude that the court erred by not merging the
verdicts and we reverse and remand for resentencing. ORS
138.257(4).
         We reject defendant’s pro se assignments of error
on procedural grounds. To be considered on appeal, an
issue “ordinarily must first be presented to the trial court.”
Peeples v. Lampert, 

, 

 (2008).
The basis for defendant’s first pro se assignment of error—
that he was denied his confrontation rights because the victim was not present at trial—was never argued before the
trial court and is thus unreviewable on appeal. Indeed, even
if defendant preserved that argument, he misunderstands
his constitutional right to confront testifying witnesses as
a right to compel witnesses to testify in the first instance.
See State v. Herrera, 

, 

 (1979)
Nonprecedential Memo Op: 

 (2024)            743

(explaining the right of confrontation). Lastly, defendant’s
second pro se assignment of error does not comply with
ORAP 5.45(3), which requires that “[e]ach assignment of
error must identify precisely the legal, procedural, factual,
or other ruling that is being challenged.” Defendant argues
that certain evidence should have been suppressed as a
matter of law, but fails to identify an evidentiary motion or
ruling that ever presented that legal issue to the trial court
for decision, i.e. a motion to suppress.
        In sum, we accept the state’s concession as to defendant’s second counseled assignment of error but conclude
that the court did not otherwise err.
        Convictions on Counts 7 and 8 reversed and
remanded for entry of judgment of conviction for one count
of tampering with a witness; remanded for resentencing;
otherwise affirmed.