State v. Blake

512                   March 13, 2024                 No. 176

   This is a nonprecedential memorandum opinion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.
               EDWARD AUGUSTUS BLAKE,
                   Defendant-Appellant.
                 Lane County Circuit Court
                   19CR63814; A178252

   Charles M. Zennaché, Judge.
   Submitted January 24, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
   JOYCE, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)                            513

          JOYCE, J.
          Defendant appeals from a judgment of conviction
for first-degree rape and first-degree sodomy, crimes that
he committed against the victim after she became incapacitated and physically helpless because defendant drugged
her into unconsciousness.1 He raises six assignments of
error. We affirm.
          Election on factual occurrences: In his first two
assignments of error, defendant challenges the state’s failure
to elect pretrial which factual occurrences supported each
charge and the trial court’s failure to sua sponte instruct
the jury that it must concur on which incident supported
each charge. As to the first claim of error, defendant invited
the error. Before trial, defendant filed a motion to elect acts
that constituted the alleged crimes. In response, the state
argued that the recording of the grand jury proceedings, in
which the victim described “specific acts[,]” put defendant
on notice as to the acts that underlay the charges. The state
asked the court to allow the state to wait until the close of
its case to make the election.
          Defendant then agreed that if the state was representing that the acts that it was relying on were the ones
“discussed in grand jury, great.” He elaborated that if “the
acts that [the victim] discussed at grand jury are the acts
that—that they’re calling criminal conduct, then I think
they’ve made their election, and the defendant is on notice.”
Defendant explained that he was concerned about acts
being raised at trial that were “not charged throughout the
discovery,” but again stated that the grand jury proceedings gave defendant “notice … of what acts are criminal,
and we can move forward.” The trial court, after taking the
motion under advisement to listen to the grand jury testimony, denied the motion.
        Thus, defendant repeatedly assured the court that
because the state was relying on the testimony from the
grand jury proceeding, the state had made its election, defendant was on notice, and the court and parties could “move
     1
       The jury acquitted defendant of one count each of first-degree rape and
first-degree sodomy, and the court dismissed several other counts at the state’s
request.
514                                                            State v. Blake

forward” to other matters. On appeal, defendant argues that
the trial court erred in failing to require the state to elect
which act it would rely on for each count before trial. But in
light of his statements to the trial court described above,
the error that he claims on appeal was invited. See State v.
Kammeyer, 

, 

, rev den, 

 (2009) (invited error doctrine applies when a party
has “invited the trial court to rule in a particular way under
circumstances that suggest that the party will be bound by
the ruling or will not later seek a reversal on the basis of
that ruling”).
         We also reject defendant’s related claim of error,
that the trial court was required to sua sponte give the jury
a concurrence instruction. Even if, as defendant suggests,
the error is plain and not harmless, we will not exercise our
discretion to correct it. In determining whether to exercise
our discretion, “we must balance the gravity of any error,
in the context of the nature of the case, against … other
factors,” including “whether the trial court was, in some
manner, presented with both sides of the issue and given
an opportunity to correct any error.” State v. Inman, 

, 

 (2015), rev den, 

 (2016) (internal quotation marks and citation omitted).
In determining whether any error was grave, we consider
the likelihood that the error affected the outcome of the proceeding below. State v. Ramirez, 

, 

 (2007).
         The necessity of jury concurrence is not a new legal
concept. To the contrary, it has long been imbedded in the
law. See State v. Rodriguez-Castillo, 

, 

 (2007), rev’d on other grounds, 

, 

 (2008) (declining to exercise discretion because jury concurrence requirement was long established). In fact, defense
counsel appeared to be aware, at least to some degree, of
the importance of concurrence when they asked, pretrial,
to have the state elect which incidents constituted which
crimes.2 Had defendant renewed that objection at trial, the
    2
      Indeed, that defendant did not re-raise this issue at trial suggests that his
decision not to raise the issue was a strategic decision. See Rodriguez-Castillo,

 (relying on fact that counsel may have made a strategic
Nonprecedential Memo Op: 

 (2024)                               515

court could have easily avoided any potential error. See 

(declining to exercise discretion where error could have been
easily avoided).
         Moreover, it is unlikely that any error affected the
proceedings below. The state charged defendant with two
counts of rape and two counts of sodomy, the victim testified as to two distinct incidents of each crime, and the state
expressly relied on those four incidents—and only those four
incidents—in its closing arguments, all of which reduces the
potential for jury confusion. Defendant’s primary theory of
why a concurrence instruction was necessary is that the
jury could have convicted defendant based on videos of the
defendant and the victim having what defendant describes
as “one act of anal sex” and “one act of vaginal sex.” The
videos, which defendant himself introduced at trial, were
filmed in August 2017. The state addressed the videos in
closing and noted that the victim had not described the
incidents depicted in the videos as the instances in which
defendant had raped and sodomized her; the state expressly
asked the jury to consider “only those events” that the victim described in her testimony. Not only that, but the victim testified that the assaults occurred much later than
August 2017 (the date of the videos), towards the middle to
end of their two-year relationship, which ended in 2019. To
the extent that defendant believes that those videos created
a concurrence issue, we are unpersuaded that they would
have impacted the outcome and are unwilling to exercise
our discretion to remedy a theoretical problem that defendant himself created by offering the videos into evidence.
         OEC 403: Pretrial, defendant challenged admission
of evidence that defendant stole drugs from a hospital (that
he then used to drug the victim), arguing that that evidence
was inadmissible under OEC 404(3) and unfairly prejudicial
under OEC 403. Defendant had access to the drugs by way of
his job as a paramedic, and defendant argued that evidence
that he stole drugs from a hospital was unfairly prejudicial
because he was a paramedic, a “position of trust[.]” The trial
court admitted the evidence under OEC 404(3) as relevant

decision not to object as a consideration in refusing to reach an unpreserved juryconcurrence claim).
516                                              State v. Blake

to defendant’s plan, preparation, motive, and opportunity,
and concluded that the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice under OEC 403. On appeal, defendant challenges only
the OEC 403 ruling.
          We review the trial court’s ruling under OEC 403
for abuse of discretion, State v. Brown, 

,

, rev den, 

 (2015), and conclude that
the court did not abuse its discretion. OEC 403 allows relevant evidence to be excluded only where “its probative value
is substantially outweighed” by, as relevant to defendant’s
claim on appeal, the risk of unfair prejudice. Evidence carries a risk of unfair prejudice if it “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. Shaw, 

, 

 (2005) (quoting
State v. Barone, 

, 

 (1998), cert den,

 (2000)).
        We have reviewed the record and the trial court’s
ruling. Given the relevance of the evidence, we cannot conclude that the court abused its discretion in concluding that
the probative value of the evidence was not substantially
outweighed by its risk of unfair prejudice.
         Sentencing: Defendant raises three claims of error
with respect to his sentences, the first two of which are
related. In his fourth and fifth assignments of error, defendant argues that the trial court erred in imposing a 25-year
sentence on his first-degree sodomy conviction because that
sentence was only permissible if (1) the state alleged or provided notice to defendant that that crime arose out of a separate criminal episode from the first-degree rape offense, as
required by ORS 137.690 and (2) if the trial court instructed
the jury as to the definition of separate criminal episode.
Because neither of those things happened, defendant claims
his sentence is unlawful. He acknowledges that he did not
preserve either claim of error but asks that we review them
as plain error. We decline to do so.
        ORS 137.690 mandates a 25-year prison term for a
major felony sex crime where the defendant has a previous
Nonprecedential Memo Op: 

 (2024)             517

conviction for a major felony sex crime. And when the previous conviction is sentenced as part of the same proceeding,
that conviction must have occurred during a separate criminal episode. ORS 137.690(c). ORS 131.505, in turn, defines
separate criminal episode. Defendant argues, and the state
agrees, that defendant was entitled to have a jury determine
whether his major felony sex crime arose from a separate
criminal episode. State v. Thornsberry, 

,

 (2021) (so concluding). And because defendant
was entitled to have that fact be found by a jury rather than
a judge, the state was required to give defendant advance
notice—notice that defendant now claims he did not have—
that it intended to rely on that fact to increase his sentence,
ORS 136.765. State v. Frinell, 

, 

 (2018).
         Yet any error in not providing defendant notice
does not appear on the face of the record. Ailes v. Portland
Meadows, Inc., 

, 

 (1991) (“[T]he
reviewing court must not need to go outside the record to
identify the error or choose between competing inferences,
and the facts constituting the error must be irrefutable.”).
Notably, ORS 136.765(2) does not require the state to file
notice with the court; rather, the notice must be provided “to
the defendant.” See State v. Alexander, 

,

 (2013) (differentiating between providing notice
to the court and notice to the defendant and emphasizing
that ORS 136.765(2) requires the latter). Thus, the fact that
there is no notice in the trial court record does not mean
that the state failed to provide defendant with notice. Of
course, it is also possible that that did not occur. But in the
plain error context, we cannot conclude that any error under
ORS 136.765(2) is apparent.
         As to defendant’s fifth assignment of error, in which
he contends that the trial court plainly erred in failing to
instruct the jury as to the definition of a separate criminal episode in ORS 131.505, any error was harmless. In a
similar context, we have deemed the lack of an instruction
on the definition to be harmless where the record is clear
that the offenses occurred in different incidents. See State v.
Cuevas, 

, 

 (2014), aff’d on
518                                            State v. Blake

other grounds, 

, 

 (2015). As described
above, the victim testified to separate incidents on separate
days, descriptions that the state emphasized, in its closing
arguments, as having occurred on four separate days. And,
as we did above, we disagree that the videos that defendant
offered into evidence alters that conclusion.
         In his sixth assignment of error, defendant contends that the 25-year sentence that the trial court imposed
is constitutionally disproportionate under both the state
and federal constitutions. Below, defendant preserved his
state-constitutional claim but raised no argument under
the federal constitution and, on appeal, does little to develop
his federal constitutional argument beyond what he argues
under the Oregon Constitution. We therefore confine our
analysis to the Oregon Constitution.
         Whether a sentence is disproportionate involves consideration of three factors: “(1) a comparison of the severity
of the penalty and the gravity of the crime; (2) a comparison
of the penalties imposed for other, related crimes; and (3) the
criminal history of the defendant.” State v. Rodriquez/Buck,

, 

 (2009). The trial court considered
each of those factors and concluded that the two offenses
for which the jury found defendant guilty were “two of the
most serious” and that in committing those crimes, defendant used his position of authority, used his access to drugs,
and used the victim’s vulnerability to “get the thing that he
wanted.” The court acknowledged that the 25-year sentence
is “amongst the … longest sentences” allowed but that the
presumptive sentence for each crime, were ORS 137.690 not
to apply, was 100 months. The court noted that defendant
had no criminal history and that, in considering the three
factors, the 25-year sentence would not violate the Oregon
Constitution.
         Having reviewed the factors and the trial court’s
application of those factors, we agree with the trial court
that the sentence is not disproportionate. Defendant points
to defendant’s lack of criminal history and the two-year
consensual relationship between the parties. As the state
observes, whether defendant and the victim had a consensual relationship is immaterial, given that a jury found that
Nonprecedential Memo Op: 

 (2024)         519

defendant raped and sodomized the victim while she was
incapacitated and therefore unable to consent. Moreover, “a
lack of prior convictions alone has never been found to be
enough to render an otherwise constitutional penalty disproportionate.” State v. Lara-Vasquez, 

,

, rev den, 

 (2021).
        Affirmed.