State v. Pose

468                   June 26, 2024               No. 432

   This is a nonprecedential memorandum opinion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.
        JOSHUA JOSEPH MacDONALD POSE,
          aka Joshua Joseph MacDonald Pose,
            aka Joshua Joseph MacDonald,
  aka Joshua Joseph MacDonald-Pose, aka Joshua Pose,
                aka Joshua Joseph Pose,
          aka Joshua Joseph Pose-MacDonald,
                 Defendant-Appellant.
             Jackson County Circuit Court
   17CR13877, 17CR37996; A178119 (Control), A178120

  Timothy Barnack, Judge. (Judgment)
  Laura A. Cromwell, Judge. (Supplemental Judgment)
  Submitted May 31, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant
Attorney General, filed the brief for respondent.
  Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
  LAGESEN, C. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             469

        LAGESEN, C. J.
         Defendant appeals a judgment of conviction for,
among other things, driving under the influence of intoxicants (DUII), reckless driving, first-degree manslaughter,
fleeing or attempting to elude, and tampering with a witness.
The charges arose from two separate DUII incidents, one in
which defendant eluded an officer and another that led to
a crash and the death of another person (the manslaughter
case), and defendant’s attempt to eliminate witnesses to the
crash as evidenced by a phone call he made from jail (tampering case). The trial court consolidated the manslaughter
and the tampering cases. On appeal, defendant raises three
assignments of error: (1) the trial court erred in granting
the motion to consolidate the two cases; (2) the trial court
erred in admitting evidence of defendant’s two prior DUII
convictions without conducting an OEC 403 balancing test;
and (3) the trial court erred in denying defendant’s motion
for judgment of acquittal on the charge of first-degree manslaughter. We affirm.
         Consolidation. First, he argues that the state’s
motion to consolidate was untimely because it was made
five days before the first trial and the court granted consolidation the day before trial was set to begin in the manslaughter case. Second, defendant argues that consolidation
was improper under ORS 132.560(1)(b)(C) and (3) because
the two cases were not connected and because consolidation
prejudiced him, e.g., consolidation was not authorized by the
statute. Our review is for legal error. State v. Wittwer, 

, 

 (2007); State v. Delaney, 

, 

 (2022).
         Although the legislature has not supplied a timeline for seeking consolidation, the Supreme Court has held
that a motion to consolidate filed the day of trial is untimely.
State v. Shields, 

, 

 (1977). Under
Shields, to be timely, a motion to consolidate “must be
filed at such time as will allow the defendant to make an
informed and calculated response.” 

 (internal quotation marks omitted). Here, we do not decide whether the
motion to consolidate filed five days before trial and allowed
the day before trial, was timely under Shields because, given
470                                              State v. Pose

the procedural history of the case, any error in timing was
harmless. The two cases had been set for trial on back-toback days, requiring defendant to be prepared to go to trial
on both cases at the same time. Beyond that, the evidence in
the cases was cross-admissible, so the timing of the motion
did not alter the evidence that defendant had to be prepared
to address. For that reason, defendant was not prejudiced by
the timing of the motion.
        Defendant also argues that consolidation was
improper under ORS 132.560(1)(b)(C) and (2) because, in
defendant’s view, the cases were not sufficiently connected
and, in his view, consolidation prejudiced him. But, under
our case law, the manslaughter case was sufficiently connected to the tampering case to be consolidated with it;
the charges were logically related and involved overlapping
proof. State v. Dewhitt, 

, 

, rev den, 

 (2019).
          As for prejudice, given the relationship between the
cases and the cross-admissibility of evidence, defendant has
not demonstrated that the consolidation prejudiced him.
See State v. Smith, 

, 

(2021) (discussing required showing that must be made for
prejudice). Although defendant contends that the admission
of the jail call evidence showing his efforts at witness tampering was prejudicial, defendant does not dispute that the
jail call demonstrating witness tampering was admissible
in the manslaughter case to demonstrate defendant’s consciousness of guilt. Under those circumstances, defendant
has not demonstrated prejudice from the consolidation: “The
mere assertion that evidence relating to some charges will
influence the jury’s consideration of other charges is insufficient” to demonstrate prejudice. State v. Tidwell, 

, 

 (2013), rev den, 

 (2014)
(quotation marks omitted).
         Prior DUII Convictions. In his second assignment
of error, defendant contends that the trial court erred in
admitting evidence of his two prior DUII convictions without
conducting an OEC 403 balancing test. Defendant acknowledges that he “did not expressly mention OEC 403 or balancing under that provision.” Still, he argues that “the trial
Nonprecedential Memo Op: 

 (2024)                              471

court erroneously concluded that OEC 403 did not apply to
evidence of defendant’s prior DUII convictions.” The state
responds that defendant’s argument is unpreserved.
         Having reviewed the record, we agree with the state.
Simply put, as defendant acknowledges, he never argued to
the trial court that OEC 403 precluded the admission of
evidence of defendant’s two prior conviction; before the trial
court, defendant argued that evidence of the details of the
convictions should not come in, an argument that the trial
court accepted.1 Defendant does not argue that the trial
court plainly erred, and, in all events, the record does not
reflect any plain error. We therefore reject defendant’s second assignment of error.
         Motion for judgment of acquittal on manslaughter.
Defendant’s final argument is that he is entitled to a judgment of acquittal on the ground that the state’s evidence
was insufficient to prove that he acted under circumstances
manifesting extreme indifference to the value of human
life. The Supreme Court has explained that the phrase “circumstances manifesting extreme indifference to the value
of human life” describes a heightened degree of recklessness, “one that is characterized by a willingness to commit an extremely dangerous act and an indifference as to
whether that act could cause the death of another human
being.” State v. Downing, 

, 

(2016) (quoting State v. Boone, 

, 

(1983) (internal quotation marks omitted)). Having reviewed
the record, we conclude that the evidence would permit a
rational factfinder to find that defendant acted under such
circumstances and that the trial court did not err in denying defendant’s motion for judgment of acquittal.
           Affirmed.




    1
      Although the underlying details of the prior DUII convictions later came
out during trial, that is because defendant’s testimony opened the door to the
admission of those details. Defendant does not challenge the trial court’s conclusion that he opened the door to the admission of the details.