326 October 2, 2024 No. 697
This is a nonprecedential memorandum opinion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.
CURTIS HUFF, JR.,
aka Curtis Lee Huff, aka Curtis Lee Huff Jr.,
Defendant-Appellant.
Multnomah County Circuit Court
22CR24799; A180100
Chanpone P. Sinlapasai, Judge.
Argued and submitted September 5, 2024.
David O. Ferry, 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.
Rolf C. Moan, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Affirmed.
Nonprecedential Memo Op: 335 Or App 326 (2024) 327
AOYAGI, P. J.
Defendant was convicted of second-degree assault,
ORS 163.175; failure to perform the duties of a driver, ORS
811.705; and reckless driving, ORS 811.140. In his sole
assignment of error on appeal, he challenges an evidentiary
ruling of the trial court. As explained below, we conclude
that any error was harmless and, accordingly, affirm. See
State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003) (we must
affirm despite evidentiary error if there is “little likelihood
that the error affected the jury’s verdict”).
Defendant was charged with various offenses based
on an incident at a public park in which he hit a pedestrian
with his car. Before trial, the trial court ruled on OEC 403
grounds that it would exclude from evidence certain statements that defendant made to a detective that implied that
defendant was a drug dealer. However, after defendant testified at trial that he was not a drug dealer, the court agreed
with the state that defendant had “opened the door” and
allowed the following cross-examination:
“Q. Now, you stated on direct with [defense counsel]
that you do not buy or sell drugs. Is that right?
“A. I don’t.
“Q. Okay. However, in that interview you stated
to Detective Brown that there’s a drug war going on in
Dawson Park and if you’re not selling you’re smoking. Isn’t
that right?
“A. Yes. I said that. Yes.
“Q. You did say that. Correct?
“A. Yes.
“Q. And you also stated on direct that you have been
clean for—
“A. 15 years.
“Q. —something like 15 years?
“A. Yes.
“Q. So you are not smoking crack. Is that what you’re
saying?
328 State v. Huff
“A. I’m not smoking crack.
“Q. Okay. But you’re out there at Dawson Park and
you’re saying that it was a—
“A. Drug war.
“Q. —a living out there, a drug war.
“A. Yeah.
“Q. People are making a living by selling drugs out
there?
“A. I had to feed my family. That’s what I said.
“Q. And that you had to feed your family. That’s …
what you said, right?
“A. Yes.”
Defendant argues that it was error to allow the
foregoing testimony because his statements to the detective (1) were too ambiguous to properly impeach his direct
testimony, (2) related only to a collateral matter, and
(3) remained inadmissible under OEC 403 despite defendant’s denial of drug dealing. We conclude that, even if the
trial court erred—an issue that we need not resolve—the
error was harmless.
First, defendant’s only argument as to harm is that
the testimony at issue allowed the jury to draw the highly
inflammatory inference (or, as he sees it on appeal, speculate) that defendant was a drug dealer. But Detective Brown
testified without objection that, based on his conversation
with defendant, he understood that defendant had been
robbed in the park “[w]hile he was selling narcotics.”1 There
was also evidence that defendant initially told a police officer that the victim was his friend but then offered to tell the
officer the “real story,” which was that the victim was a “customer,” not a friend. In light of the other evidence indicating
1
When asked at oral argument about the officer’s testimony, defendant
argued that a witness’s testimony is qualitatively different from a defendant’s
own words. That is certainly true in general terms, but in this case the officer
was relaying what he understood from talking to defendant. As such, the officer’s
testimony was also based on defendant’s own words (even if not directly quoting
them), making the distinction less significant. Further, defendant’s testimony
on cross-examination was at least somewhat ambiguous, whereas the officer’s
testimony was unequivocal.
Nonprecedential Memo Op: 335 Or App 326 (2024) 329
that defendant was selling drugs, any error in admitting the
testimony at issue was harmless.
Second, the verdict demonstrates that the jury
found in defendant’s favor on the only issue that was actually disputed at trial—whether defendant intentionally or
knowingly caused serious physical injury to the victim, as
required for him to be found guilty of first-degree assault or
either of the two lesser-included-offense theories of second-degree assault. The jury acquitted defendant on the first-degree assault charge and its lesser-included offenses, which
required an intentional or knowing mental state, and found
him guilty on a different theory of second-degree assault that
required only a reckless mental state, plus reckless driving
and failure to perform the duties of a driver. Defendant’s
own testimony provided sufficient evidence to convict him
of those crimes; in essence, he testified that, while intoxicated, he intentionally drove his car into what he described
as a “packed” park, in an effort to collide with a tree, then
fled the scene. And in closing argument defendant made
no argument against recklessness, contesting only that he
intentionally or knowingly hit a pedestrian. For that reason
as well, there is little likelihood that the alleged evidentiary
error affected the verdict.
Affirmed.
