State v. Easterday

104                   April 23, 2025             No. 364

   This is a nonprecedential memorandum opinion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.
              MARTIN ROBERT EASTERDAY,
                   Defendant-Appellant.
                Grant County Circuit Court
                   22CR59273; A181798

  Robert S. Raschio, Judge.
  Submitted February 25, 2025.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emma McDermott, Deputy Public Defender,
Oregon Public Defense Commission, filed the opening brief
for appellant. On the reply brief were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Emma
Izaguirre, Deputy Public Defender.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the briefs for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)            105

        KAMINS, J.
         Defendant appeals a judgment of conviction for
second-degree criminal mischief, ORS 164.354, following a
domestic dispute in which he damaged the kitchen sink faucet at his grandfather’s house while intoxicated. He argues
that the trial court plainly erred by admitting testimony
from the arresting officer that defendant requested an attorney, and relying on that evidence for an improper purpose.
For the reasons explained below, we conclude that the trial
court did not plainly err, and therefore affirm.
         Plain error review involves a two-step inquiry in
which we first determine whether the error is plain, and
second, whether to exercise our discretion to consider and
correct the error. ORAP 5.45; Ailes v. Portland Meadows,
Inc., 

, 

 (1991). “For an error
to be plain error, it must be an error of law, obvious and not
reasonably in dispute, and apparent on the record without
requiring the court to choose among competing inferences.”
State v. Vanornum, 

, 

 (2013).
         Defendant argues that the trial court plainly erred
in admitting the evidence that he invoked his right to counsel because it was irrelevant and risked the factfinder drawing an improper inference of guilt. We disagree that it was
“obvious and not reasonably in dispute” that the evidence
could not be admitted. 

 Defendant’s intoxication and its
potential effect on his mental state was a central issue in
defendant’s trial. The prosecutor elicited the testimony in
the context of establishing that defendant was lucid, and
thus, capable of having the requisite intent for criminal mischief. See ORS 164.345(1) (“A person commits the crime of
criminal mischief … if, with the intent to cause substantial inconvenience to the owner or to another person …
the person tampers or interferes with property of another.”).
The defense attorney cross-examined the witness regarding
the same. Because the evidence was relevant for a permissible purpose, it was not obvious that sua sponte intervention was required. See OEC 401 (“ ‘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
106                                          State v. Easterday

evidence.”); State v. Turnidge (S059156), 

,

, cert den, 

 (2016) (“The threshold
for admissibility under [the OEC 401] relevancy standard is
very low—as long as the evidence, based on logic and experience, can support a reasonable inference that is material
to the case, then the evidence is sufficiently relevant to be
admissible, even if that is not the only inference that the evidence would support.” (Internal quotation marks omitted.));
State v. Smallwood, 

, 

, cert
den, 

 (1977) (concluding that evidence that the
defendant exercised his right to remain silent and have his
attorney present during a psychiatric evaluation was relevant and admissible for the purpose of showing the depth
and circumstances of the examination).
         It is also not obvious that the trial court relied on that
evidence for an impermissible purpose. Defendant asserts
that the trial court relied on defendant’s request for counsel to
infer defendant’s consciousness of guilt, based on the following
statement by the trial court: “[Defendant’s] acts were intentional based upon his interactions with [the arresting officer]
and understanding the gravity of the situation, requesting
counsel, it shows he was aware of and was thinking about
his circumstances and understood that there were potential
issues with his conduct.” However, when read within the context of the parties’ arguments at trial, it is not “apparent on
the record without … choosing among competing inferences”
that the trial court relied on defendant’s request for counsel to draw an impermissible inference. Vanornum, 

. Rather, as discussed above, the trial court may have
been relying on the evidence to conclude that defendant was
lucid—a conclusion that is not obviously impermissible under
plain error review. See State v. Spieler, 

,

 (2020) (explaining that in reviewing a court’s
speaking verdict, “we do not look at individual statements in
isolation, but rather consider them in the context of the parties’ arguments and the ruling as a whole”); State v. Veatch,

, 

 (2008) (explaining that
context is determinative when assessing whether a reference
to invocation led to an impermissible inference).
         Affirmed.