State v. Carlan

606                  August 13, 2025               No. 731

   This is a nonprecedential memorandum opinion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.
             ANTHONY STEVEN CARLAN,
                 Defendant-Appellant.
               Lane County Circuit Court
                 23CR15520; A181846

  Charles M. Zennache, Judge.
  Submitted April 21, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.
  HELLMAN, J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)                              607

           HELLMAN, J.
         Defendant appeals a judgment of conviction for
numerous offenses, including fourth-degree assault constituting domestic violence, ORS 163.160(2). In two assignments of error, he argues that the trial court erred when
it excluded testimony about drug paraphernalia in the victim’s home and that the court plainly erred when it imposed
a special probation condition in the general judgment that
it had not announced in open court. Although we conclude
that the trial court did not err in excluding the testimony,
we accept the state’s concession that the court plainly erred
by imposing the special probation condition. Accordingly, we
remand for resentencing and otherwise affirm.
        OEC 403. In his first assignment of error, defendant
argues that the trial court erred when it excluded testimony
about “signs of drug use” in the victim’s home under OEC
403.1
          As relevant here, the state charged defendant with
four offenses against the victim and specifically alleged that
defendant “did unlawfully and recklessly cause physical
injury to [her].” Before trial, the state filed a motion in limine
to exclude “any reference to [the victim’s] previous drug use
… as inadmissible prior bad acts.” The state argued that
“[c]haracter evidence is not an issue as either an element of
the crime or an element of the defense.” The trial court took
the matter under advisement.
         At trial, the victim testified that, after she asked
defendant to remove his items from her home, he kicked in
her front door and put her in a headlock, making it “hard to
breathe.” The victim further testified that her children did
not live with her “at the time. They stay on the weekends,
but because of [defendant] and other stuff, … we chose that
it wasn’t a safe place for them.” During defendant’s case-inchief, the following exchange occurred:

   1
       OEC 403 provides:
       “Although relevant, evidence may be excluded if its probative value is
   substantially outweighed by the danger of unfair prejudice, confusion of the
   issues, or misleading the jury, or by considerations of undue delay or needless
   presentation of cumulative evidence.”
608                                             State v. Carlan

      “[DEFENSE COUNSEL]: Okay. I think there was
   some testimony about you and your friends being part of
   the reason that her children—or her child ended up staying
   somewhere else. Is that how you recall things?
      “[DEFENDANT]: Absolutely not, no.
      “…
      “[DEFENSE COUNSEL]: So did they ever end up
   going to live somewhere else?
      “[DEFENDANT]: They did.
      “…
     “[DEFENSE COUNSEL]: Well, do you think that that
   was a good idea, that they went to stay somewhere else?
      “[DEFENDANT]: I couldn’t even believe that she’d
   have children living in there at all.
      “[DEFENSE COUNSEL]: Okay. In your time visiting
   that house, did you see any evidence of drug use?
      “[DEFENDANT]: All over the place.
      “[THE STATE]:     Objection, your honor. Relevance.”
Outside the jury’s presence, defendant argued that his testimony tended to explain the victim’s injuries:
      “The state asked in direct examination whether or
   not the injuries looked consistent with drug use, intimating that it was not drug use related as far as the injuries
   were concerned. We were intending to put on evidence that
   [defendant] did observe what he believed to be drug use
   by [the victim]. That he—that that could be one possible
   explanation for a range of things.”
After an exchange with the trial court, defendant stated
that he would “withdraw the question.”
         After a recess, defendant offered a different theory
of relevance, arguing that “part of the reason for offering
the question of if there was paraphernalia in the house was
a question of why the children might have gone to live somewhere else.” The trial court considered the parties’ arguments and excluded the testimony under OEC 403. After
the jury and the trial court found defendant guilty of several
offenses, this appeal followed.
Nonprecedential Memo Op: 

 (2025)                  609

        We review “[a] trial court’s exclusion of evidence
under OEC 403 … for abuse of discretion.” State v. Naudain,

, 

 (2021).
        In excluding the evidence, the trial court applied
the OEC 403 balancing test provided in State v. Mayfield,

, 

 (1987).
   “First, the trial judge should assess the … probative value
   of the evidence and consider the weight or strength of the
   evidence. In the second step the trial judge must determine
   how prejudicial the evidence is, to what extent the evidence
   may distract the jury from the central question whether the
   defendant committed the charged crime. The third step is
   the judicial process of balancing the prosecution’s need for
   the evidence against the countervailing prejudicial danger
   of unfair prejudice, and the fourth step is for the judge to
   make his or her ruling to admit all the proponent’s evidence, to exclude all the proponent’s evidence or to admit
   only part of the evidence.”

.
        To begin, the trial court determined that the testimony’s probative value was low because it “sound[ed] like”
“impeachment on a collateral matter,” reasoning:
   “How is that relevant? I mean, I, frankly, didn’t even
   remember her saying that, but let’s assume she did. How
   does that matter? I mean, he’s not charged with driving
   the children off or doing anything to the children. It’s got
   nothing to do with anything.
      “…
      “[T]here’s a couple of domestic violence charges, and
   interfering with a phone call, and destroying property.
   That’s what he’s charged with.”
The trial court then determined that “the prejudicial value
and the chance of confusion is too high” and “outweigh[ed]
any probative value.” Finally, the trial court excluded the
testimony.
         We conclude that the trial court did not abuse its
discretion. Although defendant argued that his testimony
would “rebut[ ]” the victim’s testimony that her children left
her home because of defendant, the record supports the trial
610                                            State v. Carlan

court’s determination that the testimony was not probative
of whether defendant committed the any of the charged
offenses against the victim. We therefore reject defendant’s
argument that he had “significant need” for the testimony to
“undermine[ ] the state’s suggestion that defendant was so
dangerous that his mere presence in the apartment forced
[the victim’s] children to relocate.”
         Further, “[t]he potential for confusion of the jury
… was considerable.” State v. Rubio/Galligan, 

, 

, rev den, 

 (2012). The testimony could have confused the jury by “detract[ing] from
the factfinder’s ability to neutrally and thoroughly assess
the evidence” concerning defendant’s conduct and would create unfair prejudice by “caus[ing] the jury to develop antipathy toward the victim for reasons unrelated to the issues.”
Naudain, 

 (emphasis added; internal quotation
marks omitted).
         Thus, the record establishes that the testimony’s
probative value was low and it posed a significant risk of
“distract[ing] the jury from the central question whether the
defendant committed the charged crime.” Mayfield, 

. “In these circumstances, the trial court did not abuse
its discretion in excluding the proffered evidence under OEC
403 on the ground that its probative value was substantially
outweighed by the risk of unfair prejudice and confusion of
the issues before the jury.”
Rubio/Galligan, 

.
         Sentencing. In his second assignment of error, defendant argues that the trial court erred when it imposed a
special probation condition in the general judgment because
it had not announced in open court and because the condition was unsupported by the record. The state concedes that
the trial court erred because the court did not “orally impose
that condition in open court in defendant’s presence.” We
agree and accept the state’s concession.
          “A criminal defendant has the right to have his, her,
or their sentence announced in open court, and a trial court
errs if it does not do so.” State v. Salah, 

,

 (2024), rev allowed, 

 (2025). Here,
Nonprecedential Memo Op: 

 (2025)            611

the general judgment ordered defendant not to “purchase,
use, or possess controlled substances, except as in accordance with a valid prescription.” Because the trial court did
not announce the probation condition in open court, it erred
by imposing the condition in the general judgment. See 

(so concluding).
         Further, “[w]e decline to address defendant’s remaining arguments as to [the probation condition] because any
such arguments can be presented to the trial court in the
first instance on remand.” Id.; see also State v. Keen, 

, 

 (2020) (“On remand, the parties may raise, and the court may address, whether and how
the condition is one that is reasonably related to defendant’s
offenses of conviction.”).
        Remanded for resentencing; otherwise affirmed.