State v. Gomez ( 2021 )

693
Argued and submitted March 19, affirmed April 14, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
OMAR GOMEZ,
Defendant-Appellant.
Clackamas County Circuit Court
18CR79692; A172493
485 P3d 314
Douglas V. Van Dyk, Judge.
Adam L. Dean argued the cause for appellant. Also on
the brief was Dean Law Group, P.C.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
694 State v. Gomez
PER CURIAM
Defendant appeals a judgment of conviction for four
sex offenses, raising three assignments of error. We affirm.
Defendant’s first two assignments of error chal-
lenge the trial court’s admission of a video recording of the
victim’s initial report to the police. The court admitted the
recording under OEC 803(26)’s domestic-violence hearsay
exception, and defendant contends on appeal that the court
erred in doing so. But, as the state points out, in the trial
court, defendant never contested that the recording was
admissible under OEC 803(26). Defendant’s only objection
was that it should not be admitted because it “is duplica-
tive, it’s cumulative.” Consequently, defendant’s contentions
regarding OEC 803(26) are not preserved for our review and
we reject them for that reason.1
In his third assignment of error, defendant contends
that the trial court erred in accepting his jury waiver. He
argues that his waiver was invalid and involuntary because
Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed
2d 583 (2020), had not been decided yet and, consequently,
proceeding with a jury trial under Oregon law meant that
he would be acceding to a violation of his incorporated Sixth
Amendment to the United States Constitution right to have
the jury reach a unanimous verdict to convict. But the record
is silent as to what role, if any, the presence or absence of
a unanimity requirement may have played in defendant’s
decision to waive jury and, consequently, is insufficient to
allow for meaningful review of defendant’s claim that his
waiver was essentially compelled by Oregon’s practice of
allowing juries to convict by nonunanimous verdicts. We
reject defendant’s third assignment of error for that reason.
Affirmed.
1
Defendant has not argued that the alleged errors qualify as plain errors.