State v. Quebrado , 323 Or. App. 308 ( 2022 )

308
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted August 17, affirmed December 14, 2022, petition for
review allowed May 18, 2023 (371 Or 106)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARLOS ALBERTO QUEBRADO,
Defendant-Appellant.
Washington County Circuit Court
19CR34736; A174385
Ricardo J. Menchaca, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Nonprecedential Memo Op: 323 Or App 308 (2022) 309
HELLMAN, J.
Defendant appeals from a judgment of conviction,
after a jury trial, for second-degree assault, ORS 163.175,
unlawful use of a weapon, ORS 166.220, and fleeing or
attempting to elude a police officer, ORS 811.540(1)(b)(A).
Defendant asserts eight assignments of error. For the fol-
lowing reasons, we affirm.
Simultaneous video. In his first assignment of error,
defendant asserts that the trial court violated his right to a
public trial because the jury could not see the spectators via
simultaneous video. We reject defendant’s argument. When
defendant raised the issue to the trial court, he explicitly
stated that he was only commenting about the situation, not
asking the court to take any action. Accordingly, defendant
made no objection in the trial court and the argument is
unpreserved. See State v. Wyatt, 331 Or 335, 343, 15 P3d
22 (2000) (“[A] party must provide the trial court with an
explanation of his or her objection that is specific enough
to ensure that the court can identify its alleged error with
enough clarity to permit it to consider and correct the error
immediately, if correction is warranted.”).
Masks. Defendant’s second assignment of error
asserts that the trial court violated his right to confront
witnesses when it did not require two witnesses to remove
their masks while they testified. Because defendant failed
to make a timely objection when the witnesses testified, we
reject his argument as unpreserved.
Co-conspirator statement. In his third assignment
of error, defendant argues that the trial court erred when
it allowed E, D, and a detective to testify that following an
altercation with E in a bar, defendant’s girlfriend said “Not
here” to defendant as he rummaged through his car. The
trial court overruled defendant’s hearsay objection to E’s
testimony and admitted the statement as a co-conspirator
statement.
Whether evidence is hearsay is a question of law.
State v. Kaino-Smith, 277 Or App 516, 523, 371 P3d 1256
(2016). A statement made by a co-conspirator of a party during
the course and in furtherance of the conspiracy is not
310 State v. Quebrado
hearsay. OEC 801(4)(b)(E). Thus, to admit a co-conspirator
statement, a trial court must find by a preponderance
of the evidence that: (1) there was a conspiracy and the
accused and declarant were members of that conspiracy;
(2) the statement was made “during the course” of the con-
spiracy; and (3) the statement was made “in furtherance of
the conspiracy.” State v. Cornell, 314 Or 673, 677, 842 P2d
394 (1992). A criminal conspiracy exists when, “with the
intent that conduct constituting a crime punishable as a
felony or a Class A misdemeanor be performed, [a] person
agrees with one or more persons to engage in or cause the
performance of such conduct.” ORS 161.450(1).
On review, we determine whether there was suf-
ficient evidence to support the trial court’s finding that
defendant’s girlfriend’s statement was admissible under
OEC 801(4)(b)(E). See Cornell, 314 Or at 678. “In making
this determination, ‘[w]e view the record consistent with the
trial court’s ruling * * *, accepting reasonable inferences and
reasonable credibility choices that the trial judge could have
made.’ ” Id. (quoting State v. Carlson, 311 Or 201, 214, 808
P2d 1002 (1991)).
Viewing the record consistently with the trial court’s
ruling, we conclude the evidence was sufficient for the trial
court to determine that: (1) defendant and his girlfriend
were members of a conspiracy to assault E and D; (2) the
conspiracy existed when defendant rummaged through his
car; and (3) his girlfriend’s statement encouraged defendant
to further the conspiracy by taking future action. Therefore,
the trial court did not err in admitting the evidence.
Motions for mistrial and to strike. Defendant’s fourth
and fifth assignments of error assert that the trial court
erred when it denied his motion for mistrial and motion to
strike. Considering the totality of the circumstances, we
conclude that defendant’s motions were untimely. See State
v. Sprow, 298 Or App 44, 49, 445 P3d 351 (2019). Accordingly,
we reject defendant’s arguments because they were not
preserved.
Prior inconsistent statements. Defendant’s sixth
assignment of error contends the trial court erred when
it denied defendant’s motion to admit certain statements
Nonprecedential Memo Op: 323 Or App 308 (2022) 311
that his girlfriend made during jail calls and to a detective.
Relying on OEC 806, defendant sought to impeach his girl-
friend’s “I’m going to kill you” and “Not here” statements
with her assertions that she was the only person in the car
who used a gun, acted in self-defense, and intended to scare
E and D rather than kill them.
We review a trial court’s evidentiary ruling for
errors of law. State v. Ramirez, 310 Or App 62, 63, 483 P3d
1232 (2021).
An “attack on the declarant’s credibility must be by
means of an inconsistent statement.” Pinnell v. Palmateer,
200 Or App 303, 313, 114 P3d 515 (2005) (emphasis in origi-
nal). An inconsistent statement must offer a “material vari-
ance” from witness testimony. Ramirez, 310 Or App at 66.
Because the statements defendant sought to introduce do
not materially differ from the statements that his girlfriend
would kill E or that she and defendant should act later, the
trial court did not err. See id.Jury instruction. In his seventh assignment of error,
defendant challenges the trial court’s refusal to answer a
jury question.
We review a trial court’s refusal to give a requested
jury instruction for errors of law. State v. McNally, 361
Or 314, 320, 392 P3d 721 (2017). We have explained that
“ ‘a trial court does not err in refusing to give a proposed
instruction—even if legally correct—if the substance of
the requested instruction is covered fully by other jury
instructions given by the trial court * * *.’ ” State v. Roberts,
293 Or App 340, 334, 427 P3d 1130 (2018) (quoting State v.
Harryman, 277 Or App 346, 356-57, 371 P3d 1213, rev den,
360 Or 401 (2016)). Consequently, a court is not required
to provide negative instructions that describe the circum-
stances when “an element might not be established.” Id. at
346.
Here, the jury asked, “does not stopping a crime
from occurring count as aiding and abetting?” Although
defendant asked the trial court to respond, “No,” the
court referred the jury to the jury instructions. Because
312 State v. Quebrado
defendant’s request constitutes a negative instruction, the
trial court did not err by refusing to provide it. See id.
Extradition costs. Defendant concedes that his
eighth assignment of error is unpreserved but asks us to find
that it is plain error and to exercise our discretion to correct
the error. Plain-error review is a two-step process. We must
first determine that the error is plain, which means that it
is “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,
354 Or 614, 629, 317 P3d 889 (2013). If those three elements
are met, we then must determine whether to exercise our
discretion to correct the error. Ailes v. Portland Meadows,
Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991).
We begin and end with the first step. Under ORS
161.665(4), a trial court cannot sentence a defendant to pay
costs unless the court finds that “defendant is or may be able
to pay them.” However, when a court imposes some finan-
cial obligations but not others, the record “supports an infer-
ence that the trial court selected which financial obligations
to impose in light of defendant’s circumstances.” State v.
Brooks, 285 Or App 54, 59, 396 P3d 302 (2017).
Here, defendant stipulated to pay restitution and
the trial court waived attorney fees because it found that
defendant did not have the ability to pay them. The court
also waived conviction fees but explicitly imposed extra-
dition costs. Because we may infer that the court ordered
extradition costs based on defendant’s ability to pay them,
there is no obvious error of law as required for plain-error
review.
Affirmed.