State v. Leach ( 2022 )

297
This is a nonprecedential memorandum opinion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 December 22, 2021, affirmed December 14, 2022,
petition for review denied March 30, 2023 (370 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
LARRY DEAN LEACH,
Defendant-Appellant.
Clatsop County Circuit Court
18CR22897; A172988
Paula Brownhill, Senior Judge.
Neil F. Byl, 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.
Timothy A. Sylwester, 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 Shorr, Judge, and
Powers, Judge.
POWERS, J.
Affirmed.
298 State v. Leach
POWERS, J.
In this criminal appeal, defendant challenges his
convictions for four counts of rape in the first degree, ORS
163.375, and two counts of using a child in a display of sex-
ually explicit conduct, ORS 163.670. Defendant’s first trial
ended in a mistrial for reasons not at issue in this appeal.
A second trial was held just over three months later, and
the jury unanimously convicted defendant for his conduct
against a single victim at that trial.1 On appeal from that
trial, defendant raises four assignments of error. In his first
three assignments of error, defendant argues that the trial
court erred in allowing the state to introduce testimony
from the victim’s mother and two former teachers that, in
their opinion, the victim was a truthful person. For the rea-
sons that follow, we conclude that those assignments of error
were not preserved because defendant’s objection was not
made with sufficient particularity to allow the trial court to
rule on the argument and correct any error, and we decline
to conduct plain-error review. We further summarily reject
defendant’s fourth assignment of error that challenges the
trial court’s nonunanimous jury instruction, because the
instructional error was harmless. See, e.g., State v. Ciraulo,
367 Or 350, 354, 478 P3d 502 (2020), cert den, 594 US ___,
141 S Ct 2836, 210 L Ed 2d 950 (2021) (concluding that an
erroneous nonunanimous jury instruction was “harmless
beyond a reasonable doubt” when the verdicts were unani-
mous). Accordingly, we affirm.
To preserve an error for appeal, a party must
demonstrate that the question or issue was presented to the
trial court with sufficient particularity to allow the court to
rule on the question or issue and correct any error immedi-
ately, if correction is warranted. State v. Wyatt, 331 Or 335,
343, 15 P3d 22 (2000). One of the underlying purposes of
the preservation requirement is to ensure that the opposing
party and the trial court were given enough information “to
be able to understand the contention and to fairly respond to
it.” State v. Walker, 350 Or 540, 552, 258 P3d 1228 (2011).
1
The jury also found defendant guilty of four counts of sexual abuse in the
first degree; however, those counts merged with the four counts of first-degree
rape.
Nonprecedential Memo Op: 323 Or App 297 (2022) 299
On appeal, defendant asserts that he preserved the
argument that the trial court erred in allowing the state
to elicit opinion evidence about the victim’s character for
truthfulness when the victim’s character had not yet been
attacked by opinion testimony, as OEC 608(1)(b) requires,
which constituted impermissible vouching evidence.2 The
objection that defendant asserts preserved that issue
occurred when the state questioned the victim’s mother:
“[Prosecutor]: Do you have an opinion as to whether
your—about the believability or credibility of your—excuse
me. Back up.
“Do you have an opinion about the truthfulness of your
daughter?
“[Defendant]: Objection, Your Honor. I don’t think [the
prosecutor] has, one, laid the proper foundation for opinion
testimony for this witness.
“THE COURT: Overruled.
“[Prosecutor]: Do you have an opinion?
“[Victim’s mother]: I do. I—
“[Prosecutor]: What’s your opinion?
“[Victim’s mother]: In my opinion, my daughter is
truthful.”
There was no other discussion about defendant’s objection,
and defendant did not reference, much less incorporate, any
of the discussion around this testimony from the first trial.
The prosecutor later asked two of the victim’s for-
mer teachers similar questions (i.e., “Do you have an opinion
as to whether she’s a truthful person?” and “Do you have
an opinion as to whether or not she is a truthful person?”).
Defendant did not object to the teachers’ testimony, but
2
OEC 608(1) provides:
“The credibility of a witness may be attacked or supported by evidence in
the form of opinion or reputation, but:
“(a) The evidence may refer only to character for truthfulness or untruth-
fulness; and
“(b) Evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.”
300 State v. Leach
posits that, given that the trial court overruled the objection
to the victim’s mother’s testimony, any such objection would
have been futile.
As the parties’ arguments on appeal suggest,
there are three bases that defendant’s objection could have
referred to when it was made before the trial court. First,
the objection could have been intended to call into question
whether the state laid a proper foundation to establish that
the witness was qualified to give an opinion about the vic-
tim’s character for truthfulness. See, e.g., State v. Paniagua,
268 Or App 284, 290, 341 P3d 906 (2014) (explaining that
the proponent must “lay an appropriate foundation,” which
requires the proponent “to establish the character witness’s
personal knowledge of the person’s reputation or character”
before a court will admit evidence of a person’s character for
truthfulness under OEC 608(1)). Second, the objection could
have been to the form of the question, viz., that the phras-
ing of the question would elicit an answer that constituted
improper vouching. See OEC 608(1)(a). Third, the objection
could have been levied on the basis that the victim’s char-
acter for truthfulness had not yet been attacked. See OEC
608(1)(b).
We understand defendant to argue on appeal
that, given the context provided by the first trial—during
which the parties and the court discussed the application
of OEC 608—and the fact that the witness was the victim’s
mother, the objection could only have referred to the basis
under OEC 608(1)(b): that the victim’s character for truth-
fulness had not yet been attacked. We conclude, however,
that defendant’s objection—that the state had not “laid the
proper foundation for opinion testimony for this witness”—
was not specific enough to clarify which of the three possible
bases the objection referenced. It may be possible to infer
which meaning defendant’s objection more likely intended
to capture with the benefit of argument from the parties
and reference to the first trial that took place more than
three months earlier. Preservation principles, however,
require that the objection 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.” Wyatt, 331 Or at 343. Here, the
Nonprecedential Memo Op: 323 Or App 297 (2022) 301
objection to the alleged error was not particular enough for
the trial court to consider and correct immediately. For that
reason, we conclude that defendant’s first three assignments
of error are unpreserved.
Further, we decline defendant’s invitation to review
under the plain error doctrine. To qualify for plain-error
review under ORAP 5.45, an error must be: (1) an error
of law; (2) obvious and not reasonably in dispute; and
(3) apparent on the record without requiring an appellate
court to choose among competing inferences. See, e.g., State
v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). If the
three-pronged plain-error test has been satisfied, we must
then decide whether to exercise our discretion to review the
error and explain our reasons for doing so. Id. at 630; see
also Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823
P2d 956 (1991). In this case, we need not decide whether
to exercise our discretion because the alleged error fails to
meet the second prong of the plain-error analysis: it is not
obvious, viz., as demonstrated by the parties’ arguments on
appeal, the alleged error is reasonably in dispute. See, e.g.,
State v. Gallegos, 302 Or App 145, 152, 460 P3d 529, rev dis-
missed, 366 Or 382 (2020) (explaining that the “competing
arguments offered by defendant and the state demonstrate
that defendant’s alleged error is reasonably in dispute,
which has the effect of precluding plain-error review”).
Affirmed.