State v. Cameron ( 2023 )

783
This is a nonprecedential memorandum opinion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 September 27, 2022, affirmed January 25, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
BENFORD LEE CAMERON,
Defendant-Appellant.
Umatilla County Circuit Court
19CR65445; A175053
Daniel J. Hill, Judge.
John Evans, 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.
Jennifer S. Lloyd, argued the cause for respondent. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
James, Judge pro tempore.
AOYAGI, P. J.
Affirmed.
784 State v. Cameron
AOYAGI, P. J.
After an incident with his former partner of more
than a decade, with whom he was still cohabitating for the
purpose of raising their child, defendant was charged with
strangulation constituting domestic violence, menacing con-
stituting domestic violence, and harassment. He waived
his right to a jury and was tried to the court. As relevant
to this appeal, defendant testified that he is not a violent
person and has never been a violent person. The prosecu-
tor inquired on cross-examination about specific instances
of violent conduct. During that line of questioning, defense
counsel objected to a question about prior convictions for
violent crimes, the court overruled the objection, and defen-
dant testified that he was convicted of unlawful use of a
weapon (UUW) and interfering with a police officer (IPO)
in 2004. On redirect, defendant sought to testify to the cir-
cumstances of the 2004 convictions, but the court did not
allow it. Defendant was ultimately convicted of the charged
crimes. On appeal, he argues that the trial court erred
both by allowing the inquiry about prior convictions and by
excluding his explanation of the circumstances of those con-
victions. For the following reasons, we affirm.
Defendant’s testimony that he is not a violent person
and has never been a violent person was admissible under
OEC 404(2)(a) as evidence of a pertinent character trait
offered by the accused. The state was then permitted under
OEC 405(1) to inquire on cross-examination as to “relevant
specific instances of conduct.” Here, the prosecutor asked
defendant a series of questions about past violent conduct,
specifically (1) a prior incident in which defendant punched a
door, (2) prior convictions for crimes of violence, and (3) prior
restraining orders obtained against defendant. As to (2), the
prosecutor asked defendant, “And you’ve been convicted of
crimes of violence before, correct?” Defense counsel objected,
“I object to the question. If [the state] wants to ask to offer a
specific conviction, he can. However, I would object because
it’s outside the 15 years, so—.” (Emphasis added.) The prose-
cutor responded, “[I]t may be outside the 15 years, but defen-
dant stated he is not a violent person and just testified that
he wasn’t previously.” The court overruled the objection, rea-
soning that defendant had opened the door. The prosecutor
Nonprecedential Memo Op: 323 Or App 783 (2023) 785
repeated the question, and defendant answered that he had
been convicted of UUW and IPO in 2004. The prosecutor
then moved on to prior restraining orders.
In his first assignment of error, defendant contends
that the trial court erred by allowing the state to inquire
about prior convictions. He acknowledges that the state was
trying to inquire into specific instances of conduct under
OEC 405(1), but he argues that it “did so incorrectly.” He
argues that, instead of inquiring into specific acts of past
violence, the state simply elicited evidence that defendant
had prior convictions for two crimes that are not inherently
violent. Defendant also argues that the convictions were
too old to be alternatively admissible under OEC 609(1)—a
point on which the state agrees and which is not in dispute.1
We understand the trial court to have relied solely
on OEC 405(1) in overruling defendant’s objection, so the
question before us is whether the court erred in that regard.
We agree with the state that our review is limited to plain
error, because defendant did not preserve the claim of error
that he raises on appeal. In the trial court, defense counsel
objected to the prosecutor’s question solely on the ground
that defendant’s convictions were more than 15 years old.
Defense counsel never argued—before or after defendant
testified to having 2004 convictions for UUW and IPO—
that UUW and IPO are not inherently violent crimes and
therefore not a proper subject of inquiry under OEC 405(1).
Accordingly, we proceed with plain-error review. See ORAP
5.45(1) (giving us discretion to correct a “plain” error); State
v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (an error
is “plain” when it is an error of law, the legal point is obvi-
ous and not reasonably in dispute, and the error is apparent
on the record without the appellate court having to choose
among competing inferences).
The trial court did not plainly err by allowing the
prosecutor to inquire on cross-examination whether defendant
1
Evidence that a witness has been convicted of a crime punishable by more
than one year of imprisonment is admissible “[f]or the purpose of attacking the
credibility of a witness,” OEC 609(1)(a), but not if “more than 15 years has elapsed
since the date of the conviction or of the release of the witness from the confine-
ment imposed for that conviction, whichever is the later date[,]” OEC 609(3)(a).
786 State v. Cameron
had been convicted of “crimes of violence” in the past. Under
OEC 405(1), the state was permitted to inquire on cross-
examination as to specific instances of violent conduct. The
prosecutor asked defendant whether he had been convicted
of crimes of violence. The prosecutor did not ask specifically
about defendant’s 2004 UUW and IPO convictions; rather,
it was defendant who characterized those convictions as
involving “crimes of violence” by answering the question
as he did. It is possible that defendant misunderstood the
question and answered with prior convictions for nonviolent
crimes. Both UUW and IPO may be committed in a vari-
ety of ways that may or may not be violent. The trial court
did not plainly err, however, by allowing the state to inquire
about past convictions for “crimes of violence.”
Nor was the trial court obligated to intervene sua
sponte after defendant answered the question—stating that
he had been convicted of UUW and IPO in 2004—to confirm
with him that those crimes involved violence. Defendant
was asked and answered a question about past convictions
for “crimes of violence,” and both UUW and IPO can be com-
mitted in violent ways. It was not plain error for the court
to accept the answer that defendant gave. We reject the first
assignment of error.
In his second assignment of error, defendant chal-
lenges the exclusion of his rebuttal testimony regarding the
circumstances of the 2004 convictions. The state concedes
that it was error not to allow defendant to explain the cir-
cumstances of the convictions at least briefly, but it argues
that the error was harmless for various reasons.2
2
“Harmless error” is a “shorthand reference to a legal standard” under
Article VII (Amended), section 3, of the Oregon Constitution. State v. Davis, 336
Or 19, 27-28, 77 P3d 1111 (2003). That standard reduces to “a single inquiry: Is
there little likelihood that the particular error affected the verdict?” Id. at 32. If
so, we must affirm, notwithstanding the error. Id. Our focus “is on the possible
influence of the error on the verdict rendered, not whether this court, sitting as
a fact-finder, would regard the evidence of guilt as substantial and compelling.”
Id. Significantly, it is the defendant’s burden to show that an evidentiary error
prejudiced a substantial right, i.e., was not harmless. State v. Nguyen, 293 Or App
492, 498, 429 P3d 410 (2018) (“[D]efendant has the burden to demonstrate that
the error affected a substantial right.”); State v. Torres, 206 Or App 436, 445, 136
P3d 1132 (2006) (“The burden is on a defendant who appeals his conviction to
show that a court’s error affected a substantial right.”).
Nonprecedential Memo Op: 323 Or App 783 (2023) 787
We agree with the parties that the trial court erred
when it did not allow defendant to testify at least briefly
to the circumstances of the 2004 convictions. However, we
conclude that an offer of proof was necessary to properly pre-
serve that claim of error and to make it possible for defen-
dant to show that the error affected a substantial right, i.e.,
was not harmless.
“Normally, an offer of proof is required to preserve
error when a trial court excludes testimony. The purpose
of this rule is to assure that appellate courts are able to
determine whether it was error to exclude the evidence and
whether any error was likely to have affected the result
of the case.” State v. Affeld, 307 Or 125, 128, 764 P2d 220(1988); see also State v. Krieger, 291 Or App 450, 451, 455,
422 P3d 300, rev den, 363 Or 599 (2018) (rejecting claim of
error regarding exclusion of testimony, because the defen-
dant “did not make an offer of proof sufficient to permit us
to determine whether any error in excluding the testimony
was prejudicial,” and identifying “several purposes” served
by an offer of proof, both in the trial court and on appeal);
OEC 103(1)(b) (“Evidential error is not presumed to be prej-
udicial. Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the
party is affected, and * * * [i]n case the ruling is one exclud-
ing evidence, the substance of the evidence was made known
to the court by offer or was apparent from the context within
which questions were asked.”).
Because there was no offer of proof, we do not know
what defendant would have testified regarding the circum-
stances of the 2004 convictions, which in turn makes it
impossible for us to assess whether the erroneous exclusion
of that testimony had any likelihood of affecting the verdict.
In such circumstances, we must affirm.
Affirmed.