State v. Leahy ( 2022 )

772
On appellant’s petition for reconsideration filed April 20; reconsideration
allowed, former opinion (318 Or App 849, 509 P3d 699) modified and adhered to
as modified July 13, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JESSE GRAHAM LEAHY,
Defendant-Appellant.
Jackson County Circuit Court
18CR05720; A172602
513 P3d 625
Lorenzo A. Mejia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, for petition.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.
PER CURIAM
Reconsideration allowed; former opinion modified and
adhered to as modified.
Cite as 320 Or App 772 (2022) 773
PER CURIAM
Defendant petitions for reconsideration of our deci-
sion in State v. Leahy, 318 Or App 849, 509 P3d 699 (2022),
in which we affirmed his conviction for telephonic harass-
ment, ORS 166.090(1), for causing the victim’s phone “to
ring” after being told not to call her. Id. at 850. In partic-
ular, we rejected defendant’s argument that the trial court
erred in denying defendant’s motion for judgment of acquit-
tal. We allow reconsideration to address the arguments in
defendant’s petition and, ultimately, clarify and adhere to
our prior decision.
Defendant first argues that we should reconsider
our affirmance. Defendant notes that our decision relied on
a phone call that defendant made to the victim’s work phone.
Defendant observes that the state did not rely on that par-
ticular call in its respondent’s brief, and argues that, accord-
ingly, the court should not have relied on that evidence either.
Defendant points out a potential issue regarding whether
that call fell within the time range alleged in the indict-
ment. But regardless of the particular evidence on which
the state elected to focus on appeal, our standard of review
requires us to consider the whole record, and evidence of
that call was part of the record that was presented to the
jury. As the Supreme Court explained in State v. Lamphere,
233 Or 330, 332, 378 P2d 706 (1963), “the appellate court
will consider all the evidence and will not reverse the trial
court if the record as a whole contains sufficient evidence to
support a verdict against defendant.” Moreover, with respect
to the timing question that defendant identifies in his peti-
tion for reconsideration, defendant explicitly acknowledged
in the trial court that any timing issue regarding the call to
the victim’s work phone was a question for the jury, noting
“I also believe that’s [an] on or about date problem [with the
work phone incident], but that’s an issue more reserved for
the jury, but I don’t see any reason to think the work phone
ever necessarily rang either.” In other words, evidence of
the call to the work phone is part of the case submitted to
the jury and, for that reason, must be considered in eval-
uating the sufficiency of the evidence to support the jury’s
verdict.
774 State v. Leahy
Defendant also argues that it is too speculative
to infer that the victim’s work phone rang. He urges us to
reconsider our contrary conclusion. We decline to do so.
Finally, defendant notes that our decision did not
expressly address his remaining two assignments of error,
in which defendant argued that the trial court failed to con-
duct OEC 403 balancing when admitting certain text mes-
sages from defendant and testimony related to those mes-
sages. We do not find those assignments of error persuasive;
we modify our opinion to make that explicit. We do so by
adding the following paragraph at the end of our opinion:
“In his remaining assignments of error, defendant
asserts that the trial court erroneously failed to conduct
OEC 403 balancing when admitting certain evidence or,
alternatively, did not make an adequate record of that bal-
ancing. To the extent that those contentions are adequately
preserved, we are not persuaded by them.”
Reconsideration allowed; former opinion modified
and adhered to as modified.