State v. Garcia-Vasquez ( 2023 )

680
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted February 27, affirmed August 30, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
ABELINO GARCIA-VASQUEZ,
Defendant-Appellant.
Washington County Circuit Court
19CR53639; A175832
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appel-
lant. Abelino Garcia-Vaquez filed the supplemental brief
pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 327 Or App 680 (2023) 681
ORTEGA, P. J.
In this criminal appeal, a jury found defendant
guilty of two counts each of first- and second-degree unlaw-
ful sexual penetration and seven counts of first-degree
sexual abuse against two minors. Defendant raises six
assignments of error, including four pro se assignments,
challenging the admissibility and exclusion of evidence, a
jury instruction, and the denial of a motion for judgment of
acquittal (MJOA) on Count 9 (unlawful sexual penetration
in the first degree). We summarily reject defendant’s pro se
assignments of error, some of which are repetitive of other
assignments, because defendant has failed to establish any
error.1 We likewise reject defendant’s second assignment of
error because we agree with the state that the challenged
instruction was neither confusing nor incorrect in the con-
text of the instructions as a whole. We write only to address
the first assignment of error and, concluding that it was not
preserved, we affirm.
Appellate courts generally will not review a claim of
error that was not preserved in the lower court. ORAP 5.45(1).
However, unpreserved errors may be reviewed for plain error
at our discretion. Ailes v. Portland Meadows, Inc., 312 Or 376,
381-82, 823 P2d 956 (1991) (a plain error is an “error[ ] of law
apparent on the face of the record”). We begin by providing
the facts that are necessary to explain our decision.
At defendant’s trial, one of the victims testified that
defendant threatened her family if she reported abuse. The
victim also testified that she spoke to her therapist about the
threats. In order to corroborate those statements, the state
sought to add the therapist as a witness. Defendant objected
to the proposed testimony, arguing that the state could not
interject a new witness “and new discovery in the middle
of [the] trial at the close of the [s]tate’s case.” As the thera-
pist was about to be called to the stand, defendant renewed
his objection, asserting that the therapist’s testimony con-
stituted a discovery violation and was “outside the scope of
the [s]tate’s [OEC 803](18a)(b) notice.”2 The state contended
1
We specifically note that defendant was acquitted on Count 9.
2
OEC 803(18a) addresses a hearsay exception relating to a child’s out-of-
court statements regarding an act of abuse and has a notice requirement.
682 State v. Garcia-Vasquez
that the testimony was admissible because “[t]hey’re state-
ments made for purposes of * * * psychotherapy and treat-
ment, which come in for their truth” under OEC 803(4)
rather than under OEC 803(18a). Defendant did not oppose
the state’s argument regarding OEC 803(4). The trial court
allowed the therapist to testify about the victim’s statements
regarding threats made by defendant.
On appeal, defendant argues that the therapist’s
testimony should have been excluded as hearsay because
it did not meet the requirements for admission under OEC
803(4). That rule allows for admission of “[s]tatements made
for purposes of medical diagnosis or treatment and describ-
ing medical history, or past or present symptoms, pain or
sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent
to diagnosis or treatment.” Defendant argues that the state
was not able to establish that the victim spoke to her thera-
pist about the threats “for the purpose of medical diagnosis
or treatment.” The state argues in response that defendant
presents a materially different argument on appeal than he
did below. We agree.
As noted above, defendant’s objections at trial
focused on the notice requirement and discovery procedures
as if the disputed evidence was being admitted under OEC
803(18a)—despite the state’s argument that OEC 803(18a)
was not the basis for admission—while his argument on
appeal challenges the admissibility of that evidence under
OEC 803(4). Because defendant did not challenge the appli-
cability of OEC 803(4) below, his arguments on appeal “impli-
cate materially different legal issues” and are therefore
unpreserved. See State v. Johnson, 288 Or App 528, 535-36,
406 P3d 1091 (2017), rev den, 362 Or 389 (2018). Although
we may, at our discretion, review an unpreserved argument
for plain error, Ailes, 312 Or at 381, defendant does not
argue that any error was plain, and we do not undertake
that analysis.
Affirmed.