State v. Bassett , 329 Or. App. 817 ( 2023 )

No. 693 December 28, 2023 817
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
EVAN ALVERO BASSETT,
Defendant-Appellant.
Tillamook County Circuit Court
20CR16184; A177479
Jonathan R. Hill, Judge.
Submitted November 13, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
JOYCE, J.
Affirmed.
818 State v. Bassett
JOYCE, J.
Defendant appeals from a judgment of convic-
tion for aggravated theft in the first degree, ORS 164.057,
and unauthorized use of a vehicle (UUV), ORS 164.135.
Defendant raises two assignments of error, arguing first
that the trial court erred when it allowed a state witness to
testify via video, and second that it erred when it failed to
merge defendant’s guilty verdicts for aggravated theft and
UUV. We affirm.
Admission of video testimony. Defendant first con-
tends that the trial court erred in allowing a state’s witness,
Williams, to testify via video. We ultimately conclude that
defendant failed to preserve this claim of error.
On the first day of trial, the state told the court
that Williams had come into contact with someone who
had COVID, and that Williams had developed symptoms
of COVID within the past “8 or 9 days.” The trial court
concluded—and both counsel agreed—that until Williams
tested negative, he would not be able to testify in person.
On the third day of trial, the state confirmed that Williams
had tested positive for COVID. The state thus proposed that
Williams testify by video.
Defendant objected, arguing that
“the disconnect between the witness and the questioners
and the jurors who have to evaluate that witness, it’s—
there’s a huge disconnect there and so I do object to a wit-
ness testifying by video, Your Honor. I think that the wit-
nesses should be required to be here * * * [to] testify.”
The state responded that video testimony would afford
most of the same features as in-person testimony. The court
offered other options for moving forward, including begin-
ning the trial and extending the jury’s service until Williams
could testify in person. Defendant re-stated his objection
to the video testimony, stating “Confrontation [C]lause[,]
Your Honor, is my primary concern.” The trial court reserved
ruling to allow the parties to research the issue of video
appearance by a witness.
Nonprecedential Memo Op: 329 Or App 817 (2023) 819
On the fourth day of trial, the state confirmed that
Williams was still testing positive for COVID. Defendant
continued to object to video testimony. He cited ORS
136.420, which provides that testimony is to be given “orally
in the presence of the court and jury” in criminal matters.
Defendant also argued that video testimony was a “constitu-
tional violation,” without further specification.
The state countered that Chief Justice Order (CJO)
No. 21-025 (June 28, 2021) allowed the presiding judge to
decide whether to allow video appearances, superseding
any statute or rule.1 The state then contended that the
only possible argument against video testimony would be
defendant’s constitutional rights to confrontation under
the Sixth Amendment to the United States Constitution
and Article I, Section 11, of the Oregon Constitution. But
the state explained that the video testimony could achieve
the purposes of confrontation, including allowing for cross-
examination and for the jury to be able to evaluate a witness’s
demeanor. In response, defendant again cited ORS 136.420
and stated, without elaboration, that video testimony would
be a “[C]onfrontation [C]lause violation.” The court overruled
defendant’s objection, reasoning that, although audio testi-
mony would not be permissible under the “[United States]
or Oregon constitutions,” video testimony would be permis-
sible because it would allow the jury to observe the witness’s
demeanor and counsel to examine the witness.
On appeal, defendant argues that the trial court’s
ruling allowing video testimony violated his state and fed-
eral rights to confrontation. Unlike his argument below that
video testimony is de facto unconstitutional, he now contends
that video testimony may be constitutional, but only where
the trial court (1) identifies a case-specific reason that tes-
tifying by video is necessary to further an important public
policy and (2) the reliability of the testimony is assured.
That claim is very different from the one that defen-
dant raised below. To be sure, both his argument below and
his argument on appeal broadly invoke the Confrontation
1
At the time of trial, the state was under emergency COVID-19 orders,
including CJO No. 21-025, which stated that remote appearances were permitted
unless the constitution required in-person appearance.
820 State v. Bassett
Clause.2 But, the argument that defendant now raises on
appeal is far more particularized; he urges us to adopt a rule
that video testimony may be allowed only in the event that
the trial court makes particular findings. Because defen-
dant did not alert the trial court that there were case-specific
findings that needed to be made, the trial court did not have
a meaningful opportunity to make those particular find-
ings, and potentially correct the error that defendant now
claims on appeal. See Dept. of Human Services v. T. M. G.,
307 Or App 117, 123-24, 475 P3d 936 (2020), rev dismissed,
368 Or 206 (2021) (holding that mother’s general objection
at the hearing did not alert the trial court to her request on
appeal for the court to evaluate whether evidence was suf-
ficient to overcome mother’s presumption of being a fit par-
ent); State v. Walker, 350 Or 540, 552, 258 P3d 1228 (2011)
(explaining that, to preserve an argument, a party must
give “opponents and the trial court enough information to
be able to understand the contention and to fairly respond to
it”). Because defendant did not preserve the argument that
he makes on appeal, we do not address it.
Failure to merge defendant’s guilty verdicts for aggra-
vated theft and UUV. In his second claim of error, defendant
argues that the trial court erred when it declined to merge
defendant’s UUV and aggravated first-degree theft guilty
verdicts. Defendant’s claim of error is controlled by State
v. Noe, 242 Or App 530, 533, 256 P3d 166 (2011), in which
we concluded that those offenses do not merge because each
requires proof of an element that the other does not. We
are unpersuaded by defendant’s arguments that Noe was
wrongly decided and should be overruled, and we therefore
decline to do so.
Affirmed.
2
As the state observes, defendant did not specify during trial whether he
was making a Confrontation Clause objection under the state or federal consti-
tution or both. On appeal, he asks us to adopt a test from federal Confrontation
Clause cases and apply that rule under both the state and federal constitutions.