State v. Price ( 2024 )

224 January 10, 2024 No. 31
This is a nonprecedential memorandum opinion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.
DARIEN DAQUAR PRICE,
Defendant-Appellant.
Yamhill County Circuit Court
20CR30001; A176421
Ladd J. Wiles, Judge.
Submitted May 25, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JACQUOT, J.
Affirmed.
Nonprecedential Memo Op: 330 Or App 224 (2024) 225
JACQUOT, J.
Following a bench trial, defendant was convicted of
first-degree assault, ORS 163.185, and first-degree criminal
mistreatment, ORS 163.205, for causing multiple injuries
to a three-year-old child. On appeal, defendant first argues
that the trial court plainly erred because it entered a ver-
dict on both counts without finding that he acted with the
proper culpable mental state with regard to the physical-in-
jury element of the offenses. Defendant also argues that the
trial court erred by finding that a five-year-old witness was
competent to testify. We affirm.
Defendant seeks reversal of both of his convictions
on the grounds that the trial court plainly erred when it
failed to find that the state proved that he acted with the
required culpable mental state for the physical-injury ele-
ment of both offenses. The state was required to prove that
defendant was at least criminally negligent with respect
to the injuries he caused. State v. Allen, 321 Or App 678,
684-85, 517 P3d 1055 (2022).1 Defendant did not preserve
his claim and requests that we exercise plain-error review.
ORAP 5.45(1). The state contends that, in this particular
case (which involved a bench trial), any error is not plain
and, regardless, any error that might have occurred was
harmless.
“Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 331 Or 335,
341, 15 P3d 22 (2000). However, we have discretion to correct
a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a matter
of discretion whether we will correct a plain error. State v.
Gornick, 340 Or 160, 166, 130 P3d 780 (2006). A trial court’s
instructional error is harmless if there is “little likelihood
that the error affected the verdict.” State v. McKinney, 369
1
To the extent that defendant contends that the statutes at issue here require
more than criminal negligence, those legal points are not “obvious and not rea-
sonably in dispute,” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013), and,
accordingly, those arguments are not appropriate for plain-error review.
226 State v. Price
Or 325, 334, 505 P3d 946 (2022) (quoting State v. Davis, 336
Or 19, 32, 77 P3d 1111 (2003)). However, “[e]ven if an error
does not qualify as ‘harmless,’ our assessment of where it
falls on the spectrum of ‘likelihood’ of having affected the
verdict can be an important consideration to the exercise of
discretion.” State v. Horton, 327 Or App 256, 264, 535 P3d
338 (2023).
We need not resolve the question of whether the
error was plain because in any event, even if the trial court
plainly erred, we would not exercise our discretion to correct
the error in these circumstances. The court found defendant
guilty after hearing evidence that, to punish his three-year-
old stepson for jumping on the bed, defendant hit the child
hard enough to break his jaw, requiring the placement of
three metal plates to repair it, as well as inflicting a sepa-
rate injury to the child’s forehead, which had a large knot
on it. The court necessarily credited that evidence in reach-
ing the verdict that it did, and it necessarily found that
defendant intentionally or knowingly engaged in that con-
duct. See ORS 163.185(1)(b) (“A person commits the crime
of assault in the first degree if the person * * * [i]ntention-
ally or knowingly causes serious physical injury to a child
under six years of age[.]”); ORS 163.205(1)(b)(A) (a person
commits the crime of first-degree criminal mistreatment if
the person “intentionally or knowingly * * * [c]auses physi-
cal injury or injuries to the dependent person”). Under the
circumstances, regardless of whether any error is strictly
harmless, the likelihood that it affected the court’s verdict
is so low that we are unpersuaded that the ends of justice
merit reversal based on the unpreserved claim of error. See
Horton, 327 Or App at 264 (“The likelihood that the error
affected the outcome goes to its ‘gravity’ and to ‘the ends of
justice.’ ”); see also State v. Roy, 275 Or App 107, 113, 364 P3d
1003 (2015), rev den, 359 Or 525 (2016) (recognizing that we
exercise our discretion with “utmost caution,” taking into
account “the ends of justice” (internal quotation marks
omitted)).
Defendant also challenges the trial court’s find-
ing that the five-year-old witness was competent to tes-
tify. We review a trial court’s determination about witness
Nonprecedential Memo Op: 330 Or App 224 (2024) 227
competency for abuse of discretion. State v. Sarich, 352 Or
601, 615-16, 291 P3d 647 (2012). Decisions about witness
competency lean in favor of allowing the testimony. State
v. Milbradt, 305 Or 621, 624, 756 P2d 620 (1988). “A com-
petent witness need only be able to recognize the necessity
of telling the truth, to have personal knowledge and recol-
lection of the relevant events, and be able to communicate
that knowledge to the jury.” State v. Sullivan, 217 Or App
208, 212, 174 P3d 1095 (2007), rev den, 344 Or 539 (2008).
The witness’s perceptions must “encompass[ ] the sort of per-
ceptions that will be relevant to the issues to be decided at
trial” so that it is “worthwhile for the person to testify.” State
v. J. H., 326 Or App 640, 645, 533 P3d 363 (2023) (citing
Sarich, 352 Or at 616). Defendant argues that because the
witness answered some preliminary foundational questions
incorrectly, and the trial court did not directly admonish the
witness that he was required to tell the truth, the trial court
erred when it found the witness competent to testify.
The trial court did not abuse its discretion. Although
the witness answered some questions incorrectly, he also
answered many correctly. And, although the trial court
did not warn the witness directly, the witness affirmed the
importance of only telling the truth and that everything he
said while on the stand “ha[d] to be true.”
Affirmed.