Submitted June 29, 2017
County Circuit Court 15CR10510; Lorenzo A. Mejia, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Andrew D. Robinson, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Christopher A. Perdue, Assistant Attorney
General, fled the brief for respondent.
Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds,
Summary: Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894.
Defendant challenges the trial court's admission of
certain evidence over his OEC 403 objection, arguing that the
record fails to demonstrate that the trial court engaged in
the inquiry required by State v. Mayfield, 302 Or.
631, 645, 733 P.2d 438 (1987). In response, the state argues
that defendant failed to preserve his contention and,
alternatively, that the trial court's analysis comports
with Mayfield and any error is harmless.
Held: The trial court did not err. Defendant's
argument was preserved for appeal; a request that a court
balance the probative value of evidence against the danger of
unfair prejudice preserves a contention that the trial court
erred under Mayfield. However, the trial court's
decision, in view of the totality of attendant circumstances,
comports with the requirements of Mayfield because
the record demonstrates that the trial court consciously
conducted the balancing required under OEC 403 and also
supplies an adequate basis for meaningful appellate review.
Or.App. 489] LAGESEN, J.
appeals a judgment of conviction for one count of unlawful
possession of methamphetamine, ORS 475.894. In his first
assignment of error, defendant challenges the trial
court's admission of evidence-over defendant's OEC
403 objection-that defendant also possessed a syringe at the
same time he possessed the methamphetamine. Defendant
contends that the record fails to demonstrate that the trial
court engaged in the inquiry required by State v.
Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987),
entitling him to a reversal of his conviction. In his second
assignment of error, defendant contends that the trial court
erroneously admitted certain chain-of-custody evidence. We
reject defendant's second assignment of error without
further written discussion and, for the reasons that follow,
also reject the first. We therefore affirm.
facts pertinent to the issue on appeal are not disputed.
Defendant was arrested in connection with an unrelated
matter. The arresting officer, Corporal Whiteman of the
Medford Police Department, asked defendant whether he had
anything illegal on him that he did not want to bring to
jail. Defendant told the officer that he had found a
cigarette pack with a baggie inside it in the parking lot,
and that he did not know what was in the baggie. The officer
then asked defendant for consent to search his person and
also to remove the cigarette pack that defendant had
mentioned; defendant agreed that Whiteman could do so. The
baggie in the cigarette pack contained a white crystalline
substance that Whiteman suspected was methamphetamine.
Whiteman then asked if defendant had any syringes on him.
Defendant denied having any syringes on him, but Whiteman
found a syringe and another baggie containing cotton in
defendant's shirt pocket. Subsequent laboratory tests
revealed that the substance in the baggie was
methamphetamine, as Whiteman had suspected. Thereafter, [289
Or.App. 490] defendant was charged with one count of
"unlawfully and knowingly" possessing
methamphetamine, in violation of ORS 475.894.
trial, defendant moved to exclude evidence that he had also
possessed the syringe. Defendant asserted that the syringe
"wasn't tested" and that defendant "could
have a legitimate medical reason for having it, " and
that evidence of the syringe would be "more prejudicial
* * * than probative." The trial court denied the
motion, explaining that "it is more probative *** than
prejudicial." Later, at trial, defendant renewed his
objection to the admission of evidence of the syringe when
the state introduced a photograph of it as an exhibit.
Defendant acknowledged the court's previous ruling, but
stated that he was objecting for the record. Consistent with
its previous ruling, the trial court overruled the objection.
In closing, the state argued that the evidence that defendant
possessed a syringe and cotton supported the inference that
he knowingly possessed the methamphetamine found in the
cigarette pack, pointing also to testimony from Whiteman
explaining that syringes and cotton are used in conjunction
with methamphetamine. The jury convicted defendant and
appeal, as noted, defendant assigns error to the trial
court's admission of the evidence of the syringe over his
OEC 403 objection. Defendant does not dispute that the
evidence was relevant under OEC 401. As we understand his
position, defendant also does not argue that it necessarily
was an abuse of discretion for the trial court to conclude
under OEC 403 that the probative value of the evidence was
not substantially outweighed by the danger of unfair
prejudice. Instead, defendant argues that the trial court
committed a procedural error "by admitting evidence that
defendant had a syringe in his pocket without properly
applying OEC 403" in the manner dictated by
Mayfield. Specifically, defendant contends that
"[n]othing in the record indicates that the court
considered the matters prescribed by Mayfield before
admitting the syringe evidence. The court stated that the
evidence was more probative than prejudicial, but that
conclusory statement does not show that the court actually
'analyze[d] [289 Or.App. 491] the quantum of probative
value of the evidence' or 'determine[d] how
prejudicial the evidence [was.]'"
further asserts that the "court's cursory gesture at
the balancing process occurred before trial, when it would
have been impossible to make a genuine evaluation of the
evidence's probative value." Defendant argues that
the state never told the trial court why it wanted to use the
syringe, or presented evidence, before the trial court ruled
or during trial, that the syringe could have been used to
inject methamphetamine, which might have been probative of
mens rea. That, in defendant's view, rendered
the trial court's Mayfield analysis
insufficient. In response, the state argues that defendant
failed to preserve his contention that the trial court's
analysis failed to comply with Mayfield because
defendant never told the trial court explicitly that its
analysis did not comport with Mayfield, or otherwise