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State v. Salsman

Court of Appeals of Oregon

February 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID ALAN SALSMAN, Defendant-Appellant.

          Submitted June 29, 2017

         Linn County Circuit Court 14CR05731; Daniel R. Murphy, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.

          Before Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for three counts of first-degree sodomy and three counts of first-degree sexual abuse. Defendant assigns error to the trial court's admission of certain evidence over defendant's OEC 403 objection, arguing that the trial court failed to make a record refecting the proper exercise of discretion as is required by State v. Mayfeld, 302 Or. 631, 733 P.2d 438 (1987). Held: The trial court erred because it failed to create a record that satisfied Mayfeld when it overruled defendant's OEC 403 objection. Nothing in the record indicated that the trial court consciously conducted the required balancing, and the record did not permit meaningful review of the trial court's ruling. On remand, under State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), the trial court must engage in the on-the-record OEC 403 balancing required by Mayfeld and such other proceedings as may be required as a result of that balancing.

         Reversed and remanded.

         [290 Or.App. 347] LAGESEN, J.

         Defendant appeals a judgment of conviction for three counts of first-degree sodomy (Counts 1 to 3), ORS 163.405, and three counts of first-degree sexual abuse (Counts 4 to 6), ORS 163.427. A jury found that defendant committed those crimes by abusing his niece over a number of months around the time she turned 10. On appeal, he contends that (1) the trial court plainly erred when it did not acquit him on Counts 1, 4, 5, and 6; (2) the trial court erred when it admitted certain evidence over defendant's OEC 403 objection without creating the record required by State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987); (3) the trial court erred when it excluded testimony from two witnesses regarding defendant's inability to have an erection some 15 to 20 years before the events in question in this case; and (4) the trial court erred when it excluded testimony from the same two witnesses regarding their observations of defendant's behavior when defendant was experiencing low-blood-sugar episodes. With the exception of defendant's contention that the trial court erred by not creating the record required by Mayfield, we reject defendant's assignments of error without further written discussion. However, we agree with defendant that the trial court did not comport with the requirements of Mayfield when it overruled defendant's OEC 403 objection to certain evidence and, for that reason, reverse and remand for the trial court to engage in the on-the-record OEC 403 balancing required by Mayfield, and such other proceedings as may be required as a result of that balancing.

         Defendant's assignments of error put at issue the adequacy of the trial court's OEC 403 balancing with respect to five items of evidence: (1) a photo of defendant's office showing it decorated with female action figures;[1](2) an officer's testimony regarding a sexually explicit image of the Disney character Cinderella found on defendant's computer; (3) a photograph of that image of Cinderella; (4) a photograph of defendant's bedroom showing it decorated with additional female action figures; and (5) a binder [290 Or.App. 348] of sexually explicit images that an officer seized from defendant. It appears that the state sought to introduce the evidence to demonstrate how defendant used the images to facilitate the abuse, and also to corroborate details in the victim's version of events, including that defendant showed her sexually explicit images. In the trial court, defendant objected to the admission of each item of evidence under OEC 403, arguing that the evidence was more prejudicial than probative.

         The trial court overruled defendant's objections. Regarding the images included in the binder and the Cinderella image, the court ruled that it was admitting the evidence "on the same basis" that it admitted evidence of the victim's statements about the images, to which defendant also had objected.[2] Regarding the officer's testimony about the Cinderella image, the court allowed the testimony on the ground that it had already ruled that the image was admissible. Regarding the photograph of defendant's bedroom and office, the trial court admitted the evidence without comment.

         On appeal, defendant argues that the trial court erred in overruling his OEC 403 objections without creating the record required under Mayfield, that is, that the court "fail[ed] to make a record which reflects an exercise of discretion." Mayfield, 302 Or at 645. In response, the state argues that defendant failed to preserve his argument that the trial court's record does not comport with Mayfield because he did not make that specific point to the trial court and, alternatively, that the trial court's record meets the requirements of Mayfield.

         The state's preservation argument fails as a matter of law. As we recently explained, under State v. Anderson.282 Or.App. 24, 386 P.3d 154 (2016), rev allowed,361 Or. 486 (2017), by requesting that a trial court engage in the balancing required by OEC 403, a defendant "preserves for appeal a contention that the trial court erred under Mayfield either by failing to conduct the balancing required or by failing to [290 Or.App. 349] make an adequate record of that balancing." State v. Ydrogo,289 Or.App. 488, 491, ___ P.3d ___ (2017). Therefore, by ...


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