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State v. Smith

Court of Appeals of Oregon

November 14, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
LARRY DALE SMITH, JR., Defendant-Appellant.

          Argued and Submitted October 10, 2017

          Washington County Circuit Court C150361CR; Rick Knapp, Judge.

          Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for one count of first-degree rape, ORS 163.375, and two counts of first-degree unlawful sexual penetration, ORS 163.411. Defendant assigns error to the trial court's ruling that the state could impeach him under OEC 806 if he presented evidence that he had attempted to withdraw a guilty plea entered in another case. He argues that, because the state offered evidence that he had previously pleaded guilty to sexually abusing the same victim, OEC 106, known as the rule of completeness, compelled the court to admit statements he had made in an effort to withdraw that plea, without subjecting him to impeachment under OEC 806.

         Held:

         The trial court did not err. OEC 106 does not supply an independent basis for admission of otherwise inadmissible evidence. Therefore, OEC 106 did not require the trial court to admit defendant's attempts to withdraw his plea, and, when offered by defendant, those statements would constitute hearsay subject to the provisions of OEC 806.

          [300 Or.App. 486] DEHOOG, P. J.

         Defendant appeals a judgment of conviction for one count of rape in the first degree and two counts of unlawful sexual penetration in the first degree.[1] In his first assignment of error, defendant contends that the trial court erred when it ruled that the state could impeach him under OEC 806 if he presented evidence that he had attempted to withdraw a guilty plea that he had previously entered in another case. Defendant argues that when the state offered evidence that he had pleaded guilty in another county to sexually abusing the same victim, the "rule of completeness," OEC 106, compelled the court to admit statements he had made in an effort to withdraw that plea, without subjecting him to impeachment under OEC 806 (permitting impeachment of hearsay declarant as though the declarant had testified).[2]The state responds that OEC 106 did not apply to defendant's statements at all; the state further argues that, to the extent that the rule of completeness did require the court to admit those statements, that would not alter their character as hearsay, subjecting defendant to impeachment under OEC 806. We conclude that, contrary to defendant's contention, OEC 106 did not require the trial court to admit evidence of defendant's attempts to withdraw his plea or render the state the proponent of that evidence; thus, if offered by defendant, those statements would constitute hearsay, and defendant, as the declarant, would be subject to the impeachment provisions of OEC 806. We therefore affirm.[3]

         The relevant facts are procedural and undisputed. Defendant was indicted in both Washington and Clackamas counties for sexually abusing the same child. He entered [300 Or.App. 487] into a global settlement agreement in which he agreed to plead guilty to one or more charges in each county. As agreed, defendant pleaded guilty to first-degree sodomy in Clackamas County, and the court scheduled his sentencing on that charge for a later date. Before that date arrived, however, defendant sought to withdraw his plea. First, defendant wrote a letter to the sentencing court in which he proclaimed his innocence and expressed his desire to withdraw his plea. Then, at the time of his sentencing in Clackamas County, defendant formally moved to withdraw his plea and again professed his innocence. The court denied defendant's motion, proceeded to sentence him on the sodomy charge based upon his guilty plea, and entered a judgment of conviction.

         Upon returning to Washington County, defendant opted not to enter a guilty plea as previously contemplated and instead proceeded to trial. Before trial, defendant moved, citing OEC 401 (relevance) and OEC 403 (exclusion of unfairly prejudicial evidence), to exclude evidence of his alleged conduct in Clackamas County, as well as evidence that he had pleaded guilty to sodomy and been convicted of that offense. The trial court denied defendant's motion, ruling that both defendant's conduct and his related admissions were relevant and not unfairly prejudicial.[4] Defendant next argued that if the jury were to hear evidence of his guilty plea and conviction, the rule of completeness under OEC 106 would require the court to allow the jury to also hear that he had tried to withdraw that plea.[5] The state responded that if defendant were to present evidence of his attempt to withdraw his plea, it would constitute hearsay and the state would be permitted under OEC 806 to impeach him [300 Or.App. 488] as though he had testified.[6] Specifically, the state sought a ruling allowing it to impeach defendant with a prior, unrelated third-degree rape conviction if the court admitted evidence of his attempt to withdraw his plea. Following a lengthy discussion of defendant's guilty plea and sentencing in Clackamas County, the trial court ruled as follows:

"So this is my ruling up to this point now.
"The state can get into the plea petition, *** basically the statement that he admitted to Sodomy in the First Degree.
"But if the state gets into the conviction-I know we're splitting hairs here, but significant hairs. If the state gets into the conviction, then everything-in terms of if you want to use [defense counsel's] expression, for the rule of completeness, we're talking about a conviction that's entered on a particular date, and that ...

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