In this consolidated case, defendant appeals from a judgment of conviction in Case No. 16CR76866 of one count of sodomy in the first degree, ORS 163.405; one count of sexual abuse in the first degree, ORS 163.427; and one count of incest, ORS 163.525. In Case No. 060533149, defendant appeals from a revocation of probation. Defendant raises three assignments of error—the first challenging his impeachment by a prior conviction without balancing admission of that evidence under OEC 403, the second challenging the trial courts giving of a nonunanimous jury instruction, and the third conditionally challenging the revocation of his probation, dependent upon our resolution of his first assignment of error. We affirm.
Recitation of the facts underlying this case do not serve the bench or bar and are not necessary in explaining our disposition. In this case, defense counsel elicited defendants own exculpatory statement from the investigating detective on cross-examination. In response, the state sought to admit defendants prior felony conviction as impeachment.
OEC 806 provides, in pertinent part:
“When a hearsay statement * * * has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness.”
On appeal, defendant does not dispute the statement elicited was exculpatory, nor that OEC 806 permitted admission of his prior criminal conviction for impeachment purposes. However, defendant argues that admission of his prior conviction was prohibited because its probative value was outweighed by the prejudice, and that the trial court failed to engage in OEC 403 balancing.
Defendant acknowledges that prior Oregon cases have held that OEC 609, which allows the impeachment of a witness by certain criminal convictions, prohibits balancing under OEC 403. See, e.g., State v. Venegas, 124 Or. App. 253, 256, 862 P.2d 529 (1993); State v. King, 307 Or. 332, 337, 768 P.2d 391 (1989); State v. Dick, 91 Or. App. 294, 298-99, 754 P.2d 628 (1988).
However, defendant argues that more recent cases such as State v. Williams, 357 Or. 1, 346 P.3d 455 (2015) and State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), establish that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires OEC 403 balancing, if requested by the defendant, anytime the state seeks to introduce prior crimes, wrongs, or acts against a defendant regardless of the purpose for which the evidence is offered.
Whatever potential merits of defendants argument in this area, that argument in unpreserved. Defendant did not ask for OEC 403 balancing at trial, let alone argue that the Due Process Clause required such balancing. Defendants argument on this point is not obvious and beyond dispute and does not qualify as plain error under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991).
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Defendant also challenges the trial courts instruction to the jury that it could return a nonunanimous verdict. Although defendant preserved this issue, the jurys verdict in this case was unanimous on all counts, rendering the error harmless pursuant to State v. Flores Ramos, 367 Or. 292, 323-24, 478 P.3d 515 (2020).
Affirmed.
FOOTNOTES
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. Our resolution on this first assignment of error also resolves defendants third assignment of error.
JAMES, J.