This is a consolidated appeal in which defendant challenges convictions for unauthorized use of a vehicle (UUV), felony fleeing or attempting to elude, and first-degree theft. He was convicted of one count of UUV and one count of felony attempting to elude in Case No. 18CR05809. In Case No. 18CR07290, he was convicted of four counts of UUV (Counts 1 to 4), first-degree theft (Count 6), and first-degree criminal mischief (Count 7). The cases were tried together. The long and the short of it, defendant took a number of vehicles, mainly to cut them up for parts to sell. He also took a U-Haul van, which he used for hauling parts. On appeal, he contends that the trial court (1) plainly erred by failing to strike or otherwise address what defendant contends is vouching testimony; (2) plainly erred by not delivering concurrence instructions with respect to each count of UUV; (3) plainly erred by instructing the jury that it could return a nonunanimous verdict (the jury was not polled); (4) erred by failing to merge the guilty verdicts of UUV on Counts 1 and 2 in Case No. 18CR07290; (5) erred in denying defendants motion to suppress; and (6) erred in not excluding defendants text messages. We agree with defendant on the merger issue but otherwise affirm.
We start with the alleged vouching issue. The following exchange occurred as defense counsel cross-examined Detective Lowe, who investigated defendants crimes, about Nuroth, one of the witnesses against defendant:
“[DEFENSE COUNSEL:] What did you tell Mr. Nuroth about possible charges?
“[LOWE:] Im referring back to my report. Like I usually do, whats typical is I told him that if he cooperated, I could talk to the district attorney and let them know about his cooperation level. And honestly, I know Mr. Nuroth from the past, and hes always been halfway cooperative. And if hes in a rock and a hard place, hell pretty much tell you the truth.”
Defendant did not object to the detectives remark about Nuroth “pretty much” telling the truth when he has been between “a rock and a hard place,” and the trial court did not otherwise intervene. On appeal, defendant asserts that it is plain that Lowes testimony was prohibited vouching testimony, such that the trial court had the obligation to strike it absent an objection from defendant.
“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013). We disagree that Lowes testimony was so obviously impermissible vouching testimony that the trial court was required to intervene absent an objection. “ ‘Vouching’ refers to the expression of ones personal opinion about the credibility of a witness.” State v. Sperou, 365 Or. 121, 128, 442 P.3d 581 (2019). As the Supreme Court has recognized, “certain statements might be vouching in some contexts but not others.” Id. Here, in context, it is not plain that Lowes statement was vouching for Nuroths credibility with respect to either his testimony at trial or any out-of-court statements. For one, Lowes statements appear to refer to his past experience with Nuroth and do not plainly refer to anything Nuroth said about the instant case. Additionally, Lowes comment on Nuroth was qualified to the extent that it suggested that Nuroth in the past was “halfway cooperative,” and would “pretty much tell you the truth” when he was between “a rock and a hard place.” Given the qualified nature of the statement and its apparent reference to the past, it is not plain that the statement was impermissible vouching. The trial courts failure to address the statement on its own was not plain error.
In the second through sixth assignments of error, defendant contends that the trial court plainly erred in not delivering jury concurrence instructions with respect to the various counts of UUV. In defendants view, the prosecutions case on those counts both presented the jury with alternative factual occurrences for each count and alternative legal theories. Having considered the arguments on the point and the record, the alleged instructional errors are not obvious ones and, thus, as with the first assignment of error, any error is not plain.
In the seventh assignment of error, defendant contends that the trial court plainly erred in instructing the jury that it could return nonunanimous verdicts. The jury was not polled. Under these circumstances, although the trial courts instruction was erroneous, the error is not grounds for reversal for the reasons stated in State v. Dilallo, 367 Or. 340, 346-49, 478 P.3d 509 (2020).
Finally, in the eighth assignment of error, defendant contends that the trial court erred by not merging the guilty verdicts for UUV on Counts 1 and 2 in Case No. 18CR07290. Those counts were based on defendants conduct of taking a trailer and an ATV from All Seasons Equipment (All Seasons) during the same criminal episode. In a nutshell, the evidence at trial showed that defendant and an accomplice (1) took a Chevy Duramax truck from Competition Auto Sales, All Seasons’ neighboring business; (2) attached a chain to the truck and used it to pull down the gate to All Seasons’ parking lot; (3) attached All Seasons’ trailer to the Duramax; (4) drove an ATV belonging to All Seasons onto the trailer; and (5) left the premises with the trailer and the truck, which were ultimately found in different locations. Count 1 alleged that defendant committed UUV through his unlawful taking of the ATV; Count 2 alleged that defendant committed UUV through his unlawful taking of the trailer.
On appeal, defendant contends that the guilty verdicts should merge and that no provision of ORS 161.067 precludes merger. Defendant points out that there is no dispute that each UUV occurred during the same criminal episode and involved a violation of the same statutory provision, meaning that ORS 161.067(1) does not apply to preclude merger. See State v. Paye, 310 Or. App. 408, 420, 486 P.3d 808 (2021) (explaining when ORS 161.067(1) bars merger). Defendant next points out that each UUV count involved the same victim, All Seasons, meaning ORS 161.067(2) does not apply to preclude merger. See id. at 425, 486 P.3d 808 (explaining when ORS 161.067(2) bars merger). Finally, defendant argues that we should not address whether ORS 161.067(3) bars merger because, in defendants view, the state did not argue the point below, something that defendant contends would have allowed the record to develop differently.
In response, the state argues that ORS 161.067(3) bars merger because the record reflects that the UUV of the trailer and the UUV of the ATV were separated by a “sufficient pause in the defendants criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3). The state points out that the record demonstrates that defendant obtained the trailer from one portion of the All Seasons parking lot, attached it to the truck, drove it to a different portion of the parking lot, and then loaded the ATV onto it. Those circumstances, in the states view, gave defendant plenty of time to change his mind about whether to engage in the unauthorized use of the ATV in addition to his unauthorized use of the trailer.
As the parties appear to recognize, ORS 161.067(3) is the only provision of ORS 161.067 that plausibly operates to preclude merger on these facts; ORS 161.067(1) and (2) are plainly inapplicable, so we infer that the trial court relied on ORS 161.067(3) in declining to merge the guilty verdicts, although the court did not explain its ruling on the record. We conclude further that the court erred. This record does not support an inference that defendants unlawful use of the trailer is separated from his unlawful use of the ATV by a sufficient pause within the meaning of ORS 161.067(3).
A “sufficient pause” for purposes of ORS 161.067(3) means a “temporary or brief cessation of a defendants criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or. App. 177, 184, 227 P.3d 1206 (2010). The problem here is that the record evidences no cessation at all of defendants unlawful use of the trailer before defendant commenced the unlawful use of the ATV. Defendants unlawful use of the trailer was part and parcel with his unlawful use of the ATV; in a very short period of time, he used the trailer without authorization for the purpose of hauling off, also without authorization, the ATV. Although, as the state points out, defendant may have had time to change his mind about taking the ATV after he began his unlawful use of the trailer, that is not the question, or at least not the only question when it comes to evaluating whether there has been a sufficient pause for purposes of ORS 161.067(3). Under our case law, a defendants unlawful conduct must cease at least temporarily in order to give rise to a sufficient pause within the meaning of ORS 161.067(3). That did not happen here. We therefore must reverse and remand for merger of the guilty verdicts on Counts 1 and 2 and resentencing. We otherwise affirm.
In Case No. 18CR05809, affirmed. In Case No. 18CR07290, reversed and remanded for merger of the guilty verdicts on Counts 1 and 2; remanded for resentencing; otherwise affirmed.
LAGESEN, P. J.