In this criminal appeal, a jury found defendant guilty of eight counts of first-degree sexual abuse. At sentencing, the court concluded that the verdicts on certain counts merged, and it entered a judgment convicting defendant of five counts. Defendant raises twelve assignments of error.
In defendants first through seventh assignments of error, he contends that the trial court erred in admitting as evidence certain statements by the investigating officer that were recorded while interviewing defendant. Defendant contends that the officers statements constituted impermissible vouching and were unduly prejudicial under OEC 403. The trial court excluded some of the officers statements on the ground that the statements constituted impermissible vouching but admitted other statements after concluding that they were admissible under State v. Chandler, 360 Or. 323, 380 P.3d 932 (2016) (“[A] court does not err in admitting an out-of-court statement as to the credibility of a witness or nonwitness complainant if the statement is offered for a relevant, non-opinion purpose.”) and conducting OEC 403 balancing. Having reviewed the record, the briefing, and the relevant legal authorities, we agree with the state that the trial court did not err in admitting the statements defendant challenges.
In defendants eighth assignment of error, he contends that the court erred in excluding statements that defendant made to the investigating officer that defendant was willing to take a polygraph test. Defendant maintains that the trial court was required to admit the statements under the so-called “rule of completeness,” OEC 106, which provides that, when part of a conversation is given in evidence by one party, the whole on the same subject, where otherwise admissible, may at the same time be inquired into, when it is necessary to make the admitted portion understandable. We conclude that defendants proffered evidence was not necessary to make “understood,” or to put into context, the states proffered evidence, and, further, defendant has not demonstrated that his statements were “otherwise admissible.” See State v. Smith, 300 Or. App. 485, 492, 455 P.3d 520 (2019), revd. on other grounds, 366 Or. 551, 466 P.3d 61 (2020) (OEC 106 not an independent basis of admissibility). Hence, the trial court did not err in excluding evidence of defendants statements involving his willingness to take a polygraph test.
In defendants ninth and tenth assignments of error, he contends that the court failed to make a sufficient record of its OEC 403 balancing and that the record is insufficient to allow meaningful appellate review. Defendant does not dispute that the court, in fact, engaged in balancing—only that it failed to demonstrate that it did so. The state responds that the court provided in writing its ruling and legal reasoning for each statement defendant had moved to strike. Further, that in response to defendants request for a sufficient record, the court explained that, for each statement, it had weighed the considerations discussed in State v. Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987), before ruling. The state contends that the court demonstrated that it properly weighed the evidence when it struck, under OEC 403, 62 of the 167 statements defendant had asked to exclude. See State v. Anderson, 363 Or. 392, 406, 423 P.3d 43 (2018) (“[A] court will make a sufficient record under Mayfield if the trial courts ruling, considered in light of the parties’ arguments, demonstrates that the court balanced the appropriate considerations.”). For the reasons outlined by the state, we agree that the trial court provided a sufficient record that it balanced the considerations in OEC 403. We thus reject defendants ninth and tenth assignments of error.
In defendants eleventh assignment, he contends that the court erred when it instructed the jury that it could return nonunanimous verdicts and when it accepted nonunanimous verdicts on Counts 2 and 3. Defendant is correct. The Sixth Amendment right to jury trial, as incorporated against the states by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020). Accordingly, we reverse and remand defendants conviction on Count 2. The guilty verdict for Count 3, which the trial court merged into Count 2 and therefore disposed of without a conviction, must also be reversed and remanded.
In defendants final assignment of error, he contends that the trial court erred in failing to merge the guilty verdicts on Counts 5 and 7. He contends that the record was insufficient as a matter of law to allow the trial court to determine that Count 5 arose from a different criminal episode as Count 7. Evidence in the record supported the trial courts determination that defendant committed the offenses during separate criminal episodes, thus the trial court did not err in declining to merge Counts 5 and 7.
Counts 2 and 3 reversed and remanded; remanded for resentencing; otherwise affirmed.
PER CURIAM