State v. Fusitua

• Decision Date: 12 October 2022
• Docket Number: A175529,A175530
• Citation: 322 Or.App. 360
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. SEMISI TOLOKANA FUSITUA, Defendant-Appellant.
• Court: Oregon Court of Appeals

322 Or.App. 360

STATE OF OREGON, Plaintiff-Respondent, v. SEMISI TOLOKANA FUSITUA, Defendant-Appellant.

A175529, A175530

Court of Appeals of Oregon

October 12, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted September 14, 2022

Washington County Circuit Court 20CR62040, 20CN04761; Andrew Erwin, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Bruce A. Myers, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

In this consolidated appeal, defendant appeals a judgment of conviction for one count of second-degree criminal mischief ORS 164.354, raising three assignments of error.^[1] In his first assignment of error, he contends that the trial court erred when it "barred defendant from eliciting lay-witness-testimony about his mental illness." In his second assignment of error, he contends that the trial court erred when it "failed to instruct the jury that it must concur on which factual occurrence supported its verdict." In his third assignment of error, he contends that the trial court erred when it "did not require the state to elect which factual occurrence it relied on to support defendant's criminal mischief in the second-degree charge." We affirm.

Regarding defendant's first assignment of error, assuming the trial court erred in excluding the testimony of defendant's mother and brother concerning defendant's mental health defendant failed to make an offer of proof, which precludes us from determining "whether any error in excluding the testimony was prejudicial." State v. Krieger, 291 Or.App. 450, 451, 422 P.3d 300, rev den, 363 Or 599 (2018).

Moreover the trial court did not abuse its discretion under OEC 403 in determining that, with regard to evidence that an officer had called a mental health response team regarding defendant, the danger of unfair prejudice substantially outweighed the probative value. OEC 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ***."); State v. Altabef, 313 Or.App. 240, 245, 493 P.3d 1099 (2021) ("We review a trial court's balancing under OEC 403 for an abuse of discretion and generally defer to the trial court's decision whether the probative value of the evidence is substantially outweighed by the potential for prejudice." (Brackets and internal quotation marks omitted.)). Given the evidence that the trial court did allow, it...