498 P.3d 334
Or. Ct. App.2021Background:
- A jury convicted Mark Quandt of eight counts of first-degree sexual abuse; at sentencing the court merged some counts and entered judgment on five convictions.
- Quandt raised 12 assignments of error on appeal challenging evidentiary rulings, jury instructions, and merger decisions.
- Assignments 1–7 challenged admission of recorded statements by the investigating officer as impermissible vouching and unduly prejudicial under OEC 403.
- Assignment 8 challenged exclusion of Quandt’s statements that he was willing to take a polygraph under OEC 106 (rule of completeness).
- Assignments 9–10 challenged the sufficiency of the trial court’s OEC 403 balancing record; assignment 11 challenged the court’s instruction permitting and accepting nonunanimous verdicts for Counts 2 and 3; assignment 12 challenged failure to merge Counts 5 and 7.
- The appellate court affirmed most rulings, reversed and remanded Counts 2 and 3 for violation of the unanimity requirement, and remanded for resentencing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of officer’s recorded statements (1–7) | Statements admissible under State v. Chandler and after OEC 403 balancing | Statements were impermissible vouching and unduly prejudicial | Admission of the challenged statements was not erroneous; affirmed |
| Exclusion of defendant’s polygraph‑willingness statements (8) | Statements were not necessary under OEC 106 and not otherwise admissible | OEC 106 (rule of completeness) required admission to provide context | Exclusion affirmed; OEC 106 not an independent basis for admissibility |
| Sufficiency of OEC 403 balancing record (9–10) | Court made a sufficient record and applied Mayfield factors; struck many statements showing balancing | Record fails to show meaningful appellate review of OEC 403 balancing | Record was sufficient under Mayfield/Anderson; affirmed |
| Jury unanimity instruction and verdicts (11) | State followed existing state practice | Nonunanimous verdicts were allowed by state practice | Reversed Counts 2 and 3 in light of Ramos; verdicts must be unanimous; remanded |
| Merger of Counts 5 and 7 (12) | Evidence supported separate criminal episodes so no merger required | Counts arose from same episode and should merge | Trial court reasonably found separate episodes; non‑merger affirmed |
Key Cases Cited
- State v. Chandler, 360 Or. 323, 380 P.3d 932 (2016) (out‑of‑court statements about credibility may be admissible when offered for a relevant, non‑opinion purpose)
- State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987) (trial courts must balance OEC 403 considerations and make a sufficient record)
- State v. Anderson, 363 Or. 392, 423 P.3d 43 (2018) (clarifies what constitutes a sufficient OEC 403 balancing record)
- Ramos v. Louisiana, 590 U.S. _, 140 S. Ct. 1390 (2020) (Sixth Amendment requires unanimous jury verdicts to convict of serious offenses)
- State v. Smith, 300 Or. App. 485, 455 P.3d 520 (2019) (OEC 106 is not an independent basis for admissibility)