STATE v. BAUGHMAN (2021)

This matter is on appeal for the second time. We affirm.

In defendant's first appeal, the case went to the Supreme Court which reversed and remanded, ruling that the trial court erroneously admitted other-acts evidence for the nonpropensity purposes identified by the trial court. State v. Baughman, 361 Or. 386, 410-11, 393 P.3d 1132 (2017). The court explained that the trial court's task on remand was to allow the state to make new arguments regarding admissibility under OEC 404 and 403, and to assess whether “a new trial may be required to allow the parties to make new arguments, and the court to give new instructions, to the jury.” Id. at 411, 393 P.3d 1132. On remand, the trial court followed the Supreme Court's directive, decided a new trial was not required, and reinstated the previous judgment.

Defendant appeals. He raises three assignments of error in his opening brief: (1) that the trial court abused its discretion by declining to grant a new trial; (2) that the trial court's balancing under OEC 403 was not adequate under State v. Mayfield, 302 Or. 631, 733 P.2d 438 (1987); and (3) that the trial court plainly erred by imposing a compensatory fine. He raises an additional assignment of error in a supplemental brief: that the trial court plainly erred by instructing the jury that it could return nonunanimous verdicts.

The state responds that (1) the arguments defendant makes regarding a new trial are unpreserved because his arguments to the trial court were different; (2) the court's OEC 403 balancing met the Mayfield standard as that standard has been clarified by State v. Anderson, 363 Or. 392, 423 P.3d 43 (2018); and (3) we should not exercise our discretion to correct any error in the imposition of the compensatory fine because defendant neither preserved the issue originally nor raised it with the trial court on remand, even though defendant raised the same assignment of error in his first appeal. As for the supplemental assignment of error, the state points out that it is unpreserved and that the jury was not polled, meaning that the Supreme Court's decision in State v. Dilallo, 367 Or. 340, 478 P.3d 509 (2020), should control.

We reject the first two assignments of error and the supplemental assignment of error for the reasons argued by the state. As for the third assignment of error, we decline to exercise our discretion to correct any error. In determining whether to exercise our discretion to correct an error alleged to be plain, we take into account whether granting relief would “subvert the comity considerations [between trial courts and the appellate court] that underlie the preservation requirement.” State v. Jury, 185 Or. App. 132, 140, 57 P.3d 970 (2002), rev. den., 335 Or. 504, 72 P.3d 636 (2003). Where, as here, a party has had two opportunities to bring an alleged error to a trial court's attention before raising it on appeal but availed themselves of neither, and where, as here, there has been no change in the law and there is no other circumstance that would have made it futile to raise the issue with the trial court on either occasion, it would subvert those comity considerations to exercise our discretion to correct the alleged error.

Affirmed.

PER CURIAM