State v. Mathie

304 October 28, 2026 No. 1051 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. DAVID EDWARD MATHIE, Defendant-Appellant. Multnomah County Circuit Court 23CR56977; A185401 Rima I. Ghandour, Judge. Submitted September 24, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge. O’CONNOR, J. Convictions for first-degree bias crime (Count 1) and men- acing (Count 2) reversed and remanded for entry of a single conviction on Count 1 for first-degree bias crime; remanded for resentencing; otherwise affirmed. Nonprecedential Memo Op: 354 Or App 304 (2026) 305 O’CONNOR, J. Defendant appeals a judgment of conviction for first-degree bias crime, ORS 166.165 (Count 1); menacing, ORS 163.190 (Count 2); and recklessly endangering another person, ORS 163.195 (Count 3). Defendant raises four unpre- served assignments of error. We conclude that the trial court did not plainly err as alleged in assignments of error one, two, or three, and even if the trial court had plainly erred, we would not exercise our discretion to correct any error. We accept the state’s concession on the fourth assignment of error, and we exercise our discretion to correct it. We reverse and remand for merger of the guilty verdict on Count 2 with the verdict on Count 1 and for resentencing. First Assignment of Error. Defendant asserts that the trial court erred “when it admitted Officer Wesson- Mitchell’s testimony that defendant’s neighbors were ‘fear- ful’ and ‘afraid’ of defendant, had negative encounters with him, and did not want to talk to police because they ‘didn’t want his anger to be directed towards them’ and feared ‘ret- ribution.’ ” Defendant did not preserve the assignment of error, as he acknowledges. He argues that Wesson-Mitchell’s testimony was obviously hearsay, and that we should exer- cise our discretion to correct the error. Any error is not plain. See State v. Reyes-Camarena, 330 Or 431, 435, 7 P3d 522 (2000) (setting out requirements of plain error). It is not obvious and beyond reasonable dis- pute that Wesson-Mitchell’s testimony was inadmissible hearsay rather than admissible testimony based on Wesson- Mitchell’s conversations with defendant’s neighbors. See Butori v. Bosma, 348 Or App 278, 283, 588 P3d 972 (2026) (explaining that distinction). Even if the error were plain, we would not exercise our discretion to correct it. See State v. Ortiz, 372 Or 658, 666, 554 P3d 796 (2024) (discussing an appellate court’s discretion to reverse on plain-error review). Any error was not particularly grave, and defendant may not have objected because there appear to be relatively sim- ple ways that Wesson-Mitchell could have re-worded her testimony to avoid the claimed hearsay issues. Additionally, the claimed error likely could have been easily corrected 306 State v. Mathie had defendant objected, avoiding the need for a retrial. Id. at 676-77. Second and Third Assignments of Error. Defendant presents a combined argument in support of the second and third assignments of error and requests plain-error review of both assignments. In the second assignment of error, he alleges that “[t]he trial court erred when it allowed [the] state to elicit evidence that defendant unsuccessfully tried to procure the testimony and cooperation of many of his neighbors.” In the third assignment of error, defendant alleges that “[t]he trial court erred when it allowed the state to make propensity-based arguments based on defendant’s neighbors’ antipathy towards him.” Defendant called two neighbors as character witnesses and defendant also testi- fied in his own defense. He argues that portions of the pros- ecutor’s cross-examination elicited irrelevant evidence that also improperly encouraged the factfinder to draw negative inferences from defendant’s failure to present evidence. He argues that the state’s closing arguments that relied on that evidence were improper for the same reasons. The state responds that the prosecutor’s cross-examination and closing argument were not obviously improper and, even if errors are plain, we should not exercise our discretion to correct them. The errors are not plain. It is not obvious and beyond reasonable dispute that the state’s cross-examination about defendant’s unsuccessful attempts to persuade other neigh- bors to testify as character witnesses was irrelevant or improperly shifted the burden to defendant. The prosecu- tor’s closing argument was also not obviously improper. Fourth Assignment of Error. Defendant claims that “[t]he trial court erred when it failed to merge the findings of guilt on Count 2 (menacing) into the conviction for Count 1 (first-degree bias crime).” We accept the state’s concession that the trial court plainly erred. We exercise our discretion to reverse, and we remand for merger of Count 2 into Count 1 and for resentencing. First, the error is plain. An error is “plain” when it is an error of law, the legal point is obvious and not reasonably Nonprecedential Memo Op: 354 Or App 304 (2026) 307 in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). We review merger rulings for legal error. State v. Moore, 319 Or App 136, 144, 510 P3d 907, rev den, 370 Or 303 (2022). It is obvi- ous and beyond reasonable dispute that menacing merges into first-degree bias crime. The anti-merger statute, ORS 161.067, does not prevent merger because the menacing and first-degree bias crime offenses were committed during the same criminal episode and the elements of first-degree bias crime subsume the elements of menacing. See State v. Black, 320 Or App 263, 265-66, 512 P3d 866, rev den, 370 Or 455 (2022) (holding that a guilty verdict for menacing merges into a verdict for second-degree bias crime, ORS 166.155, which was called second-degree intimidation at the time of the opinion in Black). As charged in this case, the elements of first-degree bias crime also subsume the elements of men- acing under the same reasoning as in Black, as the state concedes. The error appears on the face of the record. We exercise our discretion to correct the error. The error is grave because it misstates defendant’s criminal history, which could have significant implications in future criminal history score calculations. State v. Thompson, 330 Or App 578, 585, 543 P3d 1250 (2024). The state does not have an interest in convicting defendant twice for the same crime even though it may have an interest in avoiding unnecessary proceedings on remand. Id. The ends of justice are served by ensuring that defendant’s criminal history is accurate. Id. Convictions for first-degree bias crime (Count 1) and menacing (Count 2) reversed and remanded for entry of a single conviction on Count 1 for first-degree bias crime; remanded for resentencing; otherwise affirmed.