Full Opinion

250 October 28, 2026 No. 1040 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. SHONG XIONG, Defendant-Appellant. Washington County Circuit Court 24CR05147; A184575 Oscar Garcia, Judge. Submitted May 21, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. ORTEGA, P. J. Affirmed. Nonprecedential Memo Op: 354 Or App 250 (2026) 251 ORTEGA, P. J. Defendant appeals from a judgment of conviction for one count of unlawful use of a weapon (Count 1) and one count of menacing (Count 2), raising five assignments of error. First, defendant contends that the trial court plainly erred when it admitted the recording of a conversation between defendant (whose primary language is Hmong) and a police officer making use of a telephonic interpreter, asserting that because an interpreter did not testify at trial, the recording was inadmissible hearsay. In her second and third assignments, defendant argues that the trial court abused its discretion by refusing to allow the court’s inter- preters to interpret at trial recorded statements by defen- dant and erred by excluding defendant’s recorded state- ments themselves. In her fourth and fifth assignments of error, defendant contends that the trial court plainly erred when it failed to give Uniform Criminal Jury Instructions (UCJI) 1002 and 1002A regarding the use of an interpreter. We conclude that the trial court did not plainly err in admit- ting the recorded interpretation of defendant’s statements to the police officer, that it did not err in declining defendant’s requests to make use of other recorded statements, and that it did not plainly err in failing to give the two instructions defendant raises for the first time on appeal. Therefore, we affirm. Hearsay Evidence. During an argument among her family, defendant pointed a kitchen knife at her son and ver- bally threatened to kill him. For that conduct, a jury con- victed her of one count of menacing and one count of unlaw- ful use of a weapon. On appeal, defendant argues that the trial court was plainly required to sua sponte exclude, as hearsay, a telephonic interpreter’s real-time interpretation of defen- dant’s statements to a police officer in an out-of-court con- versation with the officer. At trial, the court admitted a video recording from the officer’s body camera that captured that conversation, in which the officer used a real-time interpre- tation service on speaker phone to translate between the officer’s questions and defendant’s answers. Before admit- ting the video, the trial court asked if defendant objected, 252 State v. Xiong and she said no. Defendant also did not suggest at any point that any particular statements in that recording were inad- missible as hearsay or for any other reason. On appeal, defendant concedes that she did not pre- serve her assignment of error but argues that the trial court plainly erred because the real-time interpretation by the telephonic interpreter is inadmissible hearsay under OEC 802. The state contends that any error is not plain because the trial court had no duty to sua sponte intervene during the presentation of evidence by screening for and excluding hearsay evidence. We agree with the state that the trial court did not plainly err. “Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is plain if it is (1) an error of law, (2) the legal point is obvious and not reasonably in dispute, and (3) the error is apparent on the record with- out our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). If we con- clude that a trial court plainly erred, then we must decide whether to exercise our discretion to correct that error. State v. Ortiz, 372 Or 658, 671, 554 P3d 796 (2024). We review for legal error whether a statement constitutes inadmissible hearsay. State v. Rodriguez-Castillo, 345 Or 39, 46-49, 188 P3d 268 (2008). We have held that an “out-of-court translation of a non-English speaker’s statements to a third party consti- tutes hearsay because the interpreter’s translation consti- tutes an assertion of the English meaning of the original translation.” State v. Montoya-Franco, 250 Or App 665, 669, 282 P3d 939, rev den, 352 Or 666 (2012). Here, however, the video was offered and admitted as a whole, and defendant expressly affirmed that she did not have an objection to its admission. Defendant also did not raise any objections during the playing of the video. It is well established that, in a preserved posture, when evidence is offered as a whole and objected to as a whole, “the trial court will ordinarily not be reversed on appeal if any portion of the evidence was prop- erly admissible, despite the fact that other portions would Nonprecedential Memo Op: 354 Or App 250 (2026) 253 not have been admissible had proper objections been made to such portions of the offered evidence.” State v. Brown, 310 Or 347, 359, 800 P2d 259 (1990) (quoting Sproul v. Fossi, 274 Or 749, 755, 548 P2d 970 (1976). Here, there is no dis- pute that defendant’s statements and the testifying officer’s statements in the video were admissible. The trial court was not required to intervene during the playing of the video to sua sponte exclude those portions of the video containing the out-of-court translation in the absence of an objection to those specific statements. Thus, the trial court did not plainly err in admitting the video, and we reject defendant’s first assignment of error. Interpretation of Recorded Statements at Trial. At trial during defendant’s direct examination, defendant sought to admit a cellphone recording of an out-of-court conversation she held with other family members in the aftermath of the incident at issue. In addition, she proposed having the recording, which was in defendant’s primary language of Hmong, interpreted by the court interpreter while it was played for the jury. The recording had not been officially interpreted prior to trial. Defendant argued that the recording was admissible to impeach the testimony of her daughter-in-law because it contradicted that testimony. The trial court did not admit the recording and declined to allow the court interpreter to interpret it. On appeal, defendant makes a combined argument for her second and third assignments of error, challenging the trial court’s refusal to allow the court’s interpreters to interpret defendant’s recorded statements at trial and its exclusion of the recorded statements themselves. We review a trial court’s control over the mode and order of interro- gating witnesses for abuse of discretion. Howell-Hooyman and Hooyman, 113 Or App 548, 551, 833 P2d 328 (1992). We review for legal error whether particular evidence creates a sufficiently non-collateral contradiction to be admissible for impeachment by contradiction. See State v. Stapp, 266 Or App 625, 629, 338 P3d 772 (2014) (reviewing for legal error whether proposed impeachment evidence was in fact con- tradictory to a witness’s testimony); State v. Jamies-Pineda, 271 Or App 75, 79-80, 350 P3d, 464 (2015) (reviewing for 254 State v. Xiong legal error whether any contradiction between a witness’s testimony and proposed impeachment evidence was too col- lateral to be the subject of proper impeachment). Defendant and the state agree that she sought to use the recording for impeachment by contradiction. When a party seeks to impeach a witness, they can do so by con- tradicting the witness’s testimony. See State v. Gibson, 338 Or 560, 572-73, 113 P3d 423, cert den, 546 US 1044 (2005) (discussing impeachment by contradiction). A “precise state- ment of fact” is only susceptible to impeachment by contra- diction with evidence that contradicts that same precise fact. Stapp, 266 Or App at 630. We have reviewed the record and agree with the state that the proposed impeachment evidence, as repre- sented, was not sufficiently contradictory to impeach the witness’s testimony. Defendant’s offer of proof was lim- ited to defense counsel’s representation that the recording included defendant “denying threatening her son and deny- ing grabbing a knife.” In defendant’s view, the recording contradicted the testimony of her daughter-in-law denying that defendant said those things. However, in the testimony at issue, the witness denied that defendant had said that she was holding a knife because she was cooking, which is a different fact. As a result, the proposed evidence would not have been contradictory enough to be used to impeach the witness’s testimony. See Stapp, 266 Or App at 629 (con- cluding that evidence that the defendant had “threatened” someone with a knife was not relevant to impeach his testi- mony that he had not “stabbed” anyone). Thus, we conclude that the recording was not admissible for the stated purpose of impeachment by contradiction, and the trial court did not err. Because the trial court did not err in excluding the recording for impeachment purposes, we need not address whether the court erred in refusing to allow the court inter- preter to interpret the recording. We thus reject defendant’s second and third assignments of error. Jury Instructions. In her fourth and fifth assign- ments of error, defendant contends that the trial court was required to give uniform jury instructions regarding interpreters. Defendant did not preserve her argument Nonprecedential Memo Op: 354 Or App 250 (2026) 255 and therefore asks us to review for plain error. See State v. Horton, 327 Or App 256, 258, 535 P3d 338 (2023) (an error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without this court having to choose among com- peting inferences). We review a trial court’s jury instruc- tions for legal error. State v. Crosby, 342 Or 419, 427, 154 P3d 97 (2007). Defendant contends that the trial court was required to provide the jury with two uniform instructions regarding the use of an interpreter. Specifically, defendant argues that the trial court was required to instruct the jury that defendant had a right to an interpreter and that the jury could not draw negative inferences against defendant based on her use of an interpreter, UCJI 1002 and 1002 A. In response, the state argues that it is reasonably in dispute whether trial courts must give those instructions when- ever a defendant relies on an interpreter in the absence of a request by any party. We agree with the state. Generally, “a party’s failure to request a proper instruction precludes appellate relief for the trial court’s refusal to give the instruction.” Brown, 310 Or at 355. Defendant does not point to any authority requiring a trial court to give UCJI 1002 and 1002A whenever an inter- preter is used at trial in the absence of a request by parties. Therefore, the trial court did not plainly err in failing to give those instructions. Affirmed.