S058390, Opinion — State v. Serrano

172
Argued and submitted September 20, 2013, judgment of conviction and sentence
of death affirmed April 17, 2014
STATE OF OREGON,
Respondent,
v.
RICARDO SERRANO,
Appellant.
(CC C063227CR; SC S058390)
324 P3d 1274
On automatic and direct review of the judgment of conviction and sentence
of death following defendant’s conviction on 10 counts of aggravated murder,
defendant raised 30 assignments of error. Among other assignments, defendant
asserted that the trial court had plainly erred by failing to acquit him on three
counts of aggravated felony murder. Defendant asserted that the evidence was
insufficient to show that he had committed the murders in the course of and
in the furtherance of the underlying crime, that is, burglary-theft. Defendant
acknowledged that he had failed to make that argument before the trial court.
Defendant also argued that the sentence of death should be reversed because the
trial court failed to strike testimony during the penalty phase that pertained to
racially organized gangs inside Oregon prisons. Held: Defendant failed to pre-
serve his assignment of error regarding the sufficiency of the evidence support-
ing the convictions for aggravated felony-murder, and the trial court’s failure to
acquit defendant for the reasons asserted on review was not error apparent on
the face of the record. The court also rejected defendant’s argument that the trial
court had been obligated to strike testimony pertaining to prison gangs during
the penalty phase because defendant had not objected to that testimony, and
because the testimony was not so inflammatory as to have denied defendant a
fair penalty-phase hearing.
The judgment of conviction and sentence of death are affirmed.
En Banc
On automatic and direct review of the judgment of con-
viction and sentence of death imposed by the Washington
County Circuit Court.
Steven L. Price, Judge.
Meredith Allen, Senior Deputy Public Defender, argued
the cause for appellant. With her on the briefs was Peter
Gartlan, Chief Defender, Office of Public Defense Services,
Salem.

Cite as 355 Or 172 (2014) 	173
Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. With her on the brief were Ellen
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Timothy A. Sylwester and Andrew M. Lavin,
Assistant Attorneys General, Salem.
BREWER, J.
The judgment of conviction and the sentence of death are
affirmed.

174 	State v. Serrano
BREWER, J.
This case is before this court on automatic and
direct review of defendant’s judgment of conviction and sen-
tence of death for multiple counts of aggravated murder.
ORS 163.095; ORS 138.012. For the reasons set out below,
we affirm the judgment of conviction and sentence of death.
I. 	FACTS
Because the jury found defendant guilty, we set out
the facts in the light most favorable to the state. State v.
Longo, 341 Or 580, 582, 148 P3d 892 (2006). Defendant was
married to Melinda. After she discovered that defendant
was having an affair with another woman, Melinda decided
to end their marriage. Around that time, Melinda became
romantically involved with a coworker, Nguyen, who lived
with Melody Dang and her two sons, Steven and Jimmy.
Melody was aware of Nguyen’s relationship with Melinda.
During their relationship, Nguyen taught Melinda
various phrases in Vietnamese, which Melinda wrote down
in a check register. Melinda kept the check register in her
vehicle, to which defendant did not have a key. In July 2006,
Melinda discovered that she was pregnant. She believed
that Nguyen was the father. In September, Melinda left
defendant and moved into her sister’s apartment. When that
living arrangement failed to work out, Melinda moved back
in with defendant.
As those events were unfolding, defendant became
acquainted with two sisters, Madriz-Mendoza and Miranda-
Mendoza. 	Miranda-Mendoza 	worked 	with 	Melinda 	and
Nguyen, but she did not know that Melinda was married
to defendant. Defendant asked Miranda-Mendoza ques-
tions about her coworkers, including what they looked like,
whether any of the women were pregnant, and whether she
knew a curly-haired man named “Mike.” On one occasion,
as Melinda was leaving work, she stopped to talk with a
group of fellow workers—including Nguyen, who was the
only person in the group with curly hair. Defendant drove
up and angrily told Melinda that she was disrespecting him
by talking to the group.

Cite as 355 Or 172 (2014) 	175
On the evening of November 2, 2006, Melody, Steven,
and Jimmy were at Nguyen’s house. Nguyen was at work, as
was Melinda. Melody and Nguyen had a phone conversation
at about 8:30 p.m. Melody sometimes visited Vietnamese-
language internet chat-rooms and often had phone conver-
sations with men whom she had met in those chat-rooms.
At about 9:00 p.m., Melody called Tran, a Florida resident
whom she had met online. As they were talking, Tran heard
dogs barking in the background and heard Melody yell, “Oh
my God, Oh my God.” Then the call was disconnected. When
Tran called back, there was no answer; he then sent text
messages to Melody, but there was no reply.
The next morning, Nguyen returned home from
work. The lights were on, and his dogs were barking.
Nguyen entered the house through the garage and saw that
the house was messy. Then he saw Melody’s body in the hall-
way. Steven was lying next to her. Their bodies were cold.
Nguyen then called 9-1-1. The police arrived within min-
utes. They observed Melody and Steven lying in the hallway,
and they found Jimmy inside a bathroom off the hallway. All
three victims had been shot to death.
Three additional noteworthy discoveries were made
at the scene. First, when he looked around the living room,
Nguyen noticed that a laptop computer was missing. Second,
the investigating officers recovered two spent .380 caliber
shell casings near the victims’ bodies, along with a live .380
caliber cartridge. Third, there was blood on the hallway
floor where the victims were found. Using a chemical test,
the officers found shoe impressions in the blood.
Melinda returned to defendant’s house that same
morning after her work shift. Defendant was not home
and his vehicle was gone. Later that same day, Melinda
saw defendant’s vehicle parked down the street. Defendant
returned home at 4:00 p.m. He told Melinda that he had not
gone to work that day, but he did not appear to be ill.
On November 27, police officers searched defen-
dant’s brother’s house. The officers found two handguns,
one a .380 caliber pistol. They also found several magazines
for a .380 caliber pistol, along with boxes of .380-caliber

176 	State v. Serrano
ammunition. The .380 pistol was later tested by an Oregon
State Police firearms examiner. It appeared to have been
recently cleaned. The examiner test-fired the pistol and
compared the markings on the test bullets to the markings
on the bullets recovered from the crime scene. The mark-
ings matched. The examiner concluded that the pistol seized
from defendant’s brother’s house had fired the bullets found
at the crime scene.
On November 28, police officers executed a search
warrant at defendant’s residence. Among other items, they
found defendant’s shoes and, in the back of his vehicle, a
partially-full bottle of bleach. The shoes were later tested for
blood. None was found, but the shoes appeared to have been
recently washed. The officers also found Melinda’s check
register with the Vietnamese phrases written inside, and
they found a key that fit the ignition of Melinda’s vehicle.
Defendant was arrested the same day. Later, prior to trial,
the state compared the shoe impressions found at the crime
scene to the tread of defendant’s shoes. The impressions
matched defendant’s right shoe.
Melinda moved out of defendant’s house after the
search and his arrest. From time to time, she returned to
retrieve belongings but, in the meantime, she left the house
unlocked. On January 3, 2007, an employee of a property
management company cleaned the garage. Underneath a
couch, the cleaner found a laptop computer wrapped in a
towel inside a garbage bag. When the computer was shown
to him, Nguyen recognized that it was similar to the com-
puter that was missing from his living room.
Defendant was indicted on 10 counts of aggravated
murder. In counts 1, 2, and 7, which charged defendant with
the murder of Melody Dang, the indictment alleged that
defendant had murdered her in the course of the same crim-
inal episode that resulted in the death of Steven (count 1);
that he had murdered her in the course of the same criminal
episode that resulted in the death of Jimmy (count 2); and
that he had murdered her in the course of and in further-
ance of his commission of first-degree burglary (count 7),
ORS 163.095(2)(d); ORS 163.115(1)(b). The counts pertain-
ing to Steven Dang (counts 3, 4, and 8) and Jimmy Dang

Cite as 355 Or 172 (2014) 	177
(counts 5, 6, 9, and 10) were charged in the same manner,
except for count 10, which alleged that defendant had mur-
dered Jimmy, who was a person under the age of 14. ORS
163.095(1)(f). A jury found defendant guilty on all counts.
In a separate proceeding, the jury answered the relevant
death penalty questions, ORS 163.150, in the affirmative.
The trial court merged the convictions into three and sen-
tenced defendant to death.
Defendant now raises 30 assignments of error. We
have examined each of those assignments of error, and we
reject each one. Eight of the assignments merit discussion,
and we now turn to them.
II. 	GUILT PHASE
A. 	Motions for Judgments of Acquittal on Felony Aggravated
Murder Counts
As noted, in counts 7, 8, and 9, defendant was con-
victed of three counts of aggravated felony-murder. ORS
163.095(2)(d); ORS 163.115(1)(b). The indictment alleged
as to each of those three counts that the underlying felony
was first-degree burglary. A person commits first-degree
burglary when he or she “enters or remains unlawfully” in
a dwelling “with the intent to commit a crime therein.” See
ORS 164.225; ORS 164.215. The indictment did not specifi-
cally identify the underlying crime that defendant intended
to commit when he entered the Nguyen/Dang residence.
However, the trial court instructed the jury that, to find
that defendant had committed first-degree burglary, it must
find beyond a reasonable doubt that he had entered the res-
idence with the intent to commit theft therein.
In his third assignment of error, defendant asserts
that the trial court erred in denying his motions for judg-
ments of acquittal on the three aggravated felony-murder
counts. In support of those motions, defendant had argued to
the trial court only that the identified counts required proof
that he was “personally involved” in the murders. Before
this court, however, defendant does not renew that argu-
ment. Instead, defendant asserts that the trial court erred
in denying the motions because the state “failed to prove a
sufficient causal connection between the homicides and the

178 	State v. Serrano
burglary-theft” of the laptop computer. In short, by focusing
on the causal relationship between the homicides and the
burglary based on theft of the computer, defendant’s argu-
ment on review has a fundamentally different focus from
his argument at trial. Because the trial court was never
presented with the argument for acquittal that defendant
advances on review, defendant’s third assignment of error
is unpreserved. See State v. Walker, 350 Or 540, 548, 258
P3d 1228 (2011) (preservation rule exists, in part, to ensure
that the trial court had an opportunity to avoid ruling in
error). Defendant concedes as much, but he urges this court
to review his third assignment as plain error.
Defendant notes that this court previously has
held that, to prove aggravated felony-murder under ORS
163.095(2)(d) and ORS 163.115(1)(b), the state must estab-
lish a “causal connection” between the underlying felony
and the homicide to show that the homicide occurred “in
the course of and in furtherance of” the underlying felony.
According to defendant, “a homicide committed before the
perpetrator forms an intent to commit a felony can rarely,
if ever, be [felony murder].” Instead, defendant argues, ORS
163.115(1)(b) requires a person either to commit—or form
the intent to commit—the underlying felony before he or she
commits the murder. Defendant also argues that, to estab-
lish the necessary causal connection, “the deaths must have
been a foreseeable risk associated with the commission of
the felony.”
With respect to the sufficiency of the evidence to
satisfy those posited requirements in this case, defendant
asserts:
“[T]he evidence is insufficient to conclude that defendant
committed the homicide ‘in the course of and in further-
ance of’ the burglary-theft as charged in this case. The
state presented evidence that defendant committed first-
degree burglary-theft only after he had caused the Dangs’
deaths; therefore, the state failed to prove the required
causal connection between the two crimes.”
Defendant contends that the state’s evidence in this case
established, at most, that he had entered Nguyen’s resi-
dence “with the sole intent to shoot one or more of the three

Cite as 355 Or 172 (2014) 	179
victims” and, thus, the evidence could not support a “reason-
able inference that one of defendant’s reasons for causing the
victims’ deaths was to obtain property, a motivation that if
proved, would provide the necessary causal link.” Defendant
urges that “the evidence support[ed] only a single reason-
able inference regarding the timing of events: defendant
did not commit the first-degree burglary-theft until after he
committed the three homicides.” (Emphasis in original.)
The state responds that the trial court did not
plainly err because none of defendant’s unpreserved argu-
ments is obvious or beyond dispute. In the alternative, the
state argues that, even if this court were to adopt one of
defendant’s proposed constructions of ORS 163.115(1)(b),
the evidence was sufficient to permit a reasonable juror to
find that defendant had formed the intent to steal the laptop
before he murdered the Dang family.
Generally speaking, “[n]o matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court.” ORAP 5.45(1). The principal
exception to the preservation requirement involves “so-called
‘plain error’—that is, an error apparent on the record about
which there is no reasonable dispute.” Peeples v. Lampert,
345 Or 209, 219, 191 P3d 637 (2008). To qualify as “plain
error,” an asserted error must be (1) one of “law”; (2) it must
be “apparent, i.e., the point must be obvious, not reason-
ably in dispute”; and (3) “it must appear ‘on the face of the
record,’ i.e., the reviewing court must not need to go outside
the record to identify the error or choose between competing
inferences, and the facts constituting the error must be irre-
futable.” Ailes v. Portland Meadows Inc., 312 Or 376, 381-
82, 823 P2d 956 (1991) (quoting State v. Brown, 310 Or 347,
355-56, 800 P2d 259 (1990)). If each of those requirements
is satisfied, the court proceeds to the second step, where it
must decide whether to “exercise its discretion to consider or
not to consider the error[.]” Ailes, 312 Or at 382.
With respect to the obviousness requirement, defen-
dant must demonstrate both that (1) the legal principles on
which he relies are “obvious” and beyond reasonable dispute
and (2), applying those “obvious” legal principles to the evi-
dence in the record, the state’s proof was legally insufficient.

180 	State v. Serrano
See, e.g., Brown, 310 Or at 355-56. As we now explain, the
legal points on which defendant relies are not obvious or
beyond dispute; accordingly, it is not necessary to determine
whether the state’s proof was sufficient to satisfy them.
For the purposes of its incorporation into ORS
163.095(2)(d) (the aggravated murder statute at issue), ORS
163.115(1)(b) provides, in part:
“(1) 	Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
“* * * * *
“(b) 	When it is committed by a person * * * who com-
mits or attempts to commit any of the following crimes and
in the course of and in furtherance of the crime the person is
committing or attempting to commit, or during the imme-
diate flight therefrom, the person * * * causes the death of a
person other than one of the participants:
“* * * * *
“(C) 	Burglary in the first degree as defined in ORS
164.225[.]”
(Emphasis added.) To establish that a homicide was com-
mitted “in the course of and in furtherance” of the underly-
ing crime, ORS 163.115(1)(b), the state must prove a “causal
connection” between that crime and the homicide. State v.
Lopez-Minjarez, 350 Or 576, 590, 260 P3d 439 (2011); State
v. Rose, 311 Or 274, 285, 810 P2d 839 (1991).
As noted, defendant asserts that that requirement
necessarily means that a defendant must either commit,
or form the intent to commit, the underlying crime before
committing murder. In support of that argument, defendant
relies on this court’s statement in Rose that “[s]omething
more than a mere coincidence of time and place * * * is nec-
essary to show that the homicide occurred ‘in the course
of and in furtherance of’ the felony. There must have been
some causal relationship between the [felony] and the homi-
cide.” Rose, 311 Or at 285. However, defendant takes that
statement out of context. A more complete quotation follows:
“The relevant question is not whether the victim’s death
preceded, occurred during, or followed the [underlying felony],

Cite as 355 Or 172 (2014) 	181
but whether the [felony] and the defendant’s acts that
caused the victim’s death are so related in time, place, and
circumstances that the trier of fact could find beyond a rea-
sonable doubt that the homicide occurred ‘in the course of
and in furtherance of’ the [felony]. Something more than a
mere coincidence of time and place, however, is necessary
to show that the homicide occurred ‘in the course of and
in furtherance of’ the felony. There must have been some
causal relationship between the [felony] and the homicide.”
Id. (citations omitted; emphasis added). As the full quo-
tation above demonstrates, this court’s decision in Rose is
inconsistent with defendant’s argument that commission
of an underlying felony must precede the victim’s death.
Accordingly, defendant has furnished no basis for us to con-
clude that the trial court erred in failing to acquit him on
that ground, much less for us to conclude that the court obvi-
ously erred in failing to do so.
With respect to defendant’s alternative argument
that, to be guilty of felony murder, a defendant must have
formed the intent to commit an underlying felony before com-
mitting the murder, the answer is less clear-cut. Although
Rose confirms that a “causal relationship” between the
two crimes is required, this court has never elaborated on
the scope and dimensions of that requirement. In Lopez-
Minjarez, this court described the “in the course and fur-
therance of” requirement of ORS 163.115(1)(b) as follows:
“The requirement that the homicide be in the course and
furtherance of the predicate felony is a familiar concept from
the common-law crime of felony murder. As one authority
describes it,
“ ‘whether there is a sufficient causal connection between
the felony and the homicide depends on whether the
defendant’s felony dictated his [or a co participant’s]
conduct which led to the homicide. If it did, and the mat-
ters of time and place are not too remote, the homicide
may be ‘in the commission of’ the felony; but if it did not,
it may not be.’
“Wayne R. LaFave, 2 Substantive Criminal Law § 14.5(f),
466 (2d ed 2003); see generally State v. Rose, 311 Or 274, 285,
810 P2d 839 (1991) (‘Something more than a mere coinci-
dence of time and place, however, is necessary to show that

182 	State v. Serrano
the homicide occurred “in the course of and in furtherance
of” the felony. There must have been some causal relation-
ship between the robbery and the homicide.’).”
350 Or at 589-90.
The issue in Lopez-Minjarez was whether the defen-
dant had withdrawn from participation in a predicate fel-
ony (kidnapping) that admittedly was initiated before the
charged homicide was committed. Id. at 590-91. Accordingly,
it was not necessary for the court to consider the issue that
defendant raises here. Moreover, among courts that have
directly considered the issue in interpreting similar statu-
tory language, there is a split of authority as to whether
it is necessary that the defendant have intended to com-
mit an underlying felony before committing a homicide.
See LaFave, 2 Substantive Criminal Law § 14.5(f) at 468
n 119 (noting division among courts and collecting cases).
It may be, as Professor La Fave suggests, that “[i]t would
seem that the homicide, done without thought of a felony,
could not be ‘in the commission of’ the felony.” Id. at 468.
However, this court has never had that issue before it for
resolution. Accordingly, defendant has not demonstrated the
obviousness of the posited unpreserved error. See, e.g., State
v. Reyes-Camarena, 330 Or 431, 436, 7 P3d 522 (2000) (legal
point on which defendant relied was not “obvious,” because
“[n]o Oregon appellate court [had] considered the issue, let
alone held that [the] defendant’s position [was] correct.”).
We therefore reject that aspect of his plain error argument.
As noted, defendant also asserts that the trial court
erred in denying his motion for judgment of acquittal because
the victims’ deaths were not a “foreseeable result” of his act
of burglary. In support of the “foreseeable result” aspect of
his argument, defendant relies on Professor LaFave’s state-
ment that, “[i]n most jurisdictions even more than a but-for
causal relationship is required, the usual rule being that
the death must be the foreseeable or natural result of the
felony.” LaFave, 2 Substantive Criminal Law at 465.1 Again,
1 Defendant does not argue that the state’s evidence in this case was insuf-
ficient to establish a “but for” causal connection between the homicides and the
underlying felony or, for that matter, that that is a pertinent test for determining
whether a homicide was committed in the course of and in furtherance of a felony.

Cite as 355 Or 172 (2014) 	183
defendant concedes that he did not preserve that aspect of
his argument. Accordingly, its success depends on his ability
to establish that the trial court plainly erred and, if so, that
we should exercise our discretion to correct the error.
At oral argument, defendant elaborated on that
aspect of his argument, asserting that the “causal connec-
tion” requirement meant that the death had to be the “fore-
seeable, natural result” of the felony and “that the felony
leads to the homicide, not the other way around.” Apart
from arguable implications flowing from the above-quoted
statements in Rose and Lopez-Minjarez, this court has not
discussed the “foreseeable result” test for which defendant
advocates, nor has this court explored its contours. However,
for present purposes, two responses suffice. First, the prin-
cipal purpose of that construct is to address the dilemma of
unintended or coincidental killings committed by the defen-
dant or another person in the course of the commission of a
predicate felony. See LaFave, 2 Substantive Criminal Law
at 452-59. Defendant has not explained how it pertains to
the evidence in this case, where the state theorized that
defendant personally and intentionally killed the victims in
the course of the burglary based on theft, and defendant did
not theorize that he or anyone else had unintentionally or
coincidentally done so. Second, courts that have adopted a
“foreseeable result” test have wrestled at length with ques-
tions involving the necessary degree of causal relationship
in time, place, and circumstance between an underlying fel-
ony and the homicide. See id. However, this court has not
adopted that test in any governing precedent and, even if
it had, how those considerations would play out based on
the record in this case is not obvious. Accordingly, the trial
court did not plainly err in failing sua sponte to direct defen-
dant’s acquittal based on that ground.
B. 	Challenge to the Trial Court’s Answers to the Jury’s
Questions
Defendant’s fourth and fifth assignments of error
focus on another aspect of the trial of the three aggravated
felony-murder charges on which he was convicted. In those
assignments of error, defendant asserts that the trial court
erred by instructing the jury, in response to two questions

184 	State v. Serrano
that it asked during deliberations, that “in furtherance of
the crime of burglary means during the effort to commit the
burglary.”
During its deliberations, the jury posed to the court
a series of written questions. The court’s answers to two of
those questions are at issue here. In the first question, the
jury asked:
“Need clarification. ‘In furtherance of the crime of bur-
glary…’ We’ve read this 10 times. Does this imply that the
murders ‘resulted from the crime of burglary?’ Count 7 4(a)
and Count 9 4(a).”
(Underscoring in original.) The trial court replied with a
written answer:
“You ask if ‘in furtherance of the crime of burglary’ in
elements 4(a) of counts 7, 8, and 9 requires that the mur-
ders ‘resulted from the crime of burglary?’ In this instance,
‘in furtherance of the crime of burglary’ means during the
effort to commit the burglary.”
The record shows that, before answering that question, the
court consulted with the parties, and defendant ultimately
agreed with the answers that the court gave. As the court
explained on the record:
“[T]hey had a question regarding in furtherance of the
crime of burglary and, after some discussion, a bit of a com-
promise from both sides, both sides agreed on the answer
that I gave.”
The court then alluded to a second question:
“And then we have another question pending, but it’s
almost five o’clock, so I’m going to let them go and I’ve got a
proposed answer to give to you, but I’d rather let them out,
let them go and then we can talk if we have to talk.”
The court recessed for the day and told the parties:
“And, counsel, I gave you those answers. As far as I’m
concerned we can go into recess, we can go back into cham-
bers and discuss that and let everybody else get on about
their business if that’s okay with you.”
The parties agreed, and the court and counsel then retired
to chambers to discuss the jury’s second question, which
asked:

Cite as 355 Or 172 (2014) 	185
“Seeking clarification on the definition of the elements:
Is the sequence of crimes relevant in aggravated murder—
felony murder and felony murder?”
The next morning, the trial court gave the following
written answer to that question to the jury:
“You ask if the sequence of crimes is relevant in
Aggravated Murder—Felony Murder and Felony Murder.
“I suspect that this concern is related to your last few
questions. The answer lies in elements 4(a) and 4(b) of
those crimes. ‘Sequence’ in the sense of which crime started
first is not an element of the offenses. However, the causing
of death must have occurred during the effort to commit
the burglary—4(a)—or during immediate flight from the
burglary—4(b).”2
After giving that answer, the court recounted on the record
the process that had led to its crafting and submission:
“[W]e had a question that came out. I consulted with
counsel for both sides on the—on the answer, the answer
was agreed upon and you’ve got your copies of the questions
and the answer.
“[The Prosecutor]: 	And—and, your honor, if—if I might,
I’d like to note for the record that there was a question at
the end of the day yesterday. The court had a proposal,
the parties met in chambers to discuss it and the parties
agreed with the ultimate answer that was submitted to the
jury this morning on the last question of the day yesterday.
Both sides agreed with it.
2 The court had previously instructed the jury that the elements 4(a) and
4(b) of aggravated felony-murder were:
“In this case to establish the crime of aggravated felony murder the state
must prove beyond a reasonable doubt the following four elements * * * four,
(a) in the course of and in furtherance of the crime of burglary in the first
degree which [defendant] was committing, [defendant] personally and inten-
tionally caused the death of [the victim] who is not a participant to the crime;
or (b) during the immediate flight from the crime of burglary in the first
degree which [defendant] was committing, [defendant] personally and inten-
tionally caused the death of [the victim] who was not a participant in the
crime.”
The court gave the same instruction with respect to the felony-murder counts
involving all three victims. That instruction was based on Uniform Criminal
Jury Instruction 1302. Defendant did not object to the giving of that instruction,
and he does not assert before this court that it was erroneous.

186 	State v. Serrano
“[The Court]: 	That’s—
“[Defense Counsel]: 	Correct.
“[The Court]—Correct as well. Thank you for remind-
ing me to put that—get that on the record.”
In separate assignments of error, defendant now
challenges the trial court’s answers to the two questions
that the jury asked. In particular, defendant asserts that
the use of the word “during” in both answers essentially
instructed the jury that it was not required to find a causal
connection between the felony and the homicides to convict
defendant of the felony murder charges. Instead, defendant
argues, the use of that word permitted the jury to convict
him based solely on a temporal overlap between the commis-
sion of the burglary and the murders. Defendant concedes
that he failed to preserve that argument before the trial
court. However, defendant asserts that it is obvious that
ORS 163.115(1)(b) requires a causal connection between the
two crimes; he further reasons that, because the court did
not inform the jury that it was required to find such a causal
connection, the answers that the court gave were plainly
erroneous. At oral argument, defendant’s counsel ampli-
fied that argument, asserting that, whatever the nature of
the causal connection required by ORS 163.115(1)(b), the
trial court’s answers were plainly erroneous because those
answers “completely omitted it.”
Defendant also contends that the asserted error
requires reversal because the court’s answers prejudiced
him. Defendant explains:
“Here, if the jury believed that defendant’s theft of the
laptop was a mere afterthought and therefore not caus-
ally connected to the homicides, it still could have found
defendant guilty of aggravated felony murder based on the
trial court’s erroneous instructions because it could have
found that defendant committed the homicides during his
commission or immediate flight from the burglary-theft. In
that way, the trial court’s erroneous definition of ‘in the fur-
therance of’ could have led the jury to convict defendant on
a theory of criminal responsibility that does not exist in the
law.”
Finally, defendant argues that his conviction on a nonexis-
tent theory of criminal liability violated his rights under the

Cite as 355 Or 172 (2014) 	187
Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
The state’s response is multi-layered. First, the state
asserts that plain error review of defendant’s assignments is
barred by ORCP 59 H because defendant failed to except
either to the jury instruction on felony murder or to the
trial court’s answers to the jury’s questions. We reject that
contention. See State v. Vanornum, 354 Or 614, 628-29, 317
P3d 889 (2013) (failure to meet requirements of ORCP 59 H
does not bar appellate court plain error review). Second, the
state asserts that the trial court’s answers accurately stated
the governing law. The state relies on this court’s decision
in State v. Reyes, 209 Or 595, 628, 308 P2d 182 (1957),
which held that the trial court in that case had properly
instructed the jury that the then-extant felony-murder stat-
utory phrase “in the commission of any felony” meant that
the killing must be accomplished “at some time during the
interval of the beginning and completion” of the predicate
felony. Finally, the state asserts that, even if this court is
unwilling to endorse the trial court’s answers as accurate
statements of the law, any error in giving them is not “obvi-
ous” and, therefore, not plainly erroneous.
We begin by noting that defendant does not argue
that the trial court erred by electing to answer the jury’s
questions. Rather, defendant challenges the substance of
those answers, which were tantamount to supplemental
jury instructions. In determining whether it was error to
give a particular jury instruction, this court reviews the
instructions as a whole to determine whether they accu-
rately state the law. State v. Barnes, 329 Or 327, 334, 986
P2d 1160 (1999); State v. Rogers, 313 Or 356, 383, 836 P2d
1308 (1992).
The parties debate at length whether the trial
court’s answers to the jury’s questions erroneously stated
the governing law and, if so, whether giving them was
plainly erroneous. In this case, however, we conclude that
it is unnecessary to make those determinations. That is
so because defendant, the party seeking review, agreed to
the giving of the supplemental instructions that he now
challenges.

188 	State v. Serrano
This court has consistently declined to review plain
error—assuming that it exists—in such circumstances.
See State v. Fults, 343 Or 515, 520-23, 173 P3d 822 (2007)
(emphasizing the importance, in deciding whether to correct
assumed plain error, of the “defendant’s apparent encourage-
ment of the judge’s choice”); see also State ex rel Juv. Dept.
v. S. P., 346 Or 592, 606, 215 P3d 847 (2009) (stating that
“[t]his court has determined that it will not exercise its dis-
cretion to review an asserted plain error if the party seek-
ing review encouraged commission of the error in question
or made a strategic choice not to object.”). Here, defendant
made an explicit decision to endorse the court’s answers to
the jury’s questions, and “he may not seek refuge from that
deliberate choice on appeal.” Id. We therefore reject defen-
dant’s fourth and fifth assignments of error without further
discussion.
C. 	Testimony that Physical Evidence had been Released to
Defendant
In his eleventh assignment of error, defendant argues
that the trial court erred by permitting a police criminalist
to testify, over defendant’s objection, that certain physical
evidence had been released to defendant for examination.
At trial, the prosecutor called an evidence officer
from the Washington County Sheriff’s Office, Marsden, to
testify about how physical evidence had been catalogued
and stored during the course of the investigation. Marsden
testified that items of physical evidence were brought to a
sheriff’s evidence storage facility and each item was then
bar coded and recorded on a property receipt. Marsden also
described how, generally speaking, when a piece of evidence
is released to a defendant for examination, that transac-
tion is documented on a property receipt. During Marsden’s
description of that process, and following a brief conference
with the trial court and the prosecutor out of the jury’s pres-
ence, defendant objected. Defendant argued:
“It appears to me that this witness is going to be asked a
series of questions about an evidence view that the defense
team did. I do not think that’s in any way, shape or form
relevant to the jury.

Cite as 355 Or 172 (2014) 	189
“Also, we had at one time, pursuant to the court’s order,
the shoes that were released to a forensic expert along with
the gun and the bullets in question to a forensic expert.
No information has been provided to the prosecutor about
what those results were, but it’s certainly trying to create
an inference with this jury that somehow the defense is
withholding information from the jury.
“And the reality is the defense has no burden of proof
whatsoever in a criminal case like this, yet this argument,
this line of questioning is putting that burden on us that
somehow we withheld information that we should have
been presenting to the jury.”
The trial court asked defense counsel how the pros-
ecutor’s line of questioning would suggest that inference,
and counsel replied:
“Because the jury’s going to infer that some result was—
came out of that examination and the fact that we didn’t
present it to the jury would certainly create the inference
that the findings from our own expert may have been con-
sistent with the state’s findings.
“And again, we have no burden of proving anything in
the courtroom. Whether we test something or not, it’s solely
up to us to decide whether we want to present evidence of
that. And I think it’s a shifting of the burden to the jury
with the inference they can make there was some finding
that wasn’t given to them, that it’s now put some burden on
us.”
In response, the prosecutor argued that:
“I don’t think it does that at all, your honor. [Defense
counsel] has made statements kind of obliquely to the jury
and made them elsewhere that this evidence is not of any
value, that it doesn’t tie the defendant to the homicide
scene.
“He has attacked with his questioning [another evidence
officer]. He’s questioned the verification process, required
us to bring in the verifier. This is chain of custody. These
items were provided to the defense. If there was an issue,
I’m sure that they would have been—it would have been
brought up with respect to the jury.”
The prosecutor went on to assert that, because
defendant was likely to argue that the physical evidence in

190 	State v. Serrano
the case had been somehow tainted, or that someone had
framed him for the murders, evidence of how the evidence
was handled after it had been seized from defendant was
relevant to rebut those potential arguments. Defense coun-
sel replied that he had not made a chain of custody argu-
ment and that he did not intend to assert that the police had
planted any of the physical evidence in the case.
The trial court overruled defendant’s objection,
explaining that:
“Well, I think there is some probative value to showing
the chain of custody and showing that the defense had the
opportunity to examine the items. And I don’t think it puts
an unfair burden on the defense or raises the inference that
the defense has to prove anything.”
Marsden proceeded to testify that several pieces of phys-
ical evidence, including the shoe impressions made in the
Dang residence and ballistics evidence from the handgun
found in defendant’s brother’s home, had been released to
the defense for examination. Marsden also testified that the
same items had been released to the Oregon State Crime
Lab. Defendant did not cross-examine Marsden.
On review, defendant asserts that (1) Marsden’s tes-
timony was irrelevant under Oregon Evidence Code (OEC)
4013 because defendant had not challenged the integrity of
the physical evidence against him; and (2) the testimony
was unfairly prejudicial under OEC 4034 because it had sug-
gested to the jury that defendant was required to disclose the
results of any tests that he may have performed on the phys-
ical evidence that was released to him. The state responds
that the evidence was relevant to establish the chain of cus-
tody of the physical evidence and that the chain of custody
3 OEC 401 provides:
“ ‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”
4 OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”

Cite as 355 Or 172 (2014) 	191
was relevant because the state’s case against defendant was
circumstantial, and its probative weight depended on the
strength of physical evidence linking defendant to the crime
scene. The state further argues that Marsden’s testimony
was not unfairly prejudicial because it was unlikely that the
jury would have drawn the layered set of inferences that
defendant posits.
Whether evidence is relevant under OEC 401 is
question of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133
(1999). OEC 401 establishes a “low threshold” for the admis-
sion of evidence. Id. (quoting State v. Hampton, 317 Or 251,
255 n 8, 855 P2d 621 (1993)). Where evidence is offered to
support an inference, the evidence is relevant “so long as the
inference desired by the proponent is reasonable, even if the
evidence also could support a contradictory inference.” Titus,
328 Or 475. Defendant’s relevance argument is grounded in
the premise that, because he had not challenged the integ-
rity of the physical evidence before Marsden testified, her
testimony was irrelevant.
Defendant’s argument misses the mark. As this
court recognized in State v. Zybach, 308 Or 96, 775 P2d 318
(1989), a party bearing the burden of proof is entitled to
anticipate, as part of its case-in-chief, inherent weaknesses
that might make its case less believable. In Zybach, the state
offered evidence of certain encounters between the defendant
and the victim to explain why the victim had delayed report-
ing that the defendant had raped her. Id. at 100. The trial
court admitted the evidence over the defendant’s objection,
and, following his conviction, the defendant appealed. The
Court of Appeals reversed, holding that testimony regard-
ing the victim’s delayed reporting was not admissible unless
the defendant had first raised that issue. State v. Zybach,
93 Or App 218, 222, 761 P2d 1334 (1988). On review, this
court concluded that the challenged evidence was properly
admitted. This court observed that to characterize the evi-
dence as “rehabilitative” was to “miscast” it; rather, the evi-
dence was relevant “to show why the child had not reported
the original sexual assault,” and it was “admissible in the
state’s case-in-chief under [the state’s] obligation to prove
the charge beyond a reasonable doubt.” Zybach, 308 Or at
100.

192 	State v. Serrano
The situation in this case is analogous. The state’s
case against defendant was circumstantial, and the physical
evidence linking defendant to the crime scene—including
the shoe impressions and ballistics evidence—was crucial.
The state was entitled to adduce testimony establishing
the chain of custody of that physical evidence; it was not
required to wait for defendant to lead with a challenge to
its probative weight. Marsden’s testimony tended to make
the probative weight of the physical evidence greater than it
would have been without her testimony, because it showed
how the evidence was maintained while in the state’s cus-
tody and that the only break in the state’s custody occurred
when the evidence was in the hands of the defense and the
state was not responsible for its condition and security. That
is all OEC 401 requires. The evidence was relevant.
We turn to whether the trial court abused its dis-
cretion by admitting Marsden’s testimony over defendant’s
objection that it was unfairly prejudicial under OEC 403. We
review a trial court’s decision to admit evidence over such an
objection for abuse of discretion. State v. Brumwell, 350 Or
93, 107, 249 P3d 965 (2011). As noted, defendant argues that
Marsden’s testimony suggested to the jury that defendant
was bound to disclose the results of any tests performed on
the evidence released to him. According to defendant, that
suggestion likely led the jury to hold against him his failure
to introduce the results of such tests. It follows, defendant
reasons, that the jury probably assumed that he had failed
to meet a burden of proof and then concluded that it could
convict him on that ground. We disagree.
The jury was instructed that the state had the bur-
den of proof, and this court presumes that a jury followed
trial court instructions in the absence of a showing that it
is unlikely that they were able to do so. See, e.g., State v.
Smith, 310 Or 1, 26, 791 P2d 836 (1990). Nothing in the
record suggests that the jury in this case was unable to fol-
low the court’s instructions. Based on those instructions,
it is improbable that the jury drew the chain of inferences
that defendant posits from Marsden’s testimony regarding
how evidence was logged in and out of the evidence storage
facility and the fact that the shoe impressions and ballistics

Cite as 355 Or 172 (2014) 	193
evidence had been released to defense counsel. Because
the probative value of the challenged evidence was not out-
weighed by unfair prejudice to defendant, the trial court
did not abuse its discretion in admitting it over defendant’s
objection under OEC 403.
D. 	Limitation of Defense Counsel’s Closing Argument
In his seventeenth assignment of error, defendant
argues that, by instructing the jury to disregard a statement
that his counsel made during closing argument, the trial
court abridged his right to counsel under Article I, section 11,
of the Oregon Constitution and the Sixth Amendment to the
United States Constitution.5
During closing argument, defense counsel argued:
“Let’s talk about the motive here. Okay? This is where
the state’s circumstantial evidence case comes up short.
How much has the state proved to you that my client knew?
Okay. How much did [defendant] know about the affair?
Did he know about the sexual activity between [Melinda
and Nguyen]? Did you hear one piece of evidence that he
even knew about the pregnancy or the fact that he wasn’t
the father?”
At that point, the prosecutor objected. The trial court held
a sidebar conference with the parties and then instructed
the jury to “disregard [defense counsel’s] last comments and
he’s going to rephrase them.” Defense counsel then told the
jury that:
“What, I guess, I’m going to ask you to do, and I’ll
shorten this, is what evidence has the state shown you
about the knowledge that my client had about the circum-
stances that were going on?”
After the jury retired to deliberate, the trial court
engaged counsel regarding the prosecutor’s objection. Defen-
dant explained:
5 Article I, section 11, of the Oregon Constitution provides, as pertinent here:
“In all criminal prosecutions, the accused shall have the right * * * to be heard by
himself and counsel[.]”
The Sixth Amendment to the United States Constitution provides, as perti-
nent here: “In all criminal prosecutions, the accused shall enjoy the right * * * to
have the assistance of counsel for his defence.”

194 	State v. Serrano
“Essentially, what I was—the argument I’m making
here is a key component of the state’s case has been the
motive behind this alleged crime. The court’s ruling I
feel has handicapped us to kind of not be able to respond
to that. I was not intending to make the argument that
the state withheld this information, but I was intending
to incorporate it into the overall lack of proof and how it
hasn’t met the standard of proof beyond a reasonable doubt
and, essentially, that the jury hadn’t been given—given
any information as to the level of knowledge that my client
possessed in order for that motive to exist.”
The trial court then explained why it had sustained the
prosecutor’s objection:
“I did sustain the objection and on the theory that—on
that particular event there was evidence, I believe, sup-
pressed. I think it was out of the telephone records the
issue that went to the Supreme Court in this case.[6]
“I sustained the objection on the theory that the defense
can’t use that as both a sword and a shield. That to argue
that the state didn’t produce any evidence that the defen-
dant had knowledge of the pregnancy, because we do know
that evidence was out there, it’s just that the state couldn’t
use it.
“I didn’t intend to and I don’t think I did say you couldn’t
argue lack of evidence, in general, as to his knowledge or
lack of evidence that he had motive to do it, but as to that
to pick pieces of evidence that [the prosecutor] objected to,
that’s why I sustained the objection.”
On review, defendant argues that the trial court
impermissibly curtailed his closing argument by preventing
him from arguing his theory of the case. The regulation of
jury argument is, generally speaking, committed to the dis-
cretion of the trial court. State v. Rogers, 330 Or 282, 300, 4
P3d 1261 (2000). Jury argument properly may include ref-
erences to matters that are within the bounds of the issues
6 Before trial, defendant moved to suppress under the marital-communications
privilege, OEC 505, evidence that Melinda had told defendant of her affair with
Nguyen, and had also told defendant that Nguyen was the father of the child. The
trial court suppressed the evidence, and this court affirmed. State v. Serrano, 346
Or 311, 210 P3d 892 (2009).

Cite as 355 Or 172 (2014) 	195
and evidence in the case. See State v. Simonsen, 329 Or
288, 298, 986 P2d 566 (1999), cert den, 528 US 1090 (2000)
(where the challenged statements in the state’s closing argu-
ment contained information that the state had introduced
as evidence, the defendant “failed to demonstrate how those
statements, which referred to evidence already before the
jury, resulted in prejudice”).
Assuming, without deciding, that the trial court
erred by instructing the jury to disregard defense counsel’s
statement, we conclude that the error was harmless because
counsel made substantially the same argument to the jury
immediately after the court’s intervention. As noted, after
the court ordered the jury to disregard defense counsel’s
statement, counsel argued:
“What, I guess, I’m going to ask you to do, and I’ll
shorten this, is what evidence has the state shown you
about the knowledge that my client had about the circum-
stances that were going on?”
That argument—to which the state did not object—conveyed
the same essential point as the argument that the trial
court had excluded: That the state had failed to prove that
defendant knew about “the circumstances that were going
on,” that is, Melinda’s relationship with Nguyen. Defense
counsel’s subsequent statement was not as specific as the
stricken statement, but it nonetheless communicated to the
jury defendant’s position that the state had failed to prove
that he had a motive to murder the victims. Because there
was little likelihood that the trial court’s action—even if
erroneous—affected the jury’s verdict, we reject defendant’s
seventeenth assignment of error. See State v. Davis, 336 Or
19, 32, 77 P3d 1111 (2003) (setting out standard).
III. 	SENTENCING
We turn to defendant’s assignments of error con-
cerning the sentence of death that the trial court imposed
based on the jury’s sentencing verdict. Three of defendant’s
assignments of error concerning evidence adduced at the
sentencing hearing merit discussion.

196 	State v. Serrano
Sentencing hearings after a conviction for aggra-
vated murder are governed by ORS 163.150.7 As pertinent
here, the jury was instructed that it must answer three
questions: First, whether defendant’s conduct “that caused
the death[s] of the deceased was committed deliberately and
with the reasonable expectation that death of the deceased
or another would result,” ORS 163.150(1)(b)(A); second,
whether “there is a probability that the defendant would
commit criminal acts of violence that would constitute a con-
tinuing threat to society,” ORS 163.150(1)(b)(B); and, finally,
“whether [defendant] should receive a death sentence,” ORS
163.150(1)(b)(C).
7 ORS 163.150 provides, in part:
“(1)(a) Upon a finding that the defendant is guilty of aggravated murder,
the court, except as otherwise provided in subsection (3) of this section, shall
conduct a separate sentencing proceeding to determine whether the defendant
shall be sentenced to life imprisonment, as described in ORS 163.105(1)(c),
life imprisonment without the possibility of release or parole, as described
in ORS 163.105(1)(b), or death. The proceeding shall be conducted in the
trial court before the trial jury as soon as practicable. * * * In the proceeding,
evidence may be presented as to any matter that the court deems relevant
to sentence including, but not limited to, victim impact evidence relating to
the personal characteristics of the victim or the impact of the crime on the
victim’s family and any aggravating or mitigating evidence relevant to the
issue in paragraph (b)(D) of this subsection; however, neither the state nor
the defendant shall be allowed to introduce repetitive evidence that has pre-
viously been offered and received during the trial on the issue of guilt. The
court shall instruct the jury that all evidence previously offered and received
may be considered for purposes of the sentencing hearing. This paragraph
shall not be construed to authorize the introduction of any evidence secured
in violation of the Constitution of the United States or of the State of Oregon.
The state and the defendant or the counsel of the defendant shall be permit-
ted to present arguments for or against a sentence of death and for or against
a sentence of life imprisonment with or without the possibility of release or
parole.
“(b) Upon the conclusion of the presentation of the evidence, the court
shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation
that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in
killing the deceased was unreasonable in response to the provocation, if any,
by the deceased; and
“(D) Whether the defendant should receive a death sentence.”

Cite as 355 Or 172 (2014) 	197
A. 	Testimony Regarding Hispanic Prison Gangs
In his nineteenth and twentieth assignments of
error, defendant argues that the trial court erred by failing
sua sponte to declare a mistrial (or by failing sua sponte to
strike the testimony and give a curative instruction) after
an Oregon Department of Corrections (DOC) officer testi-
fied about Hispanic prison gangs within Oregon’s prisons.
Defendant did not object to that testimony, but he argues
on review that it impermissibly injected the issue of race
into the trial and prejudiced him by making the jury more
likely to sentence him to death. Defendant relies on deci-
sions holding that the Due Process Clause of the Fourteenth
Amendment prohibits racially biased prosecutorial argu-
ments. See generally, e.g., Donnelly v. DeChristoforo, 416 US
637, 643, 645, 94 S Ct 1868, 40 L Ed 2d 431 (1974); Simonsen,
329 Or at 300 (this court will reverse when “the effect of the
prosecutor’s [actions] is to deny a defendant a fair trial”). In
such circumstances, this court reviews a trial court’s deter-
mination whether to grant a mistrial based on prosecutorial
misconduct for abuse of discretion. Id. For the reasons set
out below, we reject defendant’s arguments.
At the beginning of the sentencing hearing, the
prosecutor called Wagner, a DOC lieutenant, to testify
“about what prison life is like with respect to the facility
and how inmates are housed. How they’re housed if they
are sentenced to death. How they are housed if they receive
a life sentence.” Wagner described the physical layout of the
Oregon State Penitentiary as well as the level of segrega-
tion and control imposed on prisoners housed on death row
compared to prisoners sentenced to life imprisonment, who
are typically housed with the general prison population. The
prosecutor then engaged Wagner in the following colloquy:
[Prosecutor]: 	“Lieutenant Wagner, I have a couple of
questions for you. Are there gangs—and I’ll use the term
gangs—that operate within the Department of Corrections?
[Wagner]: 	“Yes, there are.
[Prosecutor]: 	“Are there three general categories that
you break those down into?

198 	State v. Serrano
[Wagner]: 	“I would break them down into gangs,
mostly went from white Hispanic and Black.
[Prosecutor]: 	“Are they generally divided among race?
[Wagner]: 	“Generally, yes.
[Prosecutor]: 	“With respect to Hispanic gangs, are
there more than one that operate within the facility?
[Wagner]: 	“There is one major one and then there’s
subsets that operate within the facility.
[Prosecutor]: 	“Okay. And I—I take it the Department
of Corrections does whatever it can to curtail gang activity
within the facility?
[Wagner]: 	“Correct.
[Prosecutor]: 	“And it still goes on?
[Wagner]: 	“Yes, it does. Unfortunately.
[Prosecutor]: 	“Okay. Is there a hierarchy within the
Hispanic gangs within the facility?
[Wagner]: 	“Yes, there are. There’s ones that are called
soldiers and then there’s your shock collars.
[Prosecutor]: 	“Do these gangs consist of individuals
who were gang members when they entered the facility and
individuals who become gang members after they enter the
facility?
[Wagner]: 	Both.”
(Emphasis added.)
Wagner then described how gangs within DOC
institutions typically approach new inmates and tell them
either to join the gang or pay the gang for protection from
harm. Whether or not an inmate is offered membership
in the gang depends on the inmate’s crime of conviction,
Wagner testified, with murder giving an inmate “very high”
status. According to Wagner, gangs within DOC institutions
are financially driven, working to generate income by “intro-
ducing contraband, mostly drugs” into the prisons. During
cross-examination, Wagner testified that the “general ages”
of gang members were “eighteen to probably twenty-five,
twenty-seven.”

Cite as 355 Or 172 (2014) 	199
Defendant argues that Wagner’s description of the
hierarchy within Hispanic gangs as “ones that are called
soldiers and then there’s your shock collars,” should have led
the trial court, sua sponte, to grant a mistrial, or to strike the
testimony and instruct the jury to disregard it. Defendant
acknowledges that he failed to preserve those arguments,
but urges this court to review them as plain error. According
to defendant, Wagner’s testimony “isolated ‘Hispanic gangs’
from other gangs in a way that made the ‘Hispanic’ gangs
seem more dangerous than the others,” because
“Lieutenant Wagner’s answer that ‘Hispanic gangs’
have roles such as ‘soldiers’ and ‘shock collars’ was incred-
ibly inflammatory. Soldiers are trained in warfare, and a
‘shock collar’ commonly refers to a dog-training collar that
delivers electric shocks. * * * Both words have violent and
frightening connotations. The testimony violated due pro-
cess because it applied those violent and frightening words
to ‘Hispanics,’ which is defendant’s ethnicity.”
Defendant further asserts that the testimony prejudiced
him because, viewed in light of Wagner’s testimony about
how new inmates are recruited into gangs, “the testimony
that Hispanic gangs have soldiers and shock collars sug-
gested that Hispanic inmates, a group that defendant would
soon join, are encouraged if not irresistibly predisposed to
violence upon entering prison.” It follows, defendant rea-
sons, that he was entitled to a mistrial or to an instruction
directing the jury to disregard that testimony. According to
defendant, the trial court’s failure to take either course of
action prejudiced him, particularly with regard to the jury’s
determination, under ORS 163.150(1)(b)(B), whether he
would “commit criminal acts of violence that would consti-
tute a continuing threat to society.”
The state responds that defendant’s nineteenth and
twentieth assignments are unpreserved and do not involve
plain error, and, thus, this court should not consider them.
On the merits, the state argues that defendant’s theory of
prejudice depends on a complicated chain of inferences that
the jury was unlikely to have drawn from Wagner’s fleet-
ing reference to “soldiers” and “shock collars,” terms that
Wagner did not define or explain. Finally, the state observes

200 	State v. Serrano
that Wagner did not testify that Hispanic gangs are more
violent than white or African-American gangs, only that
gangs within DOC institutions generally are organized by
race.
As discussed, we review a trial court’s decision
whether to order a mistrial for abuse of discretion. State v.
Terry, 333 Or 163, 175, 37 P3d 157 (2001); Simonsen, 329
Or at 300. In conducting that review, we recognize that
“[t]he trial judge is in the best position to assess the impact
of the complained-of incident and to select the means (if any)
necessary to correct any problem resulting from it.” State v.
Wright, 323 Or 8, 12, 913 P2d 321 (1996). Where, as here,
the defendant failed to object to questions or testimony that
he now asserts were so prejudicial as to require the trial
court, sua sponte, to order a mistrial, we first must deter-
mine whether any error is apparent on the face of the record.
State v. Montez, 324 Or 343, 357, 927 P2d 64 (1996). As pre-
viously discussed, an error is “apparent on the face of the
record” only when “the legal point is obvious, not reasonably
in dispute.” Brown, 310 Or at 355. As we have explained,
“[a]pplying that standard, the trial court’s failure to grant
a mistrial sua sponte constitutes reversible error only if it is
beyond dispute that [the complained-of] testimony was so
prejudicial as to have denied [the] defendant a fair trial.”
Montez, 324 Or at 357; see also Smith, 310 Or at 24 (“Even if
we find the prosecutor’s remarks to be improper, tasteless,
or inappropriate, we will not find an abuse of discretion in
the trial court’s denial of the motion for a mistrial unless
the effect of the prosecutor’s remarks is to deny a defendant
a fair trial.”).
Applying that standard, we conclude that defen-
dant’s assignments do not implicate plain error. Just before
giving the testimony that defendant complains of, Wagner
was asked how, generally speaking, gangs within DOC
institutions are organized.8 He answered that they were
organized by race, including “white[,] Hispanic and black”
8 This court has held that testimony regarding gangs inside prison is rele-
vant to the inquiry under ORS 163.150(1)(b)(B) concerning a defendant’s poten-
tial future dangerousness both to the society within the prison and to society at
large. See, e.g., State v. Sparks, 336 Or 298, 323-24, 83 P3d 304, cert den, 543 US
893 (2004). Defendant does not contend otherwise.

Cite as 355 Or 172 (2014) 	201
gangs. Nothing in that answer supported an inference that
Hispanic gangs were more dangerous than other racially-
organized gangs. Wagner’s later reference to “soldiers” and
“shock collars” was made in response to a question regarding
the “hierarchy within the Hispanic gangs within the pris-
ons.” Wagner did not explain those terms, and it is not clear
whether the terms referred to different types of Hispanic
gangs or to the roles of individual gang members.
Defendant asserts that the jury likely inferred that
the terms referred to the roles of individual gang members
and, having done so, the jury likely further reasoned that
defendant would commit criminal violence in the future
because he is Hispanic and because Hispanic gangs are
particularly violent. We cannot say that it is obvious that
the jury would draw those inferences or that it is “beyond
dispute” that the prosecutor’s questions and Wagner’s testi-
mony were “so prejudicial as to have denied defendant” a fair
sentencing hearing under ORS 163.150. Accordingly, defen-
dant’s unpreserved assignments do not constitute “plain
error,” and we do not consider them further.
B. 	Objection to Videotape of Melinda’s Living Situation
At the outset of the sentencing hearing, and outside
the presence of the jury, the trial court stated on the record
that “the defense has notified me that it objects to a video
clip of [Melinda’s] current living circumstances and I’ve
indicated that I would let the state present that evidence,
but I’m noting the defense objection for the record.” Neither
defendant nor the trial court stated the basis for that objec-
tion on the record.
Melinda later testified at the sentencing hearing.
She described her life with defendant before his arrest in
this case, and she also testified about how her life had
changed after defendant’s incarceration. To supplement her
testimony, the state admitted a videotape, exhibit 240, that
depicted Melinda’s residence at the time of the sentencing
hearing. Before admitting the videotape, the trial court
asked defendant if he had any objection. Defense counsel
answered “no, your honor.”

202 	State v. Serrano
In his twenty-first assignment of error, defendant
argues that the trial court erred by “failing to make a record
reflecting an exercise of discretion regarding the admission”
of the videotape. Defendant’s premise is that the trial court
was obligated to make such a record because, to be admissi-
ble, the videotape had to meet the requirements of OEC 403
and the Eighth and Fourteenth Amendments to the United
States Constitution. In essence, defendant’s argument is
that the prejudicial effect of the videotape on the jury out-
weighed whatever probative value it had and that the trial
court erred by not making a record demonstrating that it
had conducted the balancing test required by OEC 403 and
the United States Constitution. “Had the court performed
that duty,” defendant concludes, “it would have found the
evidence’s substantial potential for prejudice greatly out-
weighed any minor probative value the evidence held.”
The state responds that the assignment of error
is unpreserved and does not involve plain error because
(1) there is no indication in the record of the basis of defen-
dant’s initial objection to the videotape; and (2) when the
trial court later asked defendant if he had any objections to
the tape being played for the jury, defendant answered “no.”
Assuming that the basis for the objection was OEC 403, the
state argues that the videotape was not unfairly prejudicial
and that, even if it were, its admission was harmless because
it merely duplicated the oral testimony that Melinda gave—
without objection—describing how her living circumstances
had improved following defendant’s incarceration.9
The central premise of defendant’s argument before
this court—that the trial court was obligated to engage in
the OEC 403 balancing test on the record—is his implicit
and unsupported assertion that that rule, and the Eighth
and Fourteenth Amendments, were the basis of his initial
objection in the trial court. We cannot determine that from
the record before us, however, and we decline to assume it
on review. Accordingly, we reject defendant’s twenty-first
assignment of error.
9 The state does not argue that, by answering “no” to the trial court’s ques-
tion whether he had any objection to exhibit 240, defendant waived his earlier
objection to that evidence; accordingly, we do not address that possibility.

Cite as 355 Or 172 (2014) 	203
IV. 	CONCLUSION
As previously noted, we have considered defendant’s
other assignments of error, and we summarily reject them.
The judgment of conviction and the sentence of
death are affirmed.