FILED: October 18, 2000







(95C20967, 97D112151; CA A103587 (Control), A103603)

(Cases Consolidated)

Appeal from Circuit Court, Marion County.

Gregory West, Judge.

Argued and submitted March 31, 2000.

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Jennifer Scott Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong, Judge, and Ceniceros, Senior Judge.




Defendant appeals from convictions for assault in the fourth degree, ORS 163.160, criminal trespass in the second degree, ORS 164.245, and interfering with a police officer. ORS 162.247. He seeks reversal of his conviction for assault in the fourth degree. He assigns error to the trial court's denial of his motion to suppress a tape-recording of a 9-1-1 call made by the victim of the assault. He also assigns error to the trial court's denial of his motion to exclude portions of the tape that he argued were more prejudicial than probative. We affirm.

The facts relevant to the conviction for assault in the fourth degree are not in dispute. Defendant entered the Salem residence of his sister when the sister was not there. While he was inside the home, defendant's 17-year-old nephew, the son of the owner of the residence, arrived at the residence and found defendant there. As soon as the nephew entered the residence, defendant hit him several times and "put him on the couch." The victim suffered a bloody nose, a severe headache, and was nauseated from the blows. As soon as defendant left the residence, the victim immediately called 9-1-1. He reported the assault, related his injuries, and stated that he believed defendant would return to the residence. Officers were dispatched to the residence, but before they arrived, the victim called 9-1-1 again to request that an emergency medical team be sent. During the calls, the victim made repeated references to defendant's probable drug use, one reference to the fact that defendant probably had stolen the car that he was driving, and another reference to defendant "breaking in" to the residence. After officers arrived at the residence, defendant returned to the scene and was arrested.

During an omnibus hearing, the state sought a determination of whether the 9-1-1 tape was admissible as containing excited utterances. Defendant's counsel stipulated to the authenticity of the tape, but objected to its admission. In the argument that followed, defendant referred to specific portions of the tape as unfairly prejudicial and asked the court to redact the tape to remove all references to drug use and addiction, to the possibility that defendant stole the car that he was driving and to the statement about defendant's breaking into the residence. The trial court admitted the evidence of excited utterances, but redacted the references to the stolen car and to the method of entry of the residence. It left intact the victim's references to defendant's drug use and addiction. The victim did not testify at trial. Also, defendant did not testify, but some of his statements as reported to an investigating officer were admitted. Defendant was convicted by a jury after the evidence from the tape was admitted.

On appeal, defendant argues in his first assignment of error that the state was required to prove that the victim was unavailable to testify at trial, and that, in the absence of any evidence of unavailability, his right to "meet the witness[] face to face" under Article 1, section 11, of the Oregon Constitution, was violated. (1) He asserts that his objection at trial was sufficient to preserve that argument on appeal. The state responds that defendant's argument was not preserved under ORAP 5.45(2) because his objection on confrontation clause grounds was too general and did not put the trial court or the state on notice that he was raising the "unavailability" issue.

We turn first to the actual objection made at trial. Defendant's counsel argued that the 9-1-1 calls made by the victim:

"[v]iolate [defendant's] right to confront * * * [the victim] in violation of both the Oregon Constitution and the Federal Constitution. Starting, if you will, backwards, from the second call from [the victim], the third call on exhibit number 1,[ (2)] it's pretty clear that, when you listen to that call and listen to the first call, that [the victim] has had a period of reflection within this time. The children are now in the house, they aren't in the house in the first call, because you can't hear them in the background.

"* * * * *

"Additionally, within that telephone call, there are comments from the 911 operator. Particularly the comment that she's seen worse, or words similar to that effect, which clearly, under any circumstance are not admittable [sic]. Until that gets excised, that call shouldn't come in at all--even as an excited utterance. That call needs to be cleaned up.

"That problem--of a whole bunch of stuff that is prejudicial and irrelevant--is rampant throughout the first call. It may well be excited utterance, but it contains references to drug usage, breaking into [the victim's] mom's house * * * shortly thereafter, saying that [defendant] is really on drugs bad, he's pretty flipping, good thing I left the kids in the car--that's not relevant for anything. It's just - it's incredibly prejudicial. Yanks the jury's sympathy. * * *

"This comment towards the end that the car is probably stolen, he's been drinking, he's probably on crank, definitely a drug addict--all that stuff is, I don't think they're excited utterances. They don't relate to the event. Umm--they are clearly prejudicial and clearly irrelevant. There's nothing in this case about drugs. There's nothing in this case about stolen cars, there's nothing in this case about children.

"* * * * *

"We need to hear a cleaned up copy of exhibit one before it can be played, because there's an awful lot in it that shouldn't even be in there, even if it is an excited utterance. So I think at this point none of these calls should be admitted. I think the state's conceded that call number two should not be. The tape should not be admitted in its present form, call number three is clearly not an excited utterance. There are reflections in there, all the things that the courts have said, there's been a lapse of time, the physical and mental condition is clearly different. There's stuff in there from the 911 operator that doesn't belong in there, in this case at all. And the first call, while it may be an excited utterance, like both calls, it violates [defendant's] right to confrontation, it is so filled with irrelevant and prejudicial information that outweighs any probative value, that, until at least that's cleaned up, none of it should come in."

Defendant concedes that he never expressly told the trial court that his ground for objection was based on the victim's "unavailability." He argues, however, that once the state offers statements of a witness who will not testify at the trial, and the confrontation clause is generally mentioned, the state must make a dual showing: (1) that the witness is unavailable; and (2) that the evidence is sufficiently reliable. Defendant is correct that the admission of testimonial evidence against a defendant when the declarant is not present will violate the Oregon confrontation clause, unless two requirements are met. First, the state must establish that the declarant is unavailable. State v. Moore, 159 Or App 144, 150, 978 P2d 395, rev allowed 329 Or 438, 994 P2d 125 (1999). Second, the declarant's out-of-court statements must have adequate indicia of reliability. State v. Campbell, 299 Or 633, 648, 705 Pd 694 (1985). However, the right to require the state to put on such evidence can be waived by a defendant's failure to make a timely and specific objection. See, e.g., State v. Jensen, 313 Or 587, 837 P2d 515 (1992) (holding that the Court of Appeals erred when it reached the defendant's confrontation clause argument in light of the fact that the defendant made no state or federal confrontation clause objection at trial).

As defendant concedes on appeal, his arguments to the trial court quoted above raise at least two possible objections. They could be understood as an objection to the admission of the evidence on the ground that the statements are not excited utterances and are therefore excludable as hearsay--an objection under OEC 802. They could be understood as an objection that the statements are too prejudicial to be admitted--an objection under OEC 403. In that light, the question is whether the additional general references to a violation of defendant's "right to confrontation" raises the issue of unavailability for purposes of appeal. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (for preservation purposes, the raising of the issue is essential; the identification of a source for the claimed position and the making of a particular argument are less essential to the requirement of preservation).

The reason for requiring a precise, timely objection is so that the trial court and opposing counsel are on notice as to the nature of the objection and will have a chance to rectify the error, if there is one, before an appeal occurs:

"A party owes the trial court the obligation of a sound, clear and articulate motion, objection or exception, so as to permit the trial judge a chance to consider the legal contention or to correct an error already made. The reason for such a rule is not merely to promote form over substance but to promote an efficient administration of justice and the saving of judicial time." Shields v. Campbell, 277 Or 71, 77, 559 P2d 1275 (1977).

Here, defendant's objection did neither. The context of defendant's confrontation clause objection below was the argument that the evidence did not satisfy the "adequately reliable" prong because it was not an excited utterance, and therefore not hearsay within one of the well-established hearsay exceptions. From the trial court's response, it is also clear that it understood the objection only to be that the tapes were not excited utterances, and that they were unduly prejudicial:

"Both tapes are excited utterances, so they will come in. I agree with you * * * there are some statements * * * that may be inadmissible. I think that, given that they are excited utterances, any witness can opine as to whether or not somebody else is under the influence of a drug of some kind - the question is the weight to give that[.] So I think his statement that [defendant] was under the influence of drugs, whichever way he stated it, was probably admissible as an opinion, because it would be admissible if he were here[.] I have concerns about the other statements - the car being stolen * * *."

Our conclusion that the issue was not preserved below is supported by our holding in State v. Hasson, 153 Or App 527, 534, 958 P2d 183 (1998). In that case, the state offered evidence against the defendant that fit within the excited utterance exception to the hearsay rule. The defendant's objection to the admission of the evidence was:

"I'd ask the court to consider [defendant's] Sixth Amendment right to confront witnesses. I see this as a pretty serious exception to the hearsay rule when the main witness, and really the only accuser of [defendant] is not present to testify, not present for me to cross-examine. And I don't think the excited utterance--allowing statements in under the excited utterance exception is appropriate unless the court can really clearly find that I could benefit--could not benefit, [defendant] could not benefit from my being able to cross-examine this witness. And considering all the factors, it would just, it just seems like a huge stretching of the rule."

Hasson, 153 Or App at 534. On appeal, we held that the claim of error of not requiring the state to present evidence of unavailability had not been preserved, because counsel's statements about the benefit of cross-examination deflected the trial court's attention away from the alleged objection to declarant's absence. Here, defendant did not even mention the declarant's absence, and his argument focused the trial court's attention on the issue of reliability, not unavailability.

Defendant contends that he renewed his "unavailability" objection when he subsequently said to the trial court:

"One matter from me, your honor, just to make sure the record's clear, and I've made sure I've made all of my objections to the tapes. In relation to the comments about [defendant's] alleged drug usage and all of that, I think, more than anything, those comments being allowed to be admitted violate [defendant's] right to confront the witnesses under the state and federal constitutions." (Emphasis supplied).

However, his renewed objection merely preserved his earlier argument that the tapes were not excited utterances, or alternatively, that they were more prejudicial than probative. It is noteworthy that the renewed objection did not contain any mention of "unavailability" either. Defendant in essence argues that because he identified a particular source for his argument, he necessarily raised all issues presented by that source. We do not understand Hitz to hold that if a party has identified a source for an argument, all issues addressed in that source are also raised. That seems to require reading Hitz backward. Under the circumstances, we conclude that defendant has not preserved the claim of error raised in his first assignment.

In defendant's second assignment of error, he argues that the admission of the statements pertaining to his illegal drug use violates OEC 403, (3) because their probative value is outweighed by their unfair prejudicial effect. We review for an abuse of discretion. State v. Thompson, 328 Or 248, 258, 971 P2d 879, cert den 527 US 1042, 119 S Ct 2407, 114 L Ed 2d 805 (1999). Defendant concedes that the allegations of drug use on the night of the assault are relevant, because they are probative of the issue of his mental state on that occasion and whether he acted in self-defense. However, he argues that the jury might have reasoned that a person who uses illegal drugs is more likely also to have committed an unlawful assault, or the jury might have wanted to punish his drug use regardless of the evidence.

As noted above, the trial court heeded defendant's objection to several drug-related statements, listened to argument on each statement separately, redacted some statements from the tape and left some statements intact. The statements defendant continues to object to are statements by the victim that defendant was "flipped out" on drugs, that defendant was "really on drugs bad," that defendant was likely to return to the residence because he was pretty "flipped," that defendant had been drinking on and off and using crank and that defendant was "definitely a drug addict." We analyze the first four statements about defendant's drug use and its effect on him on the night of the assault separately from the statement that defendant is a "drug addict," because the statements have different implications.

Evidence is unfairly prejudicial if it has an undue tendency to cause the jury to decide the case on an emotional or improper ground, rather than on the evidence about a fact of consequence. State v. Wilhelm, 168 Or App 489, 495, 3 P3d 715 (2000). In State v. Lyons, 324 Or 256, 280, 924 P2d 802 (1996), the court said that unfair prejudice occurs when "the preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to establish a fact of consequence." Here, the fact of consequence to be established by the state is that defendant acted "recklessly"--the mental state required for the assault charge. As to the first four statements, there is no unfair prejudice because the references to defendant's drug use on that night are related to his mental state while committing the assault. The statements also are probative regarding defendant's argument that he acted in self-defense and his ability to recall the events of the evening. The arresting officer testified that defendant told him that he had not touched the victim. Under the circumstances, the trial court did not err in concluding court that any unfair prejudice as to those statements was outweighed by their probative value.

As to the comment that defendant is "definitely a drug addict," the trial court found that it was admissible as a basis for the victim's opinion about defendant's mental state. The "drug addict" statement, unlike the other statements, has no bearing on defendant's mental state on the night of the assault. It is not probative on the issues of self-defense or whether defendant's recollections of the event that night were reliable. It is a general and sweeping commentary on defendant's character--the kind of evidence that we have consistently excluded. See e.g., OEC 404(2); See also e.g., State v. Davis, 54 Or App 133, 634 P2d 279 (1981) (where the defendant was charged with raping 10-year-old girl, evidence tending to establish a "lustful disposition" was held not admissible).

Even if the admission of the "drug addict" evidence was error, it does not necessarily follow that reversal is required. OEC 103(1). (4) The rights of an aggrieved party are substantially affected if the outcome either would have or may have been different, had the error not occurred. Baker v. English, 324 Or 585, 590, 932 P2d 57 (1997). Here, there is not even a substantial possibility that exclusion of the statement that defendant was an addict would have resulted in an acquittal. There was ample evidence to establish every element of the assault in the fourth degree charge, and there was otherwise admissible evidence of defendant's drug use. We hold that any error by the trial court in admitting evidence that defendant was a drug addict was harmless.


1. Article I, section 11, provides:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment."

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2. The second call recorded on the tape was completely excised pursuant to the agreement of the parties. It has no bearing on the issues presented here.

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3. 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."

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4. OEC 103(1) provides in part:

"Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]"

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