Argued and Submitted: March 27, 2013.
Multnomah County Circuit Court 110646752. Merri Souther Wyatt, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jake J. Hogue, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[261 Or.App. 588] ORTEGA, P. J.
Defendant appeals a judgment imposing sanctions for two counts of contempt (Counts 1 and 3) for violating a restraining order, challenging the trial court's admission of evidence
over his hearsay objection. The restraining order at issue prohibited defendant from, among other things, contacting his wife (the victim) by telephone, or entering or attempting to enter the area within 150 feet of the couple's residence. At trial, two police officers testified about their interactions with the victim and defendant. The trial court initially sustained defendant's hearsay objections to portions of the officers' testimony that touched on what the victim had told them. However, after defendant testified in his defense, the court allowed one of the officers to recount the victim's statements to the officer, concluding that the testimony was admissible to impeach defendant's testimony. On appeal, defendant contends that the court erred by allowing the officer's testimony over his hearsay objection. The state counters that defendant failed to preserve the argument that he now makes on appeal and that, even if that argument were preserved, any error was harmless. We conclude that defendant preserved his argument and that the court erred in allowing the disputed testimony. We further conclude that the error was harmless as to Count 1, but was not harmless as to Count 3. Accordingly, we reverse and remand defendant's conviction on Count 3, remand for resentencing, and otherwise affirm.
On appeal of a judgment of conviction, we view the evidence in the light most favorable to the state. State v. Maiden, 222 Or.App. 9, 11, 191 P.3d 803 (2008), rev den, 345 Ore. 618, 201 P.3d 909 (2009). However, when assessing whether the erroneous admission of disputed evidence was harmless, " we describe and review all pertinent portions of the record, not just those portions most favorable to the state." Id.
The following facts are undisputed unless otherwise indicated. The victim obtained a Family Abuse Prevention Act restraining order, ORS 107.718, prohibiting defendant from, among other things, contacting or attempting to contact her by telephone " directly or through third parties" or " entering or attempting to enter, or remaining in, the [261 Or.App. 589] area within 150 feet" of the victim's residence or workplace. Defendant was served with the restraining order the same day.
Three days later, the victim was living in the couple's residence with their 13-year-old son, and defendant had just been released from the hospital. Late that day, Officer Hollenbeck responded to a report from the couple's residence that a restraining order had been violated. After speaking with the victim at the residence, Hollenbeck proceeded to search for defendant in the surrounding area in his patrol car, and observed him drive within one block, or about 300 feet, of the residence. Hollenbeck never observed defendant make the northbound turn that would have taken him directly to the residence. Hollenbeck followed defendant, eventually stopping him approximately 500 to 600 feet from the residence.
Officer Paddock had arrived at the residence separately in response to the victim's report. After talking briefly with the victim, he left to search the area, but quickly returned when he noticed the victim flagging him down. Paddock and the victim had a second conversation, the contents of which are central to defendant's assignment of error on appeal. Paddock proceeded to the location where Hollenbeck had stopped defendant. ...