Argued and Submitted June 26, 2013.
Washington County Circuit Court. C101144CR. Steven L. Price, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
[262 Or.App. 531] NAKAMOTO, J.
Defendant appeals a judgment of conviction for unlawful use of a weapon, ORS 166.220(1)(a), menacing, ORS 163.190, attempted first-degree sexual abuse, ORS 163.427, and fourth-degree felony assault, ORS 163.160(3). Defendant raises 14 assignments of error relating to the prosecutor's comment on defendant's behavior at trial, the admission of hearsay statements by the victim, and the nonunanimous jury. We write only to address defendant's assignments of error pertaining to the trial court's admission of hearsay statements that the state offered to rehabilitate the victim's testimony under OEC 801(4)(a)(B). The state concedes that the trial court erred in admitting the hearsay statements, but argues that any error was harmless. We conclude that, with the exception of defendant's conviction for fourth-degree felony assault, the error was not harmless, and, therefore, we reverse and remand defendant's remaining convictions.
Because the jury convicted defendant, we state the facts in the light most favorable to the state. State v. Hale, 335 Ore 612, 614, 75 P.3d 448 (2003), cert den, 541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004). However, in assessing whether the admission of hearsay testimony was error, and, whether an erroneous admission was harmless, " we describe and review all pertinent portions of the record, not just those portions most favorable to [the state]." State v. Eckert, 220 Ore App 274, 276, 185 P.3d 564, rev den, 345 Ore. 175, 190 P.3d 1237 (2008). Therefore, we begin by reciting, in the light most favorable to the state, the evidence that supports the
convictions, but then describe any additional contested evidence that factors into our harmless error inquiry.
Defendant and the victim were married in Mexico and have three children together. At the time of the events, defendant had legal immigration status but the victim did not. Defendant has a history of domestic violence against the victim, resulting in a prior assault conviction in 2004. In this case, defendant was convicted on counts related to two separate domestic violence incidents in 2009 and 2010.
In June 2009, defendant came home from work, and he and the victim argued. During the argument, defendant [262 Or.App. 532] took pruning shears and placed them against the victim's fingers, threatening to cut them off. When one of their children intervened, defendant stopped. Related to that incident, the jury found defendant guilty of unlawful use of a weapon and menacing. Soon after that incident, the victim moved herself and her children into a domestic violence shelter. She also obtained a restraining order against defendant.
In May 2010, the victim was moving into the apartment of a mutual friend of defendant and the victim. When the victim arrived at the apartment, defendant was sitting on the couch. The victim believed that defendant would leave because she still had a restraining order against him, so she went into her room and lay down. Defendant followed her into the room and began caressing her and trying to take off her pants. When the victim refused to have sex with defendant, they began arguing. Defendant, through his trial counsel, admitted at trial that during the argument, he struck the ...