Submitted February 18, 2014
Multnomah County Circuit Court. 110933856. Adrienne C. Nelson, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[263 Or.App. 281] TOOKEY, J.
Defendant appeals a judgment of conviction, entered after a bench trial, for attempted murder, ORS 163.115; ORS 161.405, assault in the second degree, ORS 163.175, two counts of unlawful use of a weapon, ORS 166.220, and two counts of menacing, ORS 163.190. He assigns error to the trial court's exclusion of a witness statement as hearsay, arguing that the statement falls within the " excited utterance" exception to the hearsay exclusionary rule. See OEC 802 (rule
against hearsay); OEC 803(2) (hearsay rule does not exclude " [a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" ). The state concedes that the trial court erred in excluding the testimony, and we agree with and accept the state's concession.
Nonetheless, the state argues that we should affirm the trial court's judgment because the error was harmless. See Or. Const, Art VII (Amended), § 3 (if " the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed" ). We conclude that the error was harmless as to two of the counts, but it was not harmless as to the other four counts. Accordingly, we reverse in part and affirm in part.
Defendant's convictions arose from two altercations that occurred on the same day--one in which Smith was the victim, and one in which Branch was the victim. Defendant's sole defense was that he acted in self-defense. In support of his self-defense theory, defendant attempted to solicit the following testimony from his mother, Galvez, whom defendant's girlfriend, Rouse, had allegedly called during one of the altercations:
" [GALVEZ:] She called me frantically screaming and crying, talking about, 'They're jumping [defendant], they're jumping [defendant], you guys need to ...