Argued and Submitted August 28, 2013
Washington County Circuit Court D103364M. Rick Knapp, Judge.
Alice Newlin-Cushing, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, 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 Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[264 Or.App. 359] DUNCAN, P. J.
Defendant's assignments of error raise a question of first impression under Oregon law: Does the mere act of forwarding an e-mail create an additional layer of hearsay regarding the content of that e-mail? In this stalking case, defendant sent e-mails to " Nona," who then forwarded those e-mails to her daughter, " T. N.," one of defendant's victims. Defendant now argues that, by forwarding the e-mails, Nona added a layer of hearsay for which there was no hearsay exception, rendering the e-mails inadmissible under the Oregon Evidence Code and Article I, section 11, of the Oregon Constitution. Interesting as the issues may be, defendant did not advance a " layered hearsay" argument in the trial court, so we decline to address his assignments of error. Accordingly, we affirm.
For purposes of this appeal, the background facts are not in dispute. Defendant was in a relationship with T. N. After that relationship ended, T. N. moved in with " J. C.," who had been one of defendant's friends, and then began a relationship with J. C. Defendant, who was upset by that development, sent threatening e-mails and text messages to T. N. in which he threatened to harm J. C. and commit suicide. Defendant also threatened J. C. by, among other things, sending him text messages in which he threatened to kill him and deliver his body to T. N.
In addition to those e-mails and text messages, defendant also sent e-mails to Nona, T. N.'s mother. In those e-mails, defendant threatened to harm J. C. in front of T. N., blamed T. N. and J. C. for not being forthcoming about their relationship, and suggested that he would commit suicide. Nona forwarded some of those e-mails to T. N., who shared them with J. C.
Defendant was charged with stalking and telephonically harassing T. N. (Counts 1 and 3) and stalking and telephonically harassing J. C. (Counts 2 and 4). Before trial, the state indicated that it intended to introduce the text messages and e-mails sent by defendant, including those sent to Nona and forwarded by her to T. N. Upon receiving the state's exhibit list, defense counsel objected to the admission of the forwarded e-mails, arguing:
[264 Or.App. 360] " I would object to those. If Nona's not going to be here to testify, I'm not going to be able to cross-examine her, and there's not going to really be a foundation. She's not a named victim in this case, though she is one of the alleged victims' mother, she lives in [another state]. I can't ask her questions. I can't really refute where these messages came from.
" So, essentially, the State is going to have [T. N.] get up there and say, 'These messages are from [defendant], which he provided to my mother, which she provided to me.' I would object to that. That denies me the right to confront the witnesses under the confrontation clause, and a--for the State to have an authentication of these messages. I think she needs to be here.
" I'm not objecting to the ones where they allege my client sent messages to her--to one of the people named in the Count 2 and 4. That's fine. That--I know that's coming in, but I have no way to cross-examine the other person, and, plus, I don't know that it's relevant, since it's not here."
Although defense counsel's argument focused on confrontation rights, authentication and relevancy, the trial court--at least at the outset of the argument--understood defendant to be making some type of hearsay objection as well. The court asked defense counsel, " So, if I'm hearing you correctly, you're saying you're objecting on relevance, hearsay, and confrontation?" Counsel responded, " Yes, Judge," but did not identify or elaborate on the nature of the hearsay objection.
In response to defense counsel's argument, the prosecutor then identified what he understood to be the relevant hearsay exception:
" So, the State would argue that the hearsay exception is admission by a party opponent, and that any--any argument that the Defense might have goes to weight, not admissibility. The State will be able to establish that [T.N.] knows the e-mail of her mother, knows the e-mail of the defendant, and was forwarded these and read these in the context of her communications with the defendant, which were also consistently threatening and concerning, regarding the defendant threatening to kill both [T. N.] and [J. C.]."
[264 Or.App. 361] At that point, the court interrupted and asked the prosecutor to help clarify the court's understanding of the relevant ...