Submitted April 26, 2013
Multnomah County Circuit Court. 100646533. John A. Wittmayer, Judge.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
DE MUNIZ, S. J.
[265 Or.App. 152] Defendant appeals a judgment of conviction for attempting to promote prostitution, ORS 167.012(1)(d). On appeal, defendant
assigns error to the admission into evidence of conversations recorded by an undercover police officer, printouts from a website that contained photos and phone numbers, and text messages from two women that were recovered from defendant's cell phone. According to defendant, the admission of that evidence violated OEC 801 and defendant's right to confrontation under Article I, section 11, of the Oregon Constitution. We conclude that the trial court's admission of the text messages sent from one of the women to defendant was error requiring that we reverse defendant's convictions and remand for a new trial.
Because defendant was found guilty by a jury, we state the facts in the light most favorable to the state. State v. McDonnell, 313 Or. 478, 480, 837 P.2d 941 (1992). On May 4, 2010, Officer Miller was working undercover as a decoy on a prostitution sting in Portland. While Miller was at a bus stop, Foster and her passenger, defendant, drove up to Miller and asked her if she needed a ride. Miller recorded the conversation that ensued between Miller, Foster, and defendant. Based on her training and experience, Miller concluded that defendant was trying to recruit her to work as a prostitute. Miller contacted officers Hertzler and Kula, who were also in the area, and they subsequently arrested defendant on the charge of promoting prostitution. During the arrest, Hertzler seized a cell phone from defendant's pocket. Kula also seized two cell phones from the vehicle that Foster was driving, one of which he later determined belonged to Foster. After obtaining a search warrant, Kula [265 Or.App. 153] searched all three phones. He discovered a series of text messages between defendant and Foster, as well as text messages between defendant and a second woman and pictures of women in suggestive poses. The pictures led Kula to an escort service website which contained pictures of Foster in suggestive poses.
At trial, the state introduced the following text-message exchanges between defendant and Foster:
March 10, 2010
Foster: " I'm at Chestnut Tree Hotel, Room 16. Call when ...