Argued and submitted May 30, 2014.
Josephine County Circuit Court 11CR0002. Pat Wolke, Judge.
Anne K. Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services.
Peenesh Shah, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[270 Or.App. 24] NAKAMOTO, J.
Defendant appeals a judgment convicting him of first-degree rape, ORS 163.375, raising three assignments of error. At defendant's trial, over defendant's objection, the trial court allowed the state to discuss and introduce evidence of text messages that the victim sent to defendant at the police's request, as well as defendant's nonresponse to those messages. In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress that evidence, arguing that the state's use of his silence as substantive evidence at trial violated his right to remain silent under Article I, section 12, of the Oregon Constitution. In his second assignment of error, defendant argues that the trial court erred in admitting the text messages and defendant's nonresponse to the messages as adoptive admissions under OEC 801(4)(b)(B). We reject without discussion defendant's third assignment of error, in which he argues that the trial court erred in instructing the jury that it could find him guilty by a non-unanimous verdict. State v. Cobb, 224 Or.App. 594, 198 P.3d 978 (2008), rev den, 346 Or. 364, 213 P.3d 578 (2009). For the reasons below, we affirm.
We review the denial of a motion to suppress for legal error and are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). When reviewing a trial court's evidentiary ruling that a statement fits within an exception to the hearsay rule, we apply a two-part standard of review. State v. Cook, 340 Or. 530, 537, 135 P.3d 260 (2006). We will uphold the trial court's preliminary factual findings for any evidence, but we review the trial court's ultimate legal conclusion about whether the hearsay statement is admissible for legal error. Id.
Defendant was charged with first-degree rape of the victim. The victim was a friend of defendant's who, to avoid driving while intoxicated after a New Year's Eve celebration, spent the night on defendant's couch. Other people were staying at the house that night, including defendant's girlfriend, Wanke. After everyone had gone to bed, defendant went downstairs and sexually assaulted the victim.
[270 Or.App. 25] Later that morning, the victim exchanged text messages with Wanke and spoke with her on the phone. Eventually, the victim told Wanke that she had woken up to defendant raping her. In a text message to the victim, Wanke wrote, in part, that defendant " said he bla[c]ked out[.] *** [H]e wanted to know if you are going to the cops[.]" The victim did contact the police, and later that evening, she spoke with Detective Myers on the phone. Myers asked if the victim would send defendant text messages. The victim agreed, and Myers instructed her on what the messages should say. The victim sent defendant two text messages that evening. The first said, " I don't understand how this happened[.] [W]e've been friends for along [ sic ] time. [W]hy did [you] do that to me?" The second said, " I really want to know why? [I don't know] what to do but I was passed out[.] [W]hat made what [you] did ok?" Defendant did not respond to either message. Defendant was later arrested and charged with first-degree rape.
Before trial, the state had given defense counsel copies of the text messages that the victim had sent defendant. However, it was not until the prosecutor's opening statement, in which the prosecutor told the jury that Myers had asked the victim to send the text messages, that defense counsel became aware of the police involvement in the messages. Upon learning that fact, defense counsel moved to suppress that evidence and for a mistrial. Defense counsel argued that, in telling the jury about defendant's non-response to the text messages, the state was impermissibly using defendant's constitutional right to remain silent against him. The state responded that there was no constitutional violation because the text messages, from the perspective of defendant, had come from a woman whom he had known for years; it was not a situation in which defendant [270 Or.App. 26] had told the detective that he was not talking to the police. The trial court denied defendant's motions, ruling that it was not significant that the text messages were sent at the request of the police.
Defendant maintained his objections during the state's direct examination of the victim. The victim testified that Myers had asked her if she would send text messages to defendant's phone and that she had agreed to do so. She further testified that Myers had told her what to say in the messages. The prosecutor then had her describe the content of the first text message, and she testified that she received no response. The prosecutor followed the same line of questioning for the second text message. The victim then said several more times that defendant had not responded after relating that, at the time of the assault, she and her husband had been
friends with defendant for six years and that she had spent time with defendant as a friend. The prosecutor returned to the text messages a final time after the court admitted two photographs of the messages, and the victim repeated that defendant had not responded to them. Defendant objected at each juncture.
At that point, after the jury left the courtroom, the court addressed defense counsel's objections to the victim's testimony about the text messages:
" THE COURT: Alright, I've been assuming that the objection to the text messages and the non response has been on the same basis as what was discussed earlier outside the presence of the jury, but I, I, it occurs to me that I should probably ask and ...