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State v. Ragibov

Court of Appeals of Oregon

June 24, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
DZHAMAL KASNOVICH RAGIBOV, aka Dzhamal K. Ragibov, Defendant-Appellant

April 28, 2015, Submitted

120849431. Multnomah County Circuit Court. Steven R. Evans, Judge.

Vacated and remanded.

Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Senior Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION BY: DUNCAN

OPINION

Page 1248

[272 Or.App. 23] DUNCAN, P. J.

In this criminal case, defendant was charged with one count of driving under the influence of intoxicants (DUII), ORS 813.010; one count of reckless driving, ORS 811.140; and two counts of criminal mischief in the second degree, ORS 164.354. The charges were based on a three-car accident. The state contended that defendant was the driver of a car that rear-ended a second car, which, in turn, rear-ended a third car. Defendant contended that he had not been driving, his wife had. The trial court excluded evidence that defendant's wife had told three medical treatment providers that she had been driving, and a jury convicted defendant. Defendant appeals, assigning error to the trial court's exclusion of the evidence. For the reasons explained below, we vacate the trial court's judgment and remand for further proceedings.

Prior to trial, defendant moved to admit medical records to show that his wife had told three different medical treatment providers who examined her on the day of the accident that she had been the driver. The state stipulated that the medical records themselves were admissible as business records. See OEC 803(6). As a result, the evidentiary issue before the trial court was whether the statements by defendant's wife that were documented in the records were admissible. The statements are hearsay, in that they are out-of-court statements that defendant sought to have admitted to establish the truth of the matter asserted: that his wife was the driver. See OEC 801(3) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ). As such, they could be admitted only pursuant to an

Page 1249

exception to the hearsay rule. See OEC 802 (hearsay is not admissible unless an exception applies). Defendant argued that the statements were admissible under OEC 803(4), which provides for admission of hear-say statements made for purposes of medical diagnosis and treatment. The trial court denied defendant's motion. As an offer of proof, defendant submitted the medical records.[1]

[272 Or.App. 24] The case proceeded to a jury trial, where the parties contested whether defendant had been the driver.[2] Defendant and his wife testified that she had been the driver, and defendant introduced evidence that, after his wife was treated at the scene and the hospital, she spoke to a police officer and told him that she had been the driver. No evidence regarding what defendant's wife said to medical providers was admitted.[3] The state challenged the credibility of defendant and his wife and presented a witness who identified defendant as the driver at the scene. But the witness, who had been a passenger in one of the cars involved in the accident, testified that, when he made his observations, he was " [n]ot really" able to see defendant's car clearly because he was " dizzy from the impact" and that, at the time of trial, he did not remember the accident very well. ...


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