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State v. Ambriz-Arguello

Court of Appeals of Oregon

May 17, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MAURICIO AMBRIZ-ARGUELLO, Defendant-Appellant.

          Argued and Submitted February 9, 2016

         Washington County Circuit Court C122756CR Suzanne Upton, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary: Defendant appeals a judgment of conviction for multiple counts of various sex crimes, assigning error to the trial court's admission of an interpreter's out-of-court statements translating defendant's statements in Spanish into English. The trial court ruled that the interpreter's English translations were admissible as statement's of a party opponent offered against that party, OEC 801(4)(b)(A), because defendant-not the interpreter-remained the declarant. Defendant contends that the interpreter's English translations added an additional layer of hearsay, and that those statements were inadmissible under any exception to the rule against hearsay. Held: The trial court erred in admitting the interpreter's English translations as statements of a party opponent pursuant to OEC 801(4)(b)(A). That ruling cannot be reconciled with State v. Montoya-Franco, 250 Or.App. 665, 669, 282 P.3d 939, rev den, 352 Or 666 (2012), in which we held that an "out-of-court translation of a non-English speaker's statements to a third party constitutes hearsay because the interpreter's translation constitutes an assertion of the English meaning of the original translation." Moreover, that error was not harmless.

         Reversed and remanded.

          TOOKE Y, J.

         Defendant appeals a judgment of conviction for three counts of first-degree rape, ORS 163.375; one count of first-degree sodomy, ORS 163.405; one count of second-degree sodomy, ORS 163.395; and four counts of first-degree sexual abuse, ORS 163.427. Defendant raises two assignments of error. In his first assignment of error, defendant argues that the trial court erred by admitting into evidence an interpreter's out-of-court statements translating defendant's statements in Spanish into English. In his second assignment of error, defendant argues that the trial court erred by denying his motion to suppress evidence; we reject that assignment without discussion. For the reasons that follow, we reverse and remand based on defendant's first assignment of error.

         Defendant was arrested after his stepdaughter, A, reported that defendant had been sexually abusing her for several years. During a recorded interview with a detective at a police station, defendant was offered and accepted the aid of a police interpreter. Throughout the interview, defendant spoke in Spanish, and the police interpreter translated his statements to the detective in English. In the interview, defendant stated that, when A was nine years old, she took defendant's hand and put it on her vaginal area, and that A did the same thing three other times "two years ago, " when A was twelve. Defendant stated that he had confessed to his church pastor and acknowledged that he may have hurt A mentally.

         Prior to trial, defense counsel raised a hearsay objection to all out-of-court translations of defendant's statements by the police interpreter. Defense counsel argued that, while defendant's statements in Spanish qualify as statements of a party opponent, the interpreter's English translations of his statements added an additional layer of hearsay that must qualify under a valid exception in order to be admissible. The prosecutor responded that the interpreter's translated statements were not hearsay. The prosecutor contended that, because the interpreter was merely "translating from one language into another, " the interpreter's statements were the mirror image of defendant's statements translated "in a way that the jury can understand it." The prosecutor argued in the alternative that, should the trial court find that the interpreter's translations were a separate hearsay statement, then the translations would be admissible under the residual exception to the hearsay rule. See OEC 8O3(28)(a). In response, defense counsel argued that the residual hearsay exception was not applicable because the state failed to comply with the residual rule's notice requirement. In concluding that the interpreter's English translations of defendant's statements in Spanish were admissible, the trial court stated:

"I think if we dealt with the-the notice issue, we could- we could get it in through the [detective's testimony] under the residual, but I definitely think that it comes in through the interpreter.
"I don't think it makes the interpreter the declarant by virtue of the fact that the interpreter, assuming that they can then establish the record of their ability to understand Spanish, then by virtue of their knowledge of the words in English that equal the words that the defendant was saying in Spanish becomes a declarant.
"The defendant is the declarant. And because the defendant is the defendant and the party opponent, words can be offered against him. And so that would not be hearsay because of that analysis, so [the interpreter's translations] would be admissible."

         At trial, A testified and recanted her previous allegations that defendant had sexually abused her. The detective who initially interviewed A also testified regarding his interview of A at her school, where A reported that defendant had been sexually abusing her. A told the detective that, when she was 12, she told her mother about the abuse, but that her mother and her godparents convinced A that it "was just a dream [and] that it didn't really happen."

         Before admitting evidence of defendant's statements made during the police interview, the state called the interpreter to testify regarding her qualifications as an interpreter. The interpreter testified that she started learning Spanish at the age of seven, and that she studied Spanish throughout grade school, high school, and college. The interpreter also testified that she studied abroad at a university in Mexico and was certified by the City of Beaverton as a Spanish interpreter. The interpreter further testified that, in the nine years since becoming certified with the City of Beaverton Police Department, she has interpreted "hundreds" of times and is 98 percent fluent in Spanish. The interpreter testified that she reviewed the audio-video recording and transcript of the interview with defendant in which she had acted as translator and confirmed the accuracy of her translation. Over defendant's hearsay objection, the trial court admitted the audio-video recording and transcript of defendant's interview at the police station. As noted, the jury found defendant guilty of three counts of first-degree rape, one count of first-degree sodomy, one count of second-degree sodomy, and four counts of first-degree sexual abuse.

         In his first assignment of error, defendant argues that the trial court erred in admitting the audio-video recording and transcript containing the interpreter's English translations of defendant's statements (the interpreter's English translations), because those translations amounted to inadmissible hearsay. Defendant concedes that, if offered without translation, his statements in Spanish were admissible under OEC 8Ol(4)(b)(A), which provides that a "party's own statements" offered against that party are not hearsay. However, defendant contends that the interpreter's English translations of his statements added an additional layer of hearsay, and that those statements were not admissible under any exception to the rule against hearsay. In response, the state contends, for the first time, that the trial court did not err because the interpreter was acting as either defendant's representative or agent and, thus, the interpreter's English translations were admissible nonhearsay.

         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." OEC 801(3). As previously noted, the state argued at trial that the interpreter's English translations of defendant's statements in Spanish were not hearsay, and the trial court agreed, ruling that the interpreter's English translations were admissible because defendant-not the interpreter- remained the declarant. That ruling cannot be reconciled with State v. Montova-Franco. 250 Or.App. 665, 669, 282 P.3d 939, rev den, 352 Or 666 (2012), in which we held that an "out-of-court translation of a non-English speaker's statements to a third party constitutes hearsay because the interpreter's translation constitutes an assertion of the English meaning of the original translation." See also State v. Rodriguez-Castillo. 345 Or 39, 46, 188 P.3d 268 (2008) (holding that a translated statement constituted double hearsay and, as a result, was admissible only if the state could show that the translations "either came within an exception to the hearsay rule or did not constitute hearsay").

         On appeal, the state does not defend the trial court's ruling that the interpreter's English translations were admissible under OEC 8Ol(4)(b)(A), which provides that a party's own statement offered against that party is not hearsay. Rather, the state's only argument on appeal is that we should affirm the admission of the interpreter's English translations pursuant to OEC 8Ol(4)(b)(C) and (D), which provide that a statement is not hearsay if the statement is offered against a party and is made by "the party's agent, " or if the statement is made "by a person authorized by the party to make a statement concerning the subject." However, because the state did not argue either of those theories below, we are not in a position to conclude that the interpreter's English translations were admissible on the basis of OEC 8Ol(4)(b)(C) or (D). See Outdoor Media Dimensions Inc. v. State of Oregon. 331 Or 634, 659-60, 20 P.3d 180 (2001) (appellate courts may not rely on an alternate ground for upholding a trial court's ruling when the record either is not adequate or would have been developed differently if the alternate ground had ...


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