and Submitted October 29, 2014
County Circuit Court 120733133; A153987 Kelly Skye, Judge.
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.
Peenesh H. 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
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
Egan, Judge. [*]
Or.App. 136] Case Summary:
appeals a judgment of conviction for attempted murder (Count
1); attempted assault in the first degree (Count 2); unlawful
use of a weapon (Count 3); failure to perform the duties of a
driver when property is damaged (Count 5); and unlawful
possession of a firearm (Count 6). Defendant assigns error to
the trial court's denial of his demurrer to the
indictment based on the improper joinder of charges under ORS
132.560(1)(b), arguing that the indictment failed on its face
to meet any of the three joinder requirements under that
statute. He also assigns error to the trial court's
admission as evidence of the recorded police interviews of
two witnesses under OEC 803(5), the past recollection
recorded exception to the hearsay rule. Held: The trial court
erred by denying defendant's demurrer. Counts 5 and 6
were not properly joined with Counts 1 through 3 in the
indictment because they were not of the same or similar
character, based on the same act or transaction, nor part of
a common plan or scheme. That error was not harmless with
respect to Counts 5 and 6. The trial court also erred by
admitting the recorded police interviews of two witnesses
under OEC 803(5) because the recorded statements were not
made or adopted by the witnesses, and that error was not
harmless with respect to defendant's convictions on
Counts 1 through 3.
on Counts 1, 2, and 3 reversed and remanded; convictions on
Counts 5 and 6 reversed; otherwise affirmed.
appeals a judgment of conviction for attempted murder (Count
1), ORS 163.115; attempted assault in the first degree (Count
2), ORS 163.185; unlawful use of a weapon (Count 3), ORS
166.220; failure to perform the duties of a driver when
property is damaged (Count 5), ORS 811.700; and unlawful
possession of a firearm (Count 6), ORS 166.250. Defendant assigns
error to the trial court's denial of his demurrer to the
indictment based on improper joinder of charges. We conclude
that Counts 5 and 6 were not properly joined in the
indictment with Counts 1 through 3 and, thus, the trial court
erred in denying defendant's demurrer. However, that
error was not harmless with respect only to Counts 5 and 6,
and we therefore reverse only those counts. Defendant also
contends that the trial court erred in admitting police
recordings of two witnesses' statements as evidence under
OEC 803(5),  the past recollection recorded exception
to the hearsay rule (OEC 802). We conclude that, because the
two witnesses did not "make or adopt" their
recorded statements, the trial court erred in admitting the
recordings under OEC 803(5) and that error was not harmless
with respect to defendant's convictions on Counts 1, 2,
and 3. We reject defendant's other assignment of error
without discussion. Accordingly, we reverse and remand the
convictions on Counts 1, 2, and 3, and we reverse the
convictions on Counts 5 and 6. Otherwise, we affirm.
apply a two-part standard of review to a trial court
evidentiary ruling that a statement fits within an [287
Or.App. 138] exception to the hearsay rule. State v.
Cunningham. 337 Or. 528, 538-39, 99 P.3d 271 (2004). We
will uphold the trial court's preliminary factual
determinations if any evidence in the record supports them.
Id. at 537. However, we review for legal error the
trial court's ultimate legal conclusion on whether the
hearsay statement is admissible under an exception to the
hearsay rule. Id. at 538. Also, in the absence of
express findings, we generally presume that the trial court
decided disputed factual issues consistently with its
ultimate conclusion. Ball v. Gladden, 250 Or. 485,
487, 443 P.2d 621 (1968). We set out the facts in accordance
with that standard.
FACTS AND PROCEDURAL BACKGROUND
girlfriend was at a family party when she showed her
grandmother her new car. When the grandmother went outside to
look at the car, defendant was standing nearby with two of
his friends-Brown and Ritmiller. Defendant and the
grandmother began to argue. Then the grandmother walked away
toward the house while defendant "yell[ed] and
cuss[ed]" at her. When the grandmother returned to the
house, she told her grandson, Royal, what had happened, and
Royal left the house to talk to defendant.
grandmother heard Royal and defendant yelling at each other
angrily. Then she heard Royal say, "He got a gun.
He's getting ready to shoot." One shot was fired.
The grandmother saw Royal running toward the house and
defendant "standing up like he had [a gun] in his hand,
" but she could not determine whether defendant was
shooting at Royal or firing a warning shot. Defendant and his
two friends, Brown and Ritmiller, got in the car and
defendant drove away.
Porath and his partner were patrolling the area near where
the gunshot was fired. They followed a white sedan that was
speeding and watched it hit a parked car before it came to a
stop. When Porath came up to the stopped car, the
driver's door was open and the driver, defendant, was
running away. The two passengers, Brown and Ritmiller,
remained inside or near the car. Porath found a [287 Or.App.
139] gun in the door panel of the car with one round in the
chamber. On the street where the shooting had occurred,
another officer found a shell casing that matched the caliber
of the round found in the gun.
night, Brown and Ritmiller were interviewed by two
Brown's Recorded Interview with Police
Brown's interview with the police, a detective told Brown
that he was a "fair" person and, if people are
being "honest" with him, he tries to do what he
can, but that, if people lead him down another direction and
waste his time, he would have to "start digging"
and "stuff like that" and that would not be
"cool." One of the detectives also asked Brown if
he was "on paper, " and Brown shook his head no. The
detective then asked Brown if he was "looking to get on
paper" and Brown again shook his head no.
asking Brown who fired the gun, the detective told Brown
repeatedly that Brown "needed to be honest with
him" and that he needed to start making some
"decisions." The detective also told Brown that
defendant had made some bad decisions, "but that what
[Brown] told the detectives could help him and it was not
going to hurt defendant any more than he was already
hurt." Brown did not identify who fired the gun.
detective then asked Brown, "[H]ow was the gun being
held?" and reiterated that Brown needed to be
"honest" with him. Brown told the detectives that
defendant had said, "On my dead homies, whoever comes
out of that house to me talking shit is going to get
busted." Brown demonstrated how the shooter shot the gun
by pointing straight ahead. The detective mimicked Brown,
pointing straight ahead, and asked Brown again if the shooter
pointed the gun like he had just demonstrated. Brown again
showed the detectives how the shooter had held the gun and
pointed his arm angled upward. Brown said that the shooter
was not trying to aim "right" because he was very
close, about 20 yards away, and he could have shot the guy.
Brown [287 Or.App. 140] demonstrated how the shooter shot the
gun one last time by pointing his fist in the air with his
elbow bent upwards.
Ritmiller's Recorded Interview with Police
police interviewed Ritmiller after Brown's interview
ended. At the start of the interview, Ritmiller explained
that he was getting his gang-affiliated tattoo removed, and
that he was trying to get out of the gang, change his
lifestyle, spend more time with his daughter, and stay out of
the way. The detective responded that Ritmiller did not stay
out of the way that night and that he was with "at least
one knucklehead." Then the detective told Ritmiller that
he was fair and that, if Ritmiller was honest, he would do
the best he could for him.
described an abbreviated version of what had happened and the
detective applied pressure to Ritmiller, saying,
"Here's your chance to prove to me, to your
[probation officer], and to everybody else that you're
trying to do the right thing. Okay? Because this could go a
bunch of different ways. I don't know whether you helped
[defendant] out on this deal that happened up there."
The detective also said that Ritmiller needed to be thinking
about himself right now and that whatever he said right now
would have more of an influence on him than on defendant.
then described what had happened that day in greater detail.
Ritmiller said that defendant had repeatedly told his
girlfriend, "Bitch, anybody come outside, I'm going
to smoke them, " and had grabbed a gun out of his car.
Ritmiller did not know how defendant was holding the gun-it
happened quickly. He saw Royal drop to the ground. Ritmiller
thought defendant had shot Royal. Ritmiller and Brown got in
the car and defendant drove it away. Ritmiller reported that
defendant had said, "I thought I popped him."
asked the detective if the detective had talked to
Ritmiller's probation officer. The detective responded,
"Not yet, " but stated that he would tell the
probation officer that Ritmiller "came around" and
gave a statement about what had happened. Before the
interview ended, the detective again stated that he would
tell Ritmiller's probation officer that he "got
along" with Ritmiller.
Or.App. 141] D. The Charges and Defendant's
was charged by indictment with attempted murder with a
firearm (Count 1), ORS 163.115; attempted assault in the
first degree with a firearm (Count 2), ORS 163.185; unlawful
use of a weapon (Count 3), ORS 166.220; obliteration or
change of identification number on firearms (Count 4), ORS
166.450; failure to perform the duties of a driver when
property is damaged (Count 5), ORS 811.700; and unlawful
possession of a firearm (Count 6), ORS 166.250. Each count
specified that defendant committed the particular crime
"on or about July 14, 2012, in the County of Multnomah,
State of Oregon." Additionally, Counts 1 through 3
specified that Royal was the victim for those charges.
waived a jury and tried his case to the court. Prior to
trial, however, defendant demurred to the indictment, which
the trial court denied. At trial, defendant did not dispute
that he had fired a gun; instead, he claimed that he had
intended to fire a warning shot that was not meant to hit
anyone. The state called Brown and Ritmiller as witnesses to
refute defendant's claim.
Brown's Testimony at Trial
testified on behalf of the state. Brown stated that he
recalled getting off a bus with Ritmiller on the day of the
shooting because defendant was going to give them a ride. He
also recalled that, after he heard one gunshot, he got into
the car but he did not know who had shot the gun. Brown also
said that, after the car stopped, he spoke to the police, but
he could not remember everything he told them because he was
under the influence of marijuana. He testified that he did
remember telling the police that the gun was not his and
describing what the gun looked like.
state then asked Brown if listening to his recorded interview
would help him refresh his recollection, and the court agreed
that Brown should listen to his recorded interview:
"[THE STATE]: Do you remember telling Officer Burley the
next person out of the house, I'm going to bust on him.
[287 Or.App. 142] "[BROWN]: Why would I tell him that I
didn't have a gun.
"[THE STATE]: Do you think it would help if you listened
to your interview that was recorded?
"[BROWN]: I already told the investigator I didn't
want to have anything to do with this.
"[THE STATE]: *** So, Your Honor, I think what we should
do at this point is take a break for today. We'll take
[Brown] to a conference room, we'll let him watch and
listen to his video, and we'll bring him back tomorrow.
"[THE COURT]: Okay.
"[DEFENSE COUNSEL]: Is that for the purposes of
refreshing his recollection?
"[THE STATE]: Yep.
"[DEFENSE COUNSEL]: Does the witness think that that
will help refresh his recollection?
"[BROWN]: I don't want anything to do with this, so
why are you guys forcing me to (indiscernible)?
"[THE COURT]: Well, I'll take this on, Mr.
court told Brown that he was there by court order, was
required to answer questions, and could be held in contempt
if he did not comply.
counsel asked that Brown listen to the recorded interview;
the state responded that it would offer the recorded
interview into evidence if it did not refresh Brown's
"[DEFENSE COUNSEL]: I would ask that [the state] have
[Brown] listen to it. That's what [the state] wanted to
do. But I don't want it on the record. It's offered
for impeachment purposes. It can't ...