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State v. Hartley

Court of Appeals of Oregon

November 22, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MARTIN LUTHER HARTLEY, Defendant-Appellant.

          Argued and submitted September 6, 2016.

         Multnomah County Circuit Court 131236011; Karin Johana Immergut, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael S. Shin, Assistant Attorney General.

          Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge. [*]

         Case Summary:

         A jury found defendant guilty of second-degree assault with a firearm and unlawful use of a weapon based on allegations that he shot the victim with a rife. On appeal, defendant assigns error to the trial court's ruling that allowed police officers to testify that the victim's girlfriend told them that defendant had shot the victim, because those statements are inadmissible hears a y.

         Held:

         The trial court erred in admitting the officers' testimony because the statements were not statements of identification under OEC 801(4)(a)(C). The error was not harmless.

         Reversed and remanded.

         [289 Or.App. 26] DEHOOG, P. J.

         A jury found defendant guilty of second-degree assault with a firearm and unlawful use of a weapon based on allegations that he shot the victim with a rife. On appeal, defendant raises eight assignments of error. We discuss only defendant's second and third assignments, in which he asserts that the trial court erred in allowing police officers to testify that the victim's girlfriend told them that defendant had shot the victim, because those statements are inadmissible hearsay. Because we conclude that the trial court erred in admitting that testimony and that the error was not harmless, we reverse and remand.[1]

         To place defendant's evidentiary objection in context, we start by recounting the testimony presented at trial. Defendant, the victim, and the victim's girlfriend, Chanthavong, are friends who have known each other for several years. Defendant lived in a small camper trailer located behind another individual's house. One evening, Chanthavong and the victim arranged through text messages to visit defendant and his girlfriend. According to Chanthavong, someone else may have been outside the trailer when they arrived. Due in part to the effects of methamphetamine, however, she did not recall focusing on anyone else who may have been present.

         Upon entering the trailer, the victim and Chanthavong sat down, while defendant's girlfriend stood nearby and defendant remained standing in the open doorway. While standing there, defendant confronted the victim about Christmas presents that had been taken from a car. As the two of them spoke, Chanthavong heard something that to her sounded like a shot from a BB gun. She did not immediately recognize what had happened, but realized that the victim was hurt when he bent over and grabbed her arm, saying "ow, ow, " and then began to hop on one leg.

         At trial, Chanthavong made it clear that she "didn't see actually who shot [the victim], like who actually pulled the trigger." She explained that her focus had been [289 Or.App. 27] on defendant's girlfriend and that she, therefore, had only heard the shot.

         The victim immediately left the trailer with Chanthavong, who helped him get to their car. Before reaching the car, Chanthavong saw defendant carrying a gun. He appeared angry and was telling them to leave. Chanthavong drove off with the victim and stopped at a nearby gas station, where she saw blood on the victim's shin and attempted to wrap his ...


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