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State v. Davis

Court of Appeals of Oregon

April 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN RICHARD DAVIS, Defendant-Appellant.

          Submitted August 23, 2016.

          Douglas County Circuit Court 06CR1271FE; William A. Marshall, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Frederick M. Boss, Deputy Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction for two counts of first-degree rape, ORS 163.375. He assigns error to the trial court's admission into evidence of online and recorded conversations between the victim and himself. In those conversations, the victim accused defendant, and he made general statements of wrongdoing. He also told the victim that he would only discuss the details of her allegations in person and referred to having retained an attorney. Defendant argues that the victim's statements during those conversations were inadmissible hearsay not subject to any exception, OEC 802, and that the probative value of the conversations was substantially outweighed by the danger of unfair prejudice, OEC 403. Held: The trial court did not err, because it did not admit the victim's statements for their truth, but as necessary context for defendant's relevant, admissible statements. And the trial court did not abuse its discretion in admitting the conversations under OEC 403.

         [291 Or.App. 147] DEHOOG, P. J.

         Defendant appeals his judgment of conviction for two counts of first-degree rape, ORS 163.375. He assigns error to the trial court's admission into evidence, over his hearsay and OEC 403 objections, of online and recorded conversations between the victim and himself.[1] In those conversations, defendant made arguably ambiguous statements of wrongdoing and told the victim that he would only discuss the details of her accusations in person; he also referred to having retained an attorney. He argues that (1) the victim's statements during the conversations were inadmissible hearsay not subject to any exception, OEC 802, and (2) the probative value of both the victim's and his own statements was substantially outweighed by the danger of unfair prejudice, OEC 403. We conclude that the victim's statements were not hearsay because they were not admitted for their truth but as necessary context for relevant, admissible statements by defendant; we further conclude that the trial court did not abuse its discretion under OEC 403 in admitting either the victim's or defendant's statements. We therefore affirm.

         The following factual and procedural history is undisputed for purposes of appeal. In 2003, the victim, age 17, told a friend, M, that defendant, who was for a time her stepfather, had sexually abused her for over a decade. M persuaded the victim to report the abuse to an adult, who in turn notified the police. When the police subsequently contacted defendant, he retained an attorney; defendant was not, however, arrested or charged with any crime at that time. Six months later, defendant contacted the victim through online text messages. She notified a police officer, who encouraged her to continue communicating with defendant as a pretext to obtain evidence against him. In the months that followed, [291 Or.App. 148] the victim used the officer's computer to chat with defendant by text and spoke with defendant over the phone while police recorded their conversations. The communications were eventually admitted into evidence in their entirety: 23 double-spaced pages of chat messages, spanning more than two months, together with two half-hour telephone recordings.

         Defendant initially obtained an order suppressing his own statements on the grounds that the police had violated his right against self-incrimination and right to counsel under the Oregon Constitution. The Supreme Court subsequently held that the statements were constitutionally admissible, but did not address their admissibility under the Oregon Evidence Code. See State v. Davis, 350 Or. 440, 256 P.3d 1075 (2011) (Davis I). On remand following that decision, defendant filed a motion in limine, challenging as inadmissible hearsay the "pretext" communications between the victim and defendant. He argued that the victim's statements during the conversations were hearsay because they were out-of-court assertions offered to prove the truth of the matter asserted, OEC 801(3), and did not fall within the "adoptive admission" hearsay exclusion, which renders a statement admissible against a party when "the party has manifested the party's adoption or belief in its truth, " OEC 801(4)(b)(B). Defendant also objected under OEC 403, arguing that "the probative value of the challenged recorded pretext communications, [which] is that the defendant failed to deny allegations of misconduct during those communications, has only marginal relevance, but a great likelihood that such silence would be misused by the jury in a manner that would substantially prejudice the defendant, " especially in light of defendant's recorded references to having hired an attorney.

         The trial court ruled that both the text and recorded phone conversations were admissible, but that the victim's statements would be admitted only as context, not for their truth as adoptive admissions by defendant. Regarding defendant's argument that the evidence was unduly prejudicial under OEC 403, the court reasoned that defendant's refusal to respond to some of the victim's statements over the phone indicated consciousness of guilt, and that the conversations as a whole did not create unfair prejudice:

[291 Or.App. 149] "[Defendant] is making an assertion, one of which I recall is of the nature, I'm not going to talk to you about this on the phone; I'm willing to talk to you about this in person. And, thus, awareness that there is in fact-and there's some statement indicating awareness that he might well be recorded on the telephone and would not be recorded in person, an unwillingness to subject himself to that. The inference is clearly there. That's relevant. That's consciousness of some guilt on his part. It is relevant. The State-it's a balancing test. The State is in need of the evidence. Yeah, it's-it has some weight against the Defendant, but it's not unfairly prejudicial in the Court's view."

         The court stated that the evidence would be admitted "contingent upon the State proposing an appropriate cautionary instruction" to make clear that the jury could not consider the victim's statements for their truth.

         The state introduced the conversations through the investigating officer, who explained that, in a pretext conversation, an alleged victim will refer to the allegation "in a context or in a way that will hopefully induce the suspect to either affirm it or not deny it or flat out refute it." Defendant objected when the state offered that evidence, referencing his motion in limine. The court instructed the jury that the victim's statements were presented only as context:

"You're not to consider the truthfulness of those statements in your deliberation. They are just there for explanation of the context, and you're not to consider the truthfulness of them. They're admitted not for the truth of the assertions made by [the victim] but as for purposes only of seeing [defendant's] response, and that's the reason for their admission."

         The officer read into evidence part of defendant's text conversation with the victim:[2]

"[VICTIM]: maybe we could hang out while you're here?
"[DEFENDANT]: yeah if you are comfortable with that I like to see you
[291 Or.App. 150] "[VICTIM]: yeah...I think it'd be cool...I miss you...no sex though...we did enough of that...hehe
"[DEFENDANT]: I not gonna answer that brat, lol
"[VICTIM]: we gotta be able to joke about sometime...I'm ok with everything now...
"[DEFENDANT]: lol yeah
" [VICTIM]: so you'd be ok with just hanging out
"[DEFENDANT]: yeah why not we use to just hang out too
"[VICTIM]: yeah, but a lot of time that we hung out there was other sexual stuff going on and I wanted to make sure that part of our relationship was over...b ...

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