Submitted February 21, 2017
Washington County Circuit Court D143973M Eric Butterfeld,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erin J. Snyder Severe, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Nathan Riemersma, Assistant Attorney General,
filed the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
appeals a judgment of conviction for fourth-degree assault
constituting domestic violence. Defendant assigns error to
the trial court's pretrial ruling that a recorded 9-1-1
call was admissible at trial.
trial court erred in admitting the recording because the
state did not provide sufficient evidence to establish its
authenticity under OEC 901. Even though there was evidence to
support the finding that the recorded 9-1-1 call was the
9-1-1 call placed by the complainant, the record did not
support the finding that the recording itself was an accurate
recording of the call. The error in admitting the evidence
was not harmless.
for fourth-degree assault constituting domestic violence
reversed and remanded; otherwise affirmed.
Or. 249] DEHOOG, P. J.
appeals a judgment of conviction entered following a bench
trial in which the trial court found him guilty of
fourth-degree assault constituting domestic violence.
Defendant assigns error to the court's pretrial ruling
that a recorded 9-1-1 call would be admitted at
trial.We conclude that, even though there was
evidence in the record to support the finding that the
recorded 9-1-1 call was the 9-1-1 call placed by the
complainant, the record does not support the finding that the
recording itself was an accurate recording of the
call. As a result, the evidence was insufficient to establish
the authenticity of the recording under OEC 901, and the
trial court erred in admitting it. Furthermore, because the
9-1-1 call was qualitatively different from the state's
other evidence, the error in admitting that evidence was not
harmless. We therefore reverse and remand.
trial, the court received the following evidence, most of
which came in through testimony at a pretrial hearing
regarding the complainant's unavailability to testify and
through her medical records. Officer Matsukado of the
Beaverton Police Department testified that he had responded
to an incident involving the complainant and defendant on
November 9, 2014. During his investigation, Matsukado
confirmed that the complainant's address was the same as
the address to which dispatch had sent him in response to a
9-1-1 call. According to Matsukado's log, he responded to
the incident at approximately 4:00 p.m. When he arrived,
paramedics were present and administering aid to the
complainant; Matsukado subsequently followed them to the
hospital to conduct an interview. In addition to interviewing
the complainant, Matsukado took photographs of her abdomen.
pretrial hearing, the state played the disputed 9-1-1
recording. A voice on the recording states the date and time
as November 9, 2014, at 15:53:56. A caller [292 Or. 250]
tells the 9-1-1 operator that her fiance has hit her hard in
the stomach. The caller also gives her address, which other
evidence at trial showed to be the address of the complainant
in this case. The caller repeatedly says that, when she
returned home from school, her fiance hit her in the stomach.
She also reports having difficulty breathing. The caller
identifies her attacker as her fiance, provides his name,
describes his appearance, and tells the operator his
nationality and date of birth. Evidence later introduced at
trial substantiated that defendant was the individual whom
the caller had identified as her assailant. Finally, the name
that the caller gave as her own was ...