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State v. Noorzai

Court of Appeals of Oregon

June 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
HEWAD NOORZAI, Defendant-Appellant.

          Submitted February 21, 2017

          Washington County Circuit Court D143973M Eric Butterfeld, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Nathan Riemersma, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary:

         Defendant 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.

         Held:

         The 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.

         Conviction for fourth-degree assault constituting domestic violence reversed and remanded; otherwise affirmed.

         [292 Or. 249] DEHOOG, P. J.

         Defendant 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.[1]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.

         At 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.

         At the 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 ...


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