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State v. Iseli

Court of Appeals of Oregon

July 25, 2018

STATE OF OREGON, Plaintiff-Appellant, Cross-Respondent,
v.
CHAD ALLEN ISELI, Defendant-Respondent, Cross-Appellant.

          Argued and submitted April 24, 2018

          Lane County Circuit Court 15CR 4 4 279 Charles M. Zennaché, Judge.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for appellant-cross-respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Erica Herb, Deputy Public Defender, argued the cause for respondent-cross appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         On appeal, reversed and remanded. Cross-appeal dismissed.

         Case Summary: In this pretrial criminal appeal, the state challenges the trial court's denial of its motion in limine to admit certain out-of-court statements of the victim under the forfeiture-by-wrongdoing exception to the hearsay rule, OEC 804(3)(g). On cross-appeal, defendant challenges the trial court's ruling permitting the state to introduce evidence at trial regarding the structure and general beliefs of the motorcycle gang of which defendant was a member. Held: The Court of Appeals declines to exercise its discretion to address defendant's cross-appeal because the issues raised on cross-appeal would be better addressed in the context of a developed trial record, and because the defendant will have the opportunity to appeal the ruling in question if he is ultimately convicted of the criminal offenses with which he is charged. With respect to the application of the forfeiture-by-wrongdoing exception to the hearsay rule, where a defendant, by wrongful conduct, has intentionally procured a witness's absence from trial, [293 Or.App. 28] that intentional conduct by the defendant is an important consideration in determining what the state is reasonably required to do to secure the witness's attendance. Here, the state exhausted all reasonable measures for securing the victim's attendance at trial. Accordingly, the trial court erred in denying the state's motion in limine to admit the victim's out-of-court statements at trial.

         On appeal, reversed and remanded. Cross-appeal dismissed.

          [293 Or.App. 29] HADLOCK, P. J.

         This pretrial appeal raises the issue of when a witness is "unavailable" for purposes of the forfeiture-by-wrongdoing exception to the hearsay rule, OEC 804(3)(g). In this criminal prosecution, defendant has been charged with domestic violence crimes of assault, strangulation, menacing, coercion, and kidnapping. After the victim failed to appear for trial, the state moved in limine to admit certain of her out-of-court statements, relying on the forfeiture-by-wrongdoing exception to the hearsay rule. Although the trial court found that the state had done "everything that [it] possibly could short of [seeking] a material witness warrant for [the victim] to get her to be" at trial and that the victim had refused to comply with the state's subpoena as a result of defendant's wrongful conduct, the court concluded that the hearsay exception did not apply because the state had not demonstrated that the victim was "unavailable," as OEC 804(3) requires. Accordingly, the trial court entered an order denying the motion in limine. The state appeals. As explained below, we agree with the state that the trial court erred and, accordingly, we reverse and remand on the state's appeal.

         We also briefly address the cross-appeal that defendant has filed challenging a different pretrial evidentiary ruling of the trial court. In particular, defendant asserts in his cross-appeal that the court erred in ruling that the state would be permitted to introduce evidence at trial regarding the structure and general beliefs of the motorcycle gang of which defendant was a member. However, because the issues raised in defendant's cross-appeal would be better addressed in the context of a developed trial record, and because defendant will have the opportunity to appeal the ruling in question if he is ultimately convicted of the criminal offenses with which he is charged, we decline to exercise our discretion to address defendant's cross-appeal. See State v. Shaw, 338 Or. 586, 617-18, 113 P.3d 898 (2005) (explaining that appellate court has discretion to review an intermediate decision of the trial court on a defendant's cross-appeal from a state's interlocutory appeal and observing that "a defendant has the full opportunity to appeal any intermediate adverse [293 Or.App. 30] trial court ruling if that defendant is convicted of a criminal offense"). Accordingly, we dismiss the cross-appeal. See id. at 620 (so disposing of the defendant's cross-appeal).

         The following facts are undisputed for purposes of this appeal. Defendant is a member of the Mongols Motorcycle Club, which a detective described as an "outlaw" motorcycle gang. The charges against defendant are based on an incident involving defendant and the victim, who had been in a romantic relationship for several months. The victim found documentation relating to defendant's abuse of other women and confronted him about it. Defendant responded by choking the victim, reminding her that he was a Mongol, and asserting that she "needed to watch [her] * * * mouth." During the prolonged assault that followed, defendant kicked the victim in the ribs, spat in her face, hit her on the head, and dragged her down the stairs and outside by her hair. Defendant told the victim to "look around" and "make sure [she had] a good view because he was going to kill" her and "it was the last time that [she would] be able to see anything." He then locked the victim in a trailer for a period of time and, when he came back, beat the victim with a broom handle on her face, back and legs. He also burned her leg and kicked her. Defendant again reminded the victim of his membership in the Mongols, telling her that he was the acting president of the club and that, if she went to the police, "he had a huge area that he could dig a hole and bury [her] in." He said that no one would ever find her.

         Defendant then locked the victim in the trailer for hours while he went to a Mongols meeting. When he returned, he continued assaulting the victim and threatening to kill her. At some point during the incident, defendant told the victim that he was going to take several things from her house that he had given her. After the victim responded that he couldn't do so unless the police were present, defendant called her a "snitch" and a "rat," repeatedly reminding her that he was a Mongol; members of the Mongols view "rats" or "snitches" as "the lowest form of life."

         Defendant eventually released the victim, who went to the hospital and also made several calls to 9-1-1. During those calls, the victim repeatedly said that defendant was [293 Or.App. 31] part of the Mongols gang and had threatened to kill her if she spoke to police. The victim expressed fear of defendant as a result of his threats to kill her and also said that she was hiding because members of the gang were looking for her. When a dispatcher told the victim that deputies would come to the hospital, the victim asked that no police come to the hospital. She asked that they call her instead and said again that defendant was a Mongol and was going to kill her.

         As a result of that incident, defendant was indicted on two counts of fourth-degree assault, one count of strangulation, one count of menacing, one count of coercion, one count of second-degree assault, and two counts of first-degree kidnapping. On the day that jury selection was to begin for defendant's trial, the state alerted the court that the victim had been served with a subpoena but had not appeared. The state asked to "go forward without her." It asked the court to admit the statements that the victim had made to law enforcement officers and dispatchers and requested "pretrial rulings on her unavailability and *** [the] forfeiture by wrongdoing exception under *** 804(3)(g)."

         The rule cited by the state is a part of OEC 804(3), which broadly governs the admissibility of out-of-court statements made by a declarant who is "unavailable as a witness." Under paragraph (g) of that rule, a declarant's hearsay statements are admissible against a party "who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable." OEC 804(3)(g); see State v. Supanchick, 354 Or. 737, 739, 323 P.3d 231 (2014). For that rule to apply, it is not necessary that the party's wrongful conduct have been directed solely at making the witness unavailable. Rather, the rule may apply even when only "one purpose for [a defendant's wrongful act] was to make [a declarant] unavailable as a witness." Id. at 749. In such a circumstance, "the trial court could find that [the] defendant intended to make [the witness] unavailable, as OEC 804(3)(g) requires." Id. Thus, for the victim's hearsay statements to be admissible under [293 Or.App. 32] OEC 804(3)(g), the state had to show that (1) defendant engaged in wrongful conduct, (2) that wrongful conduct was intended (at least in part) to cause the victim to be unavailable as a witness, and (3) the wrongful conduct did, in fact, cause the victim to be unavailable. "In this context, [w]hat defendant intended is a question of fact" for the trial court, and we are bound by that court's factual findings if there is evidence in the record to support them. Supanchick, 354 Or at 744-45.

         The court held a hearing and heard evidence on whether the forfeiture-by-wrongdoing exception applied. It then made findings with respect to both the state's efforts to ensure that the witness appeared for the trial and the question whether defendant's ...


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