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State v. Bement

Supreme Court of Oregon

November 8, 2018

STATE OF OREGON, Petitioner on Review,
v.
BRIAN DANIEL BEMENT, Respondent on Review.

          On review from the Court of Appeals. (CC C100622CR) (CA A152702) [*]

          Argued and submitted March 5, 2018, at Lewis & Clark College of Law, Portland, Oregon.

          Peenesh Shah, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

          Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, and Nelson, Justices, and Landau, Senior Justice pro tempore. [**]

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [363 Or. 761] Case Summary: Defendant argued that he shot the victim in self-defense after the victim tried to rob him. To establish the victim's motive for the robbery, defendant argued that the victim viewed himself as being in significant financial trouble and in desperate need of money. As proof, defendant offered emails that the victim wrote in the months leading up to his death in which he described his financial troubles. The trial court admitted some emails, but excluded others as hearsay. The Court of Appeals reversed. Held: (1) In determining whether a statement is hearsay, a bare factual statement is both a direct assertion of the fact and an indirect assertion that the declarant believes that fact to be true, unless context suggests otherwise; (2) a statement falls outside the state-of-mind exception as "a statement of memory or belief to prove the fact remembered or believed," OEC 803(3), if the proponent is offering the statement to prove the truth of the historical facts that the declarant believed.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

          [363 Or. 762] NELSON, J.

         This appeal requires us to consider when an out-of-court statement reflecting a declarant's state of mind is hearsay and, if so, when the statement falls within a hearsay exception. During a criminal trial, the court admitted some email statements written by the victim, but excluded others as hearsay. The Court of Appeals reversed, concluding that the excluded email statements were either not hearsay or were hearsay that fell within an exception to the hearsay rule for statements offered to prove the declarant's state of mind. For the reasons below, we affirm the decision of the Court of Appeals.

         I. BACKGROUND

         Defendant admitted that, on March 13, 2010, he shot and killed Greenspan. Defendant was a drug dealer, and Greenspan was a naturopathic physician who had invested in defendant's drug dealing operation. The state argued that defendant killed Greenspan after robbing him of $20, 000. But defendant maintained that the state had it backwards: Greenspan tried to rob defendant of $20, 000, and defendant shot Greenspan in self-defense.

         To establish Greenspan's motive for the robbery, defendant argued that Greenspan viewed himself as being in significant financial trouble and in desperate need of money. As proof, defendant offered, among other things, 11 emails that Greenspan wrote in the months leading up to his death. In those emails, Greenspan described his financial troubles, which he attributed to employee theft and a decline in his business revenue. He also described his efforts to address those troubles.

         Defendant moved in limine to admit the emails. The state objected, arguing that the emails were not relevant and were hearsay. Defendant contended that the emails were relevant to Greenspan's motive to rob defendant and that the emails were being offered for a nonhearsay purpose-namely, Greenspan's state of mind.

         At a hearing on defendant's motion in limine, the trial court stated that it largely agreed with defendant's [363 Or. 763] arguments. The trial court said that, "if they're correctly tailored, [the emails] are going to come in under [defendant's] theory" and would not be "too prejudicial." The court, however, deferred ruling on the admissibility of the emails because it needed more time to review each email to determine how they would have to be tailored to fit within defendant's theory.

         Of the 11 emails that defendant sought to admit, the trial court excluded four in their entirety. Greenspan sent those four emails between November 29, 2009, and January 6, 2010. The emails detailed Greenspan's debts, his diminishing business revenue, his efforts to raise income by selling his gold, and his research into bankruptcy options. The trial court concluded that those emails did not establish Greenspan's state of mind because they were "really reciting facts or what he was planning on doing." The trial court also concluded that those emails were not "terribly relevant given" that the shooting occurred months later, on March 13, 2010.

         The court partially admitted and partially excluded four other emails, those sent between February 13 and February 26, 2010. The excluded portions detailed Greenspan's reduced business income, his upcoming debt obligations, and his efforts to recover money from employees who he accused of stealing from him. The court explained that the excluded portions did not reflect Greenspan's state of mind because they either recited facts or described Greenspan's plans.

         In addition to the four emails that the court partially admitted, the court also entirely admitted the portions of three emails that defendant offered from February 2 and 5, 2010, and March 5, 2010. In doing so, the trial court concluded that the admissible statements were relevant and either reflected Greenspan's state of mind or were necessary context to understand the otherwise admissible portions.

         Defendant presented the admitted emails to the jury as part of his case for self-defense. The jury, however, rejected defendant's self-defense argument and convicted defendant of one count of aggravated murder, two counts [363 Or. 764] of the lesser-included charge of murder, two counts of first-degree robbery, and one count of felon in possession of a firearm.[1]

         Defendant appealed, raising many issues. The Court of Appeals focused on the trial court's exclusion of the email statements. The Court of Appeals held that the trial court erred in excluding the email statements, because the statements were relevant and not barred by the hearsay rule. According to the Court of Appeals, the excluded statements were relevant because they tended to prove Greenspan's state of mind at the time of the shooting-namely, that he was desperate for money. State v. Bement, 284 Or.App. 276, 294, 391 P.3d 838 (2017).

         On whether the excluded statements were barred by the hearsay rule, the Court of Appeals made two rulings. First, although the court held that some statements were hearsay, the court still held that those statements were not barred, because they fell within the hearsay exception for statements reflecting a declarant's state of mind, OEC 803(3). Id. at 295. Second, the court held that statements that "merely provided context or background" for other admissible statements were not hearsay at all and so should not have been barred by the hearsay rule. Id. As a result, the Court of Appeals held that the hearsay rule barred none of the excluded email statements. The Court of Appeals also held that the trial court's error in excluding the emails was not harmless. Id. at 300. The state petitioned this court for review, which we allowed.

         II. ANALYSIS

         On review, the state does not challenge the Court of Appeals' holding that the emails were relevant. We therefore assume that all the excluded statements were relevant. The state also does not challenge the Court of Appeals' holding that statements providing context were not hearsay. Instead, the state argues that the Court of Appeals misapplied the state-of-mind exception to the general bar on hearsay. The state further argues that, even if the Court [363 Or. 765] of Appeals correctly concluded that the trial court erred by refusing to admit the emails as hearsay, the Court of Appeals incorrectly concluded that the trial court's error was not harmless. Defendant disagrees with most of the state's arguments and argues that the statements were not hearsay in the first place.

         A. Legal Framework

         To identify the exact points on which the parties disagree, we first set out the legal framework. Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC 801(3).[2] A statement is an assertion, whether oral, written, or nonverbal conduct intended as an assertion. See OEC 801(1) (defining "statement" as either "[a]n oral or written assertion" or "[n]onver-bal conduct of a person, if intended as an assertion"). Thus, hearsay is an out-of-court statement that a proponent offers to prove a fact that the declarant asserted in the statement.

         The hearsay rule bars the admission of hearsay unless the statement falls within a hearsay exception. OEC 802. Among those hearsay exceptions is the state-of-mind exception. OEC 803(3). Under the state-of-mind exception, "[a] statement of the declarant's then existing state of mind, emotion, sensation or physical condition" is excluded from the general bar on hearsay. OEC 803(3). That exception has a limit, however, and does not apply to "a statement of memory or belief to prove the fact remembered or believed." Id[3] Therefore, under the state-of-mind exception, a statement asserting a declarant's state of mind may not be offered to prove the facts underlying the declarant's state of mind.

         As noted, the Court of Appeals held that the excluded email statements were hearsay but fell within the state-of-mind exception. On whether the emails were hearsay, the Court of Appeals first considered what defendant [363 Or. 766] offered the emails to prove and held that he offered them to prove Greenspan's state of mind-namely, that he viewed himself as being in serious financial trouble. See Bement, 284 Or.App. at 289 ("[D]efendant offered the emails to show [Greenspan]'s state of mind at the time of the shooting."). And the court then held that the emails were hearsay because, in the emails, Greenspan asserted his belief that he was in serious financial trouble.

         Both of those conclusions carry over to the court's analysis of whether the emails fell within the state-of-mind exception. The court held that the emails were "[a] statement of the declarant's state of mind," OEC 803(3), because, in the emails, Greenspan asserted his belief that he was in serious financial trouble. Bement, 284 Or.App. at 295. The court did not expressly address the limit on the state-of-mind exception for "a statement of memory or belief to prove the fact remembered or believed." OEC 8O3(3).[4] But, as part of its hearsay analysis, the court held that defendant offered the emails to prove that Greenspan believed that he was in financial trouble and not to prove that Greenspan was, in fact, in financial trouble. Bement, 284 Or.App. at 289. Based on that analysis, we can presume that the Court of Appeals concluded that defendant did not offer the emails to prove the fact believed-i.e., that Greenspan was, in fact, in financial trouble.

         With that framework in mind, we turn to the parties' arguments. The state is petitioner on review and principally argues that the Court of Appeals erred by misapplying the state-of-mind exception to the general bar on hearsay. But, because hearsay exceptions apply only to hearsay, we begin ...


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