and submitted November 5, 2018
Deschutes County Circuit Court 16CR70995 Walter Randolph
Miller, Jr., Judge.
Zachary Lovett Mazer, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Christopher Page, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Lagesen, Presiding Judge, and James, Judge, and Haselton,
appeals a judgment of conviction for four offenses committed
against his mother, M. He assigns error to the admission of
evidence that, while he was incarcerated pending trial, he
directed another inmate to contact M regarding her testimony,
arguing that that evidence should have been excluded as
hearsay. M's initial statements to police differed from
her later statements to the defense investigator.
Consequently, at trial, the key dispute centered over which
version of events should be believed. To encourage the jury
to credit M's first statement, the state sought to prove
M's change in story was attributable to defendant's
conduct and, to that end, introduced the evidence at issue.
On appeal, the state contends that the evidence was properly
admitted to show its effect on the listener, M.
trial court erred. There was no indication that the trial
court admitted the evidence for any other purpose than to
prove the truth of the fact that defendant directed the phone
call and that defendant had influenced M to change her
statements about the incident. The error was not harmless;
the evidence that defendant had contacted M was central to
the state's [295 Or.App. 170] theory that M had changed
her statements from an initial, accurate version to an
inaccurate one because of defendant's influence.
Or.App. 171] LAGESEN, P.J.
found that defendant committed several acts of violence
against his mother, with whom he lived, and convicted
defendant of four offenses for those acts. On appeal,
defendant assigns error to the admission of evidence that,
while he was incarcerated pending trial, he directed another
inmate to contact his mother regarding her testimony. He
contends that the evidence was hearsay and should have been
excluded for that reason. We agree and, because we conclude
that the erroneous admission of the evidence was not
harmless, we reverse and remand.
pertinent facts are not disputed. Defendant was charged with
two counts of felony strangulation (Counts 1 and 3), ORS
163.187; one count of felony fourth-degree assault (Count 2),
ORS 163.160; and one count of menacing (Count 4), ORS
163.190, after defendant's mother, M, told police that
defendant had hit her in the head twice, tried to strangle
her twice, and threatened to kill her. But, before
trial, M retreated from her initial version of events,
indicating in an interview with a defense investigator that
her initial statements were not accurate and giving a version
of events that called into question defendant's
culpability on the charges against him. M's trial
testimony was fairly vague, in contrast with her statements
during the initial investigation and the defense
investigation. Consequently, at trial, the key dispute
centered on which one of M's versions of events should be
believed: her initial statements to police, or her later
statements to the defense investigator.
encourage the jury to credit M's initial description of
the incident over her later description, the state sought to
prove that M's change in story was attributable to
defendant's conduct. To that end, the state sought to
introduce evidence that defendant had directed another inmate
with whom he was incarcerated to contact M regarding her
testimony; M herself testified about the phone call,
explaining that somebody called her and asked her what she
was going to do, but she did not attribute the call to
defendant. The [295 Or.App. 172] call had been recorded, and
the state's proposed evidence that defendant was behind
the call initially took the form of a recorded out-of-court
statement by the other inmate to M that he was telling ...