385 P.3d 1209
Or. Ct. App.2016Background
- Defendant was on probation with a condition prohibiting direct/indirect contact with P after convictions and a contempt adjudication.
- P called police reporting defendant was near a MAX (light rail) stop close to her home; two officers responded.
- Officer Budry spoke with P, who identified herself and showed Budry her cell phone with text messages that “appeared to be from” defendant; Budry confirmed the probation condition and detained defendant.
- At the revocation hearing the state did not call P; it relied on Budry’s testimony recounting P’s self-identification and that her phone displayed texts apparently from defendant.
- Defendant objected on hearsay and confrontation/due process grounds; the trial court allowed Budry’s testimony about P’s identity and what he observed on the phone.
- The court found a probation violation, revoked probation, and sentenced defendant to concurrent incarceration and supervision; defendant appealed evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of officer testimony recounting P’s out-of-court self-identification | State: testimony admissible; identification corroborated by other evidence | Devore: admission violated due process/confrontation (hearsay) because P was not produced | Any error was harmless beyond a reasonable doubt; other evidence (defendant’s own statements/testimony) established identity |
| Admission of officer testimony about P showing texts on her phone (verbal assertion) | State: officer only described what he saw; no verbal repetition of P attributing messages to defendant | Devore: showing the phone or any statement that messages were from defendant is hearsay (verbal or nonverbal assertion) | No verbal hearsay recorded; no evidence P intended the act of showing phone as an assertion—thus not hearsay; admission proper |
| Whether noncriminal revocation hearing is constrained by hearsay/confrontation rules | State: OEC hearsay rules not strictly applicable; Sixth Amendment confrontation not applicable to revocation hearings; but Fourteenth Amendment due process may limit unreliable hearsay | Devore: due process requires live witness or exclusion of hearsay identifying origin of incriminating evidence | Court applied harmless-error analysis for due process claim and found no due process violation in admitted testimony |
| Burden to show nonverbal conduct was assertive | State: proponent may rely on officer’s description; ambiguous conduct should be admitted unless opponent shows intent to assert | Devore: must show P intended showing phone to assert messages were from defendant | Court: defendant bore burden to show communicative intent; he did not, so evidence was admissible |
Key Cases Cited
- Morrisey v. Brewer, 408 U.S. 471 (1972) (due process protections apply in parole/probation revocation proceedings)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (harmless-error test for constitutional confrontation violations)
- State v. Cook, 340 Or. 530 (2006) (harmless-error framework for due process errors in Oregon)
- State v. Wibbens, 238 Or. App. 737 (2010) (treating confrontation/due process objection in revocation setting)
- United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (admission of hearsay at revocation can implicate due process)
- State v. Johnson, 221 Or. App. 394 (2008) (four-factor approach for due process assessment of hearsay in revocation hearings)
- State v. Carlson, 311 Or. 201 (1991) (nonverbal conduct is hearsay only if intended as an assertion)
- State v. Mayfield, 302 Or. 631 (1987) (example where nonverbal conduct constituted hearsay because it was communicative)