The following factual and procedural history is undisputed for purposes of appeal. In 2003, the victim, age 17, told a friend, M, that defendant, who was for a time her stepfather, had sexually abused her for over a decade. M persuaded the victim to report the abuse to an adult, who in turn notified the police. When the police subsequently contacted defendant, he retained an attorney; defendant was not, however, arrested or charged with any crime at that time. Six months later, defendant contacted the victim through online text messages. She notified a police officer, who encouraged her to continue communicating with defendant as a pretext to obtain evidence against him. In the months that followed,
Defendant initially obtained an order suppressing his own statements on the grounds that the police had violated his right against
The trial court ruled that both the text and recorded phone conversations were admissible, but that the victim's statements would be admitted only as context, not for their truth as adoptive admissions by defendant. Regarding defendant's argument that the evidence was unduly prejudicial under OEC 403, the court reasoned that defendant's refusal to respond to some of the victim's statements over the phone indicated consciousness of guilt, and that the conversations as a whole did not create unfair prejudice:
"[Defendant] is making an assertion, one of which I recall is of the nature, I'm not going to talk to you about this on the phone; I'm willing to talk to you about this in person. And, thus, awareness that there is in fact-and there's some statement indicating awareness that he might well be recorded on the telephone and would not be recorded in person, an unwillingness to subject himself to that. The inference is clearly there. That's relevant. That's consciousness of some guilt on his part. It is relevant. The State-it's a balancing test. The State is in need of the evidence. Yeah, it's-it has some weight against the Defendant, but it's not unfairly prejudicial in the Court's view."
The court stated that the evidence would be admitted "contingent upon the State proposing an appropriate cautionary instruction" to make clear that the jury could not consider the victim's statements for their truth.
The state introduced the conversations through the investigating officer, who explained that, in a pretext conversation, an alleged victim will refer to the allegation "in a context or in a way that will hopefully induce the suspect to either affirm it or not deny it or flat out refute it." Defendant objected when the state offered that evidence, referencing his motion in limine . The court instructed the jury that the victim's statements were presented only as context:
"You're not to consider the truthfulness of those statements in your deliberation. They are just there for explanation of the context, and you're not to consider the truthfulness of them. They're admitted not for the truth of the assertions made by [the victim] but as for purposes only of seeing [defendant's] response, and that's the reason for their admission."
The officer read into evidence part of defendant's text conversation with the victim:
"[VICTIM]: maybe we could hang out while you're here?
"[DEFENDANT]: yeah if you are comfortable with that I like to see you"[VICTIM]: yeah ...I think it'd be cool ...I miss you ...no sex though ...we did enough of that ...hehe
"[DEFENDANT]: I not gonna answer that brat. lol"[VICTIM]: we gotta be able to joke about sometime...I'm ok with everything now ...
"[DEFENDANT]: lol yeah
"[VICTIM]: so you'd be ok with just hanging out
"[DEFENDANT]: yeah why not we use to just hang out too
"[VICTIM]: yeah, but a lot of time that we hung out there was other sexual stuff going on and I wanted to make sure that part of our relationship was over ...because I really do miss you
"[DEFENDANT]: yeah I miss you to, nothing to worry about
"[VICTIM]: ok ...if I am being to forward let me know. I just thought tiptoeing around it was stupid
"[DEFENDANT]: it's all good
"* * * * *
"[DEFENDANT]: so are we on the up in up here
"[VICTIM]: ? ? lol meaning?
"[DEFENDANT]: look this was a bad situation that went on. I guess I just want to know if you're really sincere on what you're saying to me
"[VICTIM]: like that I'm ok with all of it now?
"[DEFENDANT]: well how you really feel I guess. you not setting me up here
"[VICTIM]: lol...no I mean it ...I miss you and hope that we can start over
"[DEFENDANT]: ok. I will take your word"
(Emphases added.)
The state then played the two telephone conversations for the jury. In the first call, the victim and defendant discussed her accusations and how the investigation
"[VICTIM]: * * * Do you get hounded at all? Like, have they talked to you at all? Because I haven't heard like anything from it. They-
"[DEFENDANT]: No. I got a lawyer and everything. My lawyer contacted them, so anything that went through went through him.
"[VICTIM]: Oh, really?
"[DEFENDANT]: They didn't even talk to me. Because I talked to him like three or four times in the beginning, and he just kept saying, well, you know, we're just going to investigate this and go through the steps. And he says, whenever I talk to you, I'll talk to you. That's all he-that's the last time-that was the last time I talked to him, and I never heard nothing from him again."
Later in the call, after the victim remarked that she sometimes regretted having accused defendant, he responded in a manner that the state contends revealed a guilty conscious:
"[VICTIM]: [I've stopped] letting [M] control my life. That was, you know, a big part of it.
"[DEFENDANT]: I don't know. That whole situation was wrong. You know, everything . * * * But, I don't know, I ain't going to worry about-I'm not going to dwell on it now. I mean, I'm glad to talk to you. * * *
"[VICTIM]: Yeah. Were you mad at me at all?
"[DEFENDANT]: Well, yeah. I don't know if it was so much mad. I don't know. I just-there was a lot of mixed feelings there. I guess there was just-I don't know. More than anything I just-I actually couldn't believe that what actually all went down happened. You know, it was hard to-it was hard to accept it, but, you know, there was no controlling it. Yeah?
"* * * * *
"[VICTIM]: And like the biggest problem I had with it all was like towards the end when like I just didn't want to do it anymore and like, I don't know, you changed like intoa different person. Like anything I would say you would be mean.
"[DEFENDANT]: I wasn't a good person . In fact, I was a-I was in a different world. I'll admit it, you know? And you look back and you think how stupid you were and stuff, but, you know, I-it wasjust mistakes on my part . Like I say, I should have been a different person, and I should have let you lead your life how you wanted to, too, you know? That was wrong for me . I don't know.
"[VICTIM]: Well, do you think that maybe later on after, you know, we've been able * * * to talk a few times that we could hang out without having the same thing?
"[DEFENDANT]: All right[,] that's something in the past, and I am sure it would not even be a problem, you know?
"* * * * *
"[VICTIM]: So no more sex ?
"[DEFENDANT]: Heh-heh-heh. You know, you really-you know, I'm not even [going to] go with that stuff. Just quit it. I'm not going to even answer to that stuff . If you want to talk to me sometime face to face on stuff like that, I'll do it. I don't have a problem with it * * * but I ain't going to do it over the phone. I can't do that."
(Emphases added.)
In the second telephone conversation, the victim told defendant that she was considering telling the police that she had lied about the abuse. Defendant again declined to discuss the issue over the telephone:
"Like, I don't mind-this is hard for me to-you know, it's hard for me to want to talk on the phone and say anything about this . I don't know if you understand that or not. * * * [Y]ou can do whatever you need to do there and whatever you want to do there, but as far as really talking about anything or saying anything on the phone, I'm not going to do that. I mean, if it's in person or whatever or do something else, I will, but it's just-that's a tough situation. I hope you understand that."
(Emphasis added.) In addition to the foregoing, defendant referenced his attorney several more times, each time stating
Defendant testified at trial and denied the allegations. He explained that, in the recorded conversations, he had said that he "wasn't a good person back then" because he "should have just been more lenient [with the victim], gave her more space." When asked why he was unwilling to talk about certain subjects over the phone, defendant replied, "Because I wanted to talk to her face to face. I wanted to know why she did what she did. * * * Over the phone I don't think I would have gotten a truthful answer."
The trial court twice more indicated that the jury was not to consider the victim's recorded statements as substantive evidence. First, when defense counsel objected to the state's characterization of the statements in closing argument, the court sustained the objection and explained: "The response is what you need to be focusing on. I'll sustain the objection. You need to focus on his response." Second, the court gave the jury a cautionary instruction:
"During the course of this trial you have heard out-of-court statements made by both [the victim] and the defendant during telephone calls and online conversations. The statements made by [the victim] during these conversations were offered only to show the context of the defendant's-or the context of the statements by the defendant. The statements made by [the victim] during the course of those telephone calls and online conversation must not be used for the proof of any of the statements made by [the victim] in those conversations."
The jury convicted defendant of two counts of first-degree rape and was unable to reach a verdict on two other counts, which the court therefore dismissed.
We turn to the parties' arguments regarding the admissibility of the text and recorded conversations. Beginning with defendant's hearsay argument, he contends on appeal that the victim's statements are hearsay because the state "offered those statements for their truth, that is, that defendant and [the victim] had sexual contact in the past." Defendant argues that those hearsay statements were inadmissible because they do not meet the requirements
We agree with the state that it is immaterial whether the victim's statements qualify as adoptive admissions under OEC 801(4)(b)(B), because those statements were not admitted for their truth. As noted, the trial court specifically instructed the jury that it had admitted the victim's statements "only to show the context" of defendant's statements, and not for their truth. Accordingly, the proper inquiry is whether the court's stated reason for admitting the evidence-to provide context for defendant's statements-was a legitimate, nonhearsay purpose for that evidence under the circumstances of this case. We review the court's conclusion that the evidence was admissible for that purpose for legal error. See State v. Hartley ,
Although defendant focuses his argument on whether the disputed statements qualify as nonhearsay under the exclusion for adoptive admissions, we understand his argument to be somewhat broader. That is, we understand defendant to contend that, because those statements can only be understood to have been admitted for their truth-notwithstanding the trial court's clear instructions to the contrary-they must be excluded as hearsay. Defendant does not dispute that a statement properly admitted for some purpose other than the truth, such as to show context or a relevant effect on the listener, may be admissible over a hearsay objection. See OEC 801(3) (defining "hearsay" as an out-of-court statement "offered in evidence to prove the truth of the matter asserted"); see also Laird C. Kirkpatrick, Oregon Evidence § 801.01[3][d][iii] (6th ed. 2013) (identifying
In support of that contention, defendant argues that this case cannot be distinguished from the Supreme Court's recent decision in State v. Schiller-Munneman ,
In relevant part, the Supreme Court considered whether the victim's texts and the defendant's nonresponse, both of which the trial court had admitted into evidence, constituted inadmissible hearsay.
In addressing those arguments, the Supreme Court first explained that the circumstances required it to consider the text messages and the defendant's nonresponse
Next the Supreme Court rejected the state's alternative argument that, to the extent that the texts contained assertions, they were admissible because they were offered only to show their effect on the defendant, and not the truth of the assertions themselves.
In rejecting that argument, the court reasoned that either the evidence had been offered to prove the truth of the matter it asserted in violation of the hearsay rule or it was not relevant. Id . In other words, because the state had not satisfactorily explained how the texts were relevant in any way other than to prove that the defendant was guilty of rape-i.e. , the truth of the matter asserted in those texts-the messages were not relevant for any nonhearsay use and so were inadmissible.
In light of those distinctions, we disagree with defendant's contention that Schiller-Munneman dictates the outcome here, and, instead, find better guidance in cases such as State v. Voits ,
The Supreme Court's decision in State v. Chandler ,
Furthermore, we are not persuaded that the victim's statements must be viewed as having been admitted for their truth because they included the victim's direct allegations against defendant. The Supreme Court has expressly declined to adopt a categorical approach that would classify statements as hearsay, even if not offered for their truth, if the statements include "definite complaints of a particular crime by the accused," such that the statements would be "likely to be misused by the jury as evidence of the fact asserted." State v. Mayfield ,
Appropriately, then, we now turn to defendant's argument under OEC 403 that the trial court erred because the probative value of the communications is substantially outweighed by the danger of unfair prejudice. We review a trial court's decision to admit evidence over an OEC 403 objection for abuse of discretion. State v. Serrano ,
In determining whether the trial court abused its discretion, we follow the Supreme Court's analytical framework in Mayfield ,
"First, the trial judge should assess the proponent's need for the * * * evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution's need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent's evidence, to exclude all the proponent's evidence or to admit only part of the evidence."7
At the outset, we agree with the state that defendant's statements were relevant evidence of his consciousness of guilt. That is, the jury may reasonably have viewed defendant's statements-that he "wasn't a good person," that "it was just mistakes on [his] part," and that "it was wrong for [him]"-to be, in essence, admissions of criminal wrongdoing, all directly responsive to the victim's statement that she "just didn't want to do it anymore." Similarly, defendant's expressed unwillingness to discuss the victim's allegations over the phone could reasonably be seen as reflecting defendant's awareness of his potential liability for what he had done. Viewed in that light, and in a trial that was essentially a credibility contest between defendant and the victim, that evidence had substantial probative value.
Defendant argues that any such probative value is outweighed by its prejudice. He points particularly to "the
Defendant also argues that he was unduly prejudiced by the admission of evidence that he refused to respond to some of the victim's
Even in the constitutional context, however, "[t]he erroneous admission of evidence that a defendant invoked his right to counsel is not necessarily prejudicial" and so does not invariably require reversal. Nulph ,
Our view is no different as to the potential prejudice inherent in the victim's statements. Although defendant does not expressly argue the point, we recognize the risk that, even if not admitted for their truth, statements that allege that a defendant has committed a particular crime may be misused by the jury as substantive evidence of guilt. See Mayfield ,
Finally, as to the balancing of those considerations under Mayfield , we again note the state's need for the evidence, given the central role that credibility played in defendant's trial, as well as the absence of any argument by defendant that the trial court failed to conduct the balancing required by Mayfield . Even taking into account the potentially prejudicial effect of both defendant's and the victim's statements, we conclude that, in light of the probative value of that evidence and the state's need for it, the trial court did not err in admitting the conversations in their
Affirmed.
Notes
Defendant specifically assigns error to the court's denial of his motion in limine to exclude the conversations from evidence and to the court's overruling of his objection to the evidence. We reject without discussion defendant's additional assignment of error, challenging the sufficiency of the court's limiting instruction on the challenged evidence. Defendant did not offer any argument on that assignment of error, and "it is not this court's function to speculate as to what a party's argument might be * * * [or] to make or develop a party's argument when that party has not endeavored to do so itself." See Beall Transport Equipment Co. v. Southern Pacific ,
For the sake of readability, we have made some minor omissions and corrections in the messages without altering their content or tenor.
Defendant does not dispute that his own statements plainly fall within the hearsay exclusion in OEC 801(4)(b)(A) : "A statement is not hearsay if * * * [t]he statement is offered against a party and is * * * that party's own statement[.]"
The Supreme Court issued its decision in Schiller-Munneman after briefing in this case was complete. We take the parties' arguments regarding the significance of that decision from the memorandum of additional authorities and related response.
The Supreme Court noted that such evidence must still be relevant under OEC 401 and must not be unduly prejudicial under OEC 403, and that a defendant may request a limiting instruction under OEC 105. Chandler ,
The Supreme Court in Schiller-Munneman explicitly distinguished its earlier opinion in this case, Davis I , noting that the defendant in Schiller-Munneman "did not answer the questions asked; he remained silent."
Defendant does not argue that the trial court's on-the-record reasoning is insufficient to demonstrate that the court engaged in the analysis required by Mayfield .