Defendant was charged with and convicted after a jury trial of two counts of coercion, ORS 163.275(1); two counts of menacing, ORS 163.190; and one count each of criminal mischief in the second degree, ORS 164.354; interference with making a report, ORS 165.572; and harassment, ORS 166.065(1). He assigns error to the trial court’s admission of a tape recording of a witness’s statements to 9-1-1 dispatchers after the incidents giving rise to the charged offenses, and to the court’s failure to give a lesser-included offense instruсtion on the charges of coercion. We conclude that the trial court erred in failing to give the lesser-included offense instruction on one of the counts of coercion.
We state the facts in the light most favorable to the state.
State v. Gibson,
Eventually, defendant left the hоuse. After Windsor dressed, Baggerly grabbed her and said, “Let’s go now.” They went to the 7-Eleven store where Baggerly worked. Windsor left to find a friend. Later, Sergeant Porter, a Bend police officer, stopped by the
Windsor called 9-1-1 on three of the next four days after the incident. On January 30, she reported that defendant was knocking at her door and window and that she was hiding in the house in the dark, crawling on her hands and knees to avoid being seen. She told the dispatcher that she was afraid because defendant had threatened her the previous evening and that she had not called the pоlice the night before because defendant had told her that if she did so she would be a “dead woman.” On February 1, Windsor reported to the 9-1-1 dispatcher that she saw some men down the street and that, although she could not determine their identities, she was afraid that one was defendant and that because of the threats, he might have come back intending to harm her. On February 2, Windsor reported to the 9-1-1 dispatcher that defendant had called and that she was afraid that he might cоme back and harm her. She was calling to report the incident just in case, so people would know.
At trial, Windsor’s testimony differed from what she had told Porter. Windsor attempted to downplay the seriousness of the incidents. She said that Baggerly had come over on the evening of January 29 to bring her methamphetamine and Baggerly had already used some before she had arrived at Windsor’s house. Windsor testified that defendant was upset by Baggerly’s presence because he did nоt approve of Baggerly due to her drug use. Windsor testified that defendant had not slapped or punched her but had “tapped” her on the face to get her attention, as if to say, “[BQello, smell the coffee, like this girl is not your friend, she’s just using you.” She minimized defendant’s contribution to the damage to the house, explaining that it had been caused by others. She described the incident of January 29 as a “tussle,” and denied that she had been inclined to call 9-1-1 that night. She explained that she had been using methamphetamine at the time of the 9-1-1 calls and that perhaps it had made her “more paranoid, more afraid.” Windsor testified that she and defendant are still friends.
The state offered a single tape recording of all of the 9-1-1 calls. Defendant objected, asserting that the statements were inadmissible under OEC 404(3) as evidence of bad acts. In the alternative, if the evidence was admissible, defendant contended that any possible relevance was outwеighed by the substantial prejudice of the statements’ reference to defendant’s subsequent “bad acts.” The state asserted that the tape was not offered to prove the truth of its contents or that defendant had committed bad aсts, but to show Windsor’s state of mind at the time the calls were made, and was directly relevant to prove an element of the charged offenses of coercion — that defendant’s threats on January 29 had instilled fear in Windsor. The state alsо asserted that the tape was admissible under two hearsay exceptions, OEC 803(2) (excited utterance), and OEC 803(18)(a)(b) (statements concerning an act of abuse.) Further, the state asserted, it was admissible to impeach Windsor’s testimony at trial and to show bias, i.e., fear of defendant.
The trial court admitted the tape and allowed the prosecutor to play it for the jury, reasoning that the statements were admissible both to impeach Windsor and as substantive evidence probative of the chargеs of menacing and coercion, specifically, Windsor’s state of mind. The trial court rejected
On appeal, defendant assigns error to the trial court’s admission of thе tape, renewing the arguments made at trial. Defendant objected to the admission of the entire tape recording and did not distinguish among the various statements that Windsor had made in each of the three calls. Accordingly, if any one оf Windsor’s statements contained on the tape recording satisfies a hearsay exception, we will uphold the trial court’s ruling on the admissibility of the tape recording.
See State v. Brown,
ORS 163.465 provides that a person commits the crime of coercion
“when the person compels or induces another pеrson to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the othеr person refrains from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or another will:
“(a) Unlawfully cause physical injury to some person; or
“(b) Unlawfully cause damage to property.”
Statements on the tape show that defendant’s threats caused Windsor to remain fearful for several days after the incident giving rise to the charges. We agree with the trial court that the taped statements were directly relevant to prove an element of the charged crime of coеrcion — that defendant’s threats on January 29, 2002, instilled fear in Windsor — and that they were admissible under OEC 803(3) as a hearsay exception for statements of “the declarant’s then existing state of mind [and] emotion.”
Furthermore, we conclude that the trial сourt did not abuse its discretion in determining that there was nothing “particularly prejudicial” about the content of the tape.
See State v. Johns,
In his second assignment of error, defendant contends that, with respect to the two counts of coercion, the trial court erred in failing to instruct the jury on the lesser-included offense of attempted coercion. In reviewing the trial court’s refusal to instruct the jury on an applicable lesser-included offense, “[w]e review the evidence in the light most favorable to the establishment of facts that would require those instructions.”
State v. Boyce,
Although defendant nominally assigns error to the failure to give a lesser-included instruction on both counts, defendant’s argument is addressed only to Count II. Defendant makes no lesser-included offense argument that engages with the fаcts charged in Count I. We therefore do not address whether the trial court erred in failing to give an instruction on the lesser-included offense of attempted coercion on the coercion charge stated in Count I of the indictmеnt.
Conviction on Count II of indictment reversed and remanded for entry of conviction for attempted coercion; sentences vacated; remanded for resentencing; otherwise affirmed.
Notes
ORS 136.465 provides:
“In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime.”