Defendant appeals a judgment of conviction, entered after a bench trial, for attempted murder, ORS 163.115; ORS 161.405, assault in the second degree, ORS 163.175, two counts of unlawful use of a weapon, ORS 166.220, and two counts of menacing, ORS 163.190. He аssigns error to the trial court’s exclusion of a witness statement as hearsay, arguing that the statement falls within the “excited utterance” exception to the hearsay exclusionary rule. See OEC 802 (rule
Nonetheless, the state argues that we should affirm the trial court’s judgment because the error was harmless. See Or Const, Art VII (Amended), § 3 (if “the judgment оf the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed”). We conclude that the error was harmless as to two of the counts, but it was not harmless as to the other four counts. Accordingly, we reverse in part and affirm in part.
Defendant’s convictions arose from two altercations that occurred on the same day — one in which Smith was the victim, and one in which Branch was the victim. Defendаnt’s sole defense was that he acted in self-defense. In support of his self-defense theory, defendant attempted to solicit the following testimony from his mother, Galvez, whom defendant’s girlfriend, Rouse, had allegedly called during оne of the altercations:
“[GALVEZ]: She called me frantically screaming and crying, talking about, ‘They’re jumping [defendant], they’re jumping [defendant], you guys need to hurry up and get over here.’”
The state objected on hearsay grounds, аfter which the following exchange took place:
“[DEFENSE COUNSEL]: It’s excited utterance, Your Honor.
“THE COURT: Sustained. [To Galvez:] You can describe what happened. You can’t quote anything that anyone said to you.
“ [GALVEZ]: I’m just describing what happened. I’m—
“THE COURT: No. You can’t say that, ‘She said this to me.’ You can desсribe how—
“ [GALVEZ]: Okay. I got a phone call, and what I heard on the other end — can I say that?
“THE COURT: No.
“ [GALVEZ]: I got a phone call and I answered it.”
As noted, the only issue is whether the trial court’s exclusion of Galvez’s testimony was harmless. According to the state, in light of the lack of credibility оf Rouse and Galvez, there is no likelihood that the trial court would have found the excluded evidence credible enough to affect the trial court’s conclusion that defendant did not act in self-defense. For his part, dеfendant argues that the error was not harmless because the erroneously excluded evidence would have (1) bolstered defendant’s version of the events— specifically, that defendant acted in self-defense; аnd (2) undermined the state’s assertion at trial that Rouse’s testimony was not believable, by showing that she gave a consistent version of the events at the time of the incident— in other words, it would have helped rehabilitate the credibility of Rouse’s testimony.
Evidentiary error is harmless if there is “little likelihood that the particular error affected the verdict.” State v. Davis,
We must assess the erroneously excluded evidence in light of other evidence in the record pertaining to that issue. State v. Johnson,
Defendant was convicted of two crimes arising from his altercation with Smith: unlawful use of a weapon (Cоunt 4) and menacing (Count 6). At trial, the state presented evidence that defendant and his girlfriend, Rouse, arrived at Rouse’s grandmother’s house, where Rouse’s brother (Smith), her sister (Anderson), and a family friend (Harris), were gathered on the porсh. Rouse’s siblings had recently received information that defendant had hit Rouse. Defendant arrived at the house “looking for trouble.” After walking inside the house briefly, defendant went back to the front porch and gave Smith a “mean” look. Smith asked defendant if he had a problem, they exchanged some words, and defendant told Smith to “come down to the street” with him. Smith walked down to the street where defendant was and defendant pulled a box cutter from his pocket. Defendant was the only one with a blade. Smith became fearful and ran a few steps away, then returned and shook hands with defendant, ending the altercation.
In contrast, defendant testified that Smith had been sending defendant threatening text messages in response to the allegations that he had hit Rouse. According to defendant, he had not intended to go to the house that day, and only went there because he and Rouse were asked to pick up Harris. When he arrived, he asked Smith to go down to the street with him so that they could talk, but he did not intend to fight. While talking, Smith pulled out a knife, and defendant pulled out his box cutter to protect himself. After a brief discussion, they both put thе blades away.
In that context, a central issue to defendant’s self-defense theory was whether defendant saw Smith with a knife. The erroneously excluded statement, “they’re jumping [defendant],” was not relevant to that issue because, even if the statement were believed by the trier of fact, it would not tend to prove that Smith had a knife. Therefore, the statement would not have bolstered defendant’s version of his encounter with Smith. Moreover, the excluded statement would not have rehabilitated the credibility of Rouse’s trial testimony regarding defendant’s encounter with Smith, because Rouse did not testify that multiple people had attacked defendant during that encounter. Thus, wе conclude that, as to Counts 4 and 6, there is “little likelihood that the particular error affected the verdict.” Davis,
We now turn to the remaining counts. Shortly after the altercation between defendant and Smith ended, Anderson’s boyfriend (Branch) arrived at the house and another altercation ensued. Defendant was convicted of four crimes arising from his altercation with Branch: attempted murder (Count 1), assault in the second degree (Count 2), unlawful use of a weapon (Count 3), and menacing (Count 5).
At trial, the state presented the following evidence. Branch went to the house that day because he was living there at the time and was under house arrest. When Branch arrived at the house, he approached defendant and defendant put up his hands as if ready to fight. Branch punched defendant, starting a fight. Although Rouse and Anderson also fought with each other, the fight between defendant and Branch was “onе-on-one.” Branch slammed defendant to the ground twice, and then thought the fight was over, but defendant pulled out the box cutter. Anderson said, “He’s got a knife,” and defendant told Branch, “Man, I’m going to kill you.” Branch threw his hands up and tried to run away, but he tripped and fell to the ground and defendant got on top of him. Defendant cut Branch in the shoulder and leg. Smith grabbed defendant’s arm, allowing Branch to get away. Branch was immediately taken to the hospital and treated for his injuries.
In contrast, defendant claimed that he cut Branch in self-defense, presenting evidence consistent with the following. Anderson had been encouraging Smith to fight defendant, and when they did not fight, she called Branch and told him to come fight defendant. Defendant had received threatening phone calls from Branch, and Branch was known to
In that context, a central issue to dеfendant’s self-defense theory was whether Branch, Smith, and Anderson were attacking defendant when defendant injured Branch, or, as the state asserted, whether defendant had attacked Branch while Branch attempted to retreat. The erroneously excluded statement, “[t]hey’re jumping defendant,” was relevant to that issue; if believed, it would have bolstered defendant’s version of the events — specifically, that he had been attacked by multiple people at once. Because the excluded statement relates to a “central factual issue” in the case— whether defendant was being attacked by multiple people— it is more likely to havе affected the court’s verdict than if it had dealt with a tangential issue unrelated to defendant’s self-defense argument. Johnson,
The state argues, nonetheless, that the excluded statement would not rehabilitate the credibility of Rouse’s trial testimony because she admitted that she had lied during the investigation and her credibility was “beyond repair.” However, “our role is not to decide among the possible conclusions that the [trier of fact] could have drаwn from the evidence.” State v. Hren,
As a result of the trial court’s erroneous exclusion of Galvez’s testimony, the trier of fact did not have the benefit of all of the available evidence relevant to the question of whether defendant’s actions were justified as self-defense. See State v. Beisser,
Reversed and remanded on Counts 1, 2, 3, and 5; remanded for resentencing; otherwise affirmed.