State v. Edmonds

• Citation: 364 Or. 410,435 P.3d 752
• Decision Date: 28 February 2019
• Docket Number: CC CR1400136 (SC S065355)
• Parties: STATE of Oregon, Respondent on Review, v. Kelly Lee EDMONDS, Petitioner on Review.
• Court: Supreme Court of Oregon

364 Or. 410

435 P.3d 752

STATE of Oregon, Respondent on Review,

v.Kelly Lee EDMONDS, Petitioner on Review.

CC CR1400136 (SC S065355)

Supreme Court of Oregon.

Argued and submitted September 11, 2018.

February 28, 2019

Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the briefs for the respondent on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.^**

BALMER, J.

Under Oregon's rules of evidence, hearsay—that is, an out-of-court statement offered to prove the truth of the matter asserted in or by the statement—is generally inadmissible. OEC 802 ("Hearsay is not admissible except as provided in ORS 40.450 to 40.475 or as otherwise provided by law."). That rule reflects a preference for testimony that is given in-court, under oath, and subject to cross-examination. However, the legislature has adopted specific exceptions to the prohibition on hearsay evidence. Any hearsay that is to be admitted must satisfy one of those exceptions. The question that this case presents is whether a transcript of a police interview, which is unquestionably hearsay evidence, can be introduced under the business records exception, OEC 803(6). That question is complicated by the existence of the official records exception, OEC 803(8)(b), an overlapping hearsay exception that specifically excludes from its scope "matters observed by police officers and other law enforcement personnel" in criminal cases. We hold that the limitations that the legislature placed on the use of law enforcement records in OEC 803(8)(b) cannot be avoided by introducing those records under the business records exception. We therefore hold that the trial court's decision to admit part of the transcript into evidence was error, and we accordingly reverse defendant's conviction.

We begin with a brief summary of the facts. In 2015, defendant was charged with having raped a five-year-old girl in 1994 or 1995. At the time that the crime occurred, defendant's wife operated a daycare service out of her and defendant's home. The victim was regularly left at that daycare. At defendant's trial, the victim—who was 25 at the time—testified that, on one occasion, while she was at the daycare, defendant had taken her into another room and raped her. The victim testified that she had reported the rape to her mother on the day that it had happened and to her father, grandmother, therapist, and school counselor in 2002.

Defendant's theory of the case was that the victim had formed a false memory of the rape. In support of that theory, defendant offered testimony from an expert witness that memories can become distorted over time and that false memories are possible. Defendant also presented testimony from the victim's mother and grandmother that they had only learned of the rape in the past year and had not previously been told about it by the victim. Defendant also called the therapist and the counselor as witnesses. Each testified that they had no recollection of the victim telling them about being raped by defendant and that, as mandatory reporters of child abuse, they would have made a report to the Department of Human Services if they had been told. From that evidence, defendant attempted to make the case that the victim's memories of the rape had formed only recently and were therefore false.

In anticipation of that defense, the state attempted to introduce evidence that the victim had, in 2002, reported a past instance of sexual abuse "at her babysitter's" to law enforcement. In 2002, two sheriff's deputies, Clinton and Delehant, had interviewed the victim in connection with her report of a different incident of sexual abuse, one that did not involve defendant. At defendant's trial in 2015, the state presented a transcript of that interview and sought to have Clinton read a short excerpt to the jury. That excerpt of the transcript recorded the deputies asking the victim whether anyone had previously touched her in a sexual way and her response: "When I was at a babysitter's but that was like when I was really, really, really young."

Delehant had originally created an audio recording of the interview. Pursuant to department policy, the records division of the sheriff's office had transcribed the taped interview.

That transcript had then been sent to Delehant so that he could review it for accuracy. Delehant had signed a report containing the transcript, and that report had been placed in the case file concerning the other incident of sexual abuse. After that case was closed, the recording had been destroyed.

The transcript involved two layers of out-of-court statements: the victim's statement to the deputies, and the transcript's recounting of that statement. See State v. Pinnell , 311 Or. 98, 117 n. 29, 806 P.2d 110 (1991) (discussing a similar instance of multilayered hearsay). The trial court, in a ruling that was not challenged on appeal, held that the victim's statement to the deputies although it occurred out of court fell under OEC 801(4)(a)(B), which designates as nonhearsay a past, consistent statement introduced to rebut a charge of recent fabrication.

As to the other layer of hearsay, the transcript itself, the state argued that the hearsay exception for past recollections recorded, OEC 803(5), applied. That hearsay exception allows a written record to be read to the finder of fact if, at the time of trial, a witness has forgotten the events recounted in the record and the record is "shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly." The state did not argue that any other hearsay exception applied.

To lay a foundation for that evidence, the state called Clinton, but did not call either Delehant or the person who had transcribed the interview. Clinton testified that he remembered interviewing the victim and asking her about other instances of sexual abuse. He did not, however, recall her answer to that question, even after attempting to refresh his memory with the transcript. Clinton also testified about the transcription policy and the circumstances under which the transcript was produced. However, he did not testify that he had reviewed the transcript at the time that it was produced. The trial court, on that record and over defendant's objection, concluded that the past recollection recorded exception applied and allowed the relevant part of the transcript to be read to the jury. Defendant was convicted of first-degree rape.

Defendant appealed, assigning error to the admission of the transcript and arguing that the past recollection recorded exception did not apply. The state conceded that it was error for the trial court to admit the transcript as a past recollection recorded because Clinton had not adopted the transcript close in time to the interview. However, the state argued that defendant's conviction should nevertheless be affirmed because the trial court's decision was "right for the wrong reason" and because any error in admitting the transcript was harmless.

Under the "right for the wrong reason" doctrine, a trial court's ruling can be affirmed based on a ground that the trial court did not consider, but only when several conditions are met, among them:

"(1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court's ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below."

Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001). Here, the state argued that all the requirements of the business records exception, OEC 803(6), were satisfied, and that defendant had equally good reasons to challenge all those requirements at the time of trial and would not have litigated the admissibility issue any differently had the state raised the business records exception at trial.

Defendant, in his reply brief, took issue with each of those assertions. Defendant focused, however, on an argument, raised for the first time in response to the state's "right for the wrong reason" reliance on the business records exception: that police reports could not be admitted under the business records exception because of the bar to the admission of "matters observed by police officers and other law enforcement personnel" contained in the hearsay exception for official records, OEC 803(8)(b).

The Court of Appeals affirmed defendant's conviction. State v. Edmonds , 285 Or. App. 855, 398 P.3d 998 (2017). Consistent with the state's concession, the Court of Appeals first held that the trial court had erred by admitting the transcript under OEC 803(5), observing that "the state might have been able to satisfy the rule's requirement by calling Delehant as a witness, but it could not do so through Clinton." Id. at 861, 398 P.3d 998. The Court of Appeals also determined that all the requirements for admitting the transcript under the business records exception were satisfied, id. at 864, 398 P.3d 998, and that the trial record would not have developed any differently if the state had raised that argument below, id . at 867-68, 398 P.3d 998. However, the Court of Appeals refused to consider defendant's argument that OEC 803(8)(b) controlled over OEC 803(6), reasoning that,

"[u]nlike the state's argument for affirmance on an alternative ground, defendant's reliance on OEC 803(8) is an alternative ground for reversing the trial court, one

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