State v. Farr

Decision Date13 April 2022
Docket NumberA172754
Citation319 Or.App. 70,509 P.3d 165
Parties STATE of Oregon, Plaintiff-Respondent, v. Demeatrice Jean FARR, Defendant-Appellant.
CourtOregon Court of Appeals

David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

POWERS, J.

In this criminal case, defendant appeals from a judgment convicting him of attempted burglary in the first degree (Count 1), criminal mischief in the first degree (Count 2), and fleeing or attempting to elude a police officer (Count 3). Defendant raises six assignments of error, arguing that the trial court erred by (1) allowing the victim to testify over defendant's hearsay objections to the repair and replacement costs of a door; (2) denying defendant's motion for a judgment of acquittal on the first-degree criminal mischief charge; (3) accepting a nonunanimous verdict on Count 1; (4) instructing the jury that it could reach nonunanimous verdicts; (5) ordering restitution for damage to a patrol car because the damage was not reasonably foreseeable; and (6) imposing $276 in attorney fees without first determining defendant's ability to pay. We write to address defendant's first two assignments of error concerning the victim's testimony about the amount of damage caused by defendant and conclude that the trial court did not err because the challenged evidence was not hearsay. Further, we accept the state's concession with respect to the nonunanimous guilty verdict that the trial court received and, given that disposition, we need not reach the state's concession on the imposition of attorney fees. We reject defendant's fifth assignment of error without written discussion. Accordingly, we reverse and remand Count 1, remand for resentencing, and otherwise affirm.

We begin with defendant's first two assignments of error challenging the trial court's hearsay ruling and denial of a motion for judgment of acquittal on the first-degree criminal mischief charge. We review a trial court's decision to admit testimony over a hearsay objection for legal error. State v. Hixson , 307 Or. App. 333, 335, 476 P.3d 977 (2020). We review the denial of a motion for judgment of acquittal by examining the evidence "in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element[s] of the crime beyond a reasonable doubt." State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

The facts are not in dispute. Around 1:00 a.m., defendant and another individual attempted to kick in the victim's front door resulting in damage to the door and doorjamb. The victim received an alert from his security system and heard something being dragged from the back of the house. The victim called police and later discovered damage to his barbeque in addition to the damage to the front door.

When the police arrived, they saw an SUV leave the victim's neighborhood and run a stop sign. Deputy McCluskey turned on her overhead lights and siren and followed the SUV, which was driven by defendant. After defendant drove for about a mile or about a minute and 20 seconds without pulling over, McCluskey attempted to initiate a pursuit intervention technique (PIT) maneuver. The PIT maneuver did not go as planned but did eventually cause defendant's SUV to stop.

Defendant was charged with attempted first-degree burglary, first-degree criminal mischief, and fleeing or attempting to elude a police officer. As part of the criminal mischief charge, the state had to prove that defendant intentionally damaged the property of another in an amount exceeding $1,000. ORS 164.365. At trial, the victim testified that he went to Lowe's to determine how much it would cost to repair the damage to his front door. The victim explained that he received three proposed solutions from someone at Lowe's and received three quotes. Over defendant's multiple hearsay objections, the trial court allowed the victim to testify as to the cost of replacing the door and doorjamb:

"[Prosecutor]: Can you describe the damage sustained to the door and the doorjamb to the jury?
"[Victim]: Yeah. The—the doorjamb on the lock side was—was cracked. And also the door around the dead bolt was cracked also.
"[Prosecutor]: Did you get any quotes to determine what the repair or replace—
"[Defense Counsel]: I'm going to object. It's hearsay, Your Honor.
"[Trial Court]: You should be heard, Counsel.
"[Prosecutor]: Your Honor, it goes to the—I mean, it's the witness's own knowledge and the effect that it has on him to be able to provide an estimate to what the damage is to his own property.
"[Trial Court]: You can ask him if he got estimates.
"*****
"You can't ask him what the estimates said."

The state acknowledged the court's ruling and asked the victim how he got estimates and how many estimates he received. The state then returned to the value of the damage:

"[Prosecutor]: Okay. And based on all of that information, as the homeowner, what is your expected cost to replace or to repair the door?
"[Defense Counsel]: Objection. Hearsay, Your Honor.
"[Trial Court]: Do you wish to be heard further?
"[Prosecutor]: I do. He's the homeowner. He's able to testify about what he expect[s] the cost to replace his own door."

At that point, the parties approached the bench and had a sidebar conference off the record. Ultimately, the trial court sustained the objection:

"[Trial Court]: I sustain the form of this question. You can rephrase, Counsel.
"[Prosecutor]: Okay. So [you] had indicated that you received estimates?
"[Victim]: Yes.
"*****
"[Prosecutor]: Okay. Based on all of that information, as the homeowner and not specific quotes that you received, but what's the estimated damage or replace value to replace [the door]?
"[Defense Counsel]: I'm going to object. It's hearsay again, Your Honor.
"[Trial Court]: Sustain.
"***** "[Prosecutor]: Not specifically what anyone has told you about the total cost, but what is, as the homeowner, what is your understanding of what it would cost to replace the doorjamb and door?
"[Defense Counsel]: Your Honor, that's still hearsay.
"[Prosecutor]: He's the homeowner. He can talk about how much it cost to repair damage to his own home.
"[Trial Court]: Do you wish to be heard further?
"[Defense Counsel]: Your Honor, I think it's a matter better discussed—
"[Trial Court]: Counsel, to the extent that it includes not only—not only estimates that he received, but also what he did on his own at Lowe's.
"Okay. I'm going to allow him to testify about that. So your objection is overruled.
"[Defense Counsel]: Thank you.
"[Trial Court]: Go on. Can you answer the question?
"[Victim]: Yes. So the—the proposed three doors ranged from $1,100 to $1,500 just for the door and the jamb, not including labor."

After the state's remaining witnesses testified, defendant moved for a judgment of acquittal on the attempted burglary charge and the criminal mischief charge. With respect to the criminal mischief charge, defendant argued that the trial court should enter a judgment of acquittal as to that count and let the state go forward only on second-degree criminal mischief because the damage estimate was supported only by the victim's testimony. The trial court denied defendant's motions. Ultimately, defendant was convicted of all counts: the jury found defendant guilty by a nonunanimous verdict of attempted first-degree burglary and by unanimous verdicts on the remaining two counts.

On appeal, defendant argues that the trial court erred by allowing the victim to testify to the repair cost of the door, and in turn erred by denying his motion for a judgment of acquittal for first-degree criminal mischief. Specifically, defendant asserts that the victim's repair estimate for the door "was either a direct recitation of or derived from what the guys at Lowe's told him it would cost to repair the door." Defendant contends that, because the victim's testimony was offered to establish that defendant caused more than $1,000 of damage, the challenged testimony was hearsay. Defendant argues that "[i]f the state wanted to introduce a repair estimate, it should have called the Lowe's employees who provided it to testify and face cross-examination." In response, the state first argues that defendant's evidentiary challenge is inadequately preserved "because defendant did not object, but appeared to acquiesce, after the trial court clarified the scope of the victim's testimony." Alternatively, the state remonstrates that defendant's argument fails on the merits because the victim's testimony was not hearsay. Relying on our decision in State v. Pulver , 194 Or. App. 423, 95 P.3d 250, rev. den. , 337 Or. 669, 104 P.3d 601 (2004), the state asserts that, "if the victim's testimony about the cost of replacement doors was based on the victim's own observations of the prices that Lowe's charged for those doors, rather than what someone else told him, his testimony would not be hearsay but direct evidence of market value." Finally, the state contends that the "record reflects the trial court's binding finding of preliminary fact that the victim testified from his own knowledge about the doors’ prices, not what someone else told him." We reject the state's preservation argument without discussion and conclude, as explained below, that the victim's testimony was not hearsay.

Generally stated, hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. See OEC 801(3) (defining...

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