State v. Kloeck

• Decision Date: 05 January 2022
• Docket Number: A171200
• Citation: 316 Or.App. 804,502 P.3d 1201
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Michael John KLOECK, Defendant-Appellant.
• Court: Oregon Court of Appeals

316 Or.App. 804

502 P.3d 1201

STATE of Oregon, Plaintiff-Respondent,

v.Michael John KLOECK, Defendant-Appellant.

A171200

Court of Appeals of Oregon.

Argued and submitted December 3, 2021.

January 5, 2022

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.

PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Defendant assigns error to the trial court's admission of certificates of accuracy from the Intoxilyzer machine that registered defendant's blood alcohol content. We reject that assignment without written discussion. He also assigns error to the trial court's admission of statements from a 911 caller who reported seeing a person—later identified as defendant—stagger out of a bar and drive away. As to that assignment, we conclude that the trial court erred in admitting the 9-1-1 statements, and the error was not harmless. We therefore reverse and remand.

Defendant was charged with one count of DUII after police investigated a 911 call from a civilian. The caller reported seeing a man who "literally couldn't even walk" leaving a bar and getting into a vehicle, and the caller provided a detailed description of the man, the vehicle that he was driving, and where he drove before the caller lost sight of him.

At trial, the state offered a recording of the 911 call. Defendant objected on hearsay grounds, and the state responded that the statements made during the 911 call were admissible under the business records exception; as an excited utterance; for the purpose of identity; and to show the effect on the listener. The trial court ruled that the evidence was admissible "strictly under the business record exception," OEC 803(6). As a result, it did not rule on the other potential bases for admitting the evidence.

On appeal, defendant contends that the business records exception did not apply to the caller's 911 statements because the caller was not acting in the regular course of business. The state does not dispute the merits of that argument; rather, it concedes that it "would have been a valid objection." See State v. Cain , 260 Or. App. 626, 633, 320 P.3d 600 (2014) ("If the supplier of the information and the person recording the information are both acting in the regular course of business , then the multiple levels of hearsay are excused under the business records exception." (Emphasis added.)). Instead, the state argues that (1) defendant did not preserve the specific argument he makes on appeal; and (2) the caller's statements were admissible on the alternative grounds that they were within a hearsay exception for excited utterances, OEC 803(2), or were not hearsay because they fell within OEC 801(4)(a)(C) as "identification of a person made after perceiving the person."

We reject the state's preservation argument because the issue that defendant raises on appeal was fairly encompassed in the hearsay objection and the arguments that developed during the hearing in the trial court. On the merits of the court's admission of the statements under the business records exception, the state's concession is well taken: There is no evidence that the 911 caller was acting in the regular course of business for purposes of OEC 803(6), and his statements in the recording were...