State v. Underwood , 266 Or. App. 274 ( 2014 )

ORTEGA, P. J.

Defendant appeals a judgment of conviction for fourth-degree felony assault constituting domestic violence, ORS 163.160(3); ORS 132.586(2); coercion, ORS 163.275; strangulation, ORS 163.187; and menacing constituting domestic violence, ORS 163.190; ORS 132.586(2). We reject the second of defendant’s two assignments of error without discussion and write to address only his first assignment of error, in which he argues that the trial court erred in admitting, under the excited utterance exception to the hearsay rule, statements that the victim made to her aunt recounting the domestic violence episode that was the subject of defendant’s convictions. The factual circumstances in this case, when viewed as a whole, demonstrate that the victim was under the stress of excitement from the startling event of defendant’s abuse and threats when she made the statements to her aunt. We conclude, therefore, that the trial court did not err in ruling that the statement was admissible under the excited utterance exception and, accordingly, affirm.

We review the facts consistently with the trial court’s ruling that the victim’s statements constituted an excited utterance, “accepting reasonable inferences and reasonable credibility choices that the trial court could have made.” State v. Cunningham, 337 Or 528, 539-40, 99 P3d 271 (2004).

Defendant and the victim were in a relationship, living together, and the victim was pregnant. Their relationship was characterized by defendant’s control over the victim; he often would follow the victim into the bathroom, kept possession of her phone and purse, and did not like when she spent time with friends or family.

The victim had an ultrasound appointment on January 9, 2012. The next day, after the victim received a phone call from her aunt, defendant became angry and pushed the victim up against the wall and squeezed her head tightly. The victim attempted to leave the house, but defendant grabbed her hair and prevented her from leaving, wrestling with her and pushing her to the ground.

Defendant later allowed the victim to call her aunt to come and pick her up. But after that phone call, defendant again became angry, grabbed a large butcher knife, and held it to the victim’s throat and to her stomach, telling her, “I will kill you if you go.” When the aunt arrived with the victim’s brother and knocked on the door, defendant put his hand over the victim’s mouth and nostrils so that she could not breathe. Defendant eventually released the victim and allowed the aunt and brother to enter. At some point during their visit, defendant grabbed the victim’s brother by the face. Fearing for the safety of her aunt and brother, and believing that, if she said something to them defendant might kill her, the victim decided not to leave with her aunt, telling her, “It’ll only make things worse.”

Later that night, the victim was still having difficulty breathing, so defendant accompanied her to the hospital. While at the hospital, defendant did not leave her side. The victim later testified that her pain was an 8 on a scale of 10 at the time of the assault, that the next day the pain continued and she felt like she had run a “marathon,” and that her body hurt for about a week.

The next day, defendant also went with the victim to a school appointment with her aunt and brother. At one point, the aunt and the victim were alone, and the aunt questioned the victim about her bruises. The victim made up excuses, later testifying that she feared something would happen to her aunt and brother, or that defendant would hurt her again when they got home. After defendant and the victim arrived home, defendant allowed the victim to use her phone to talk to her cousin. The victim used that opportunity to surreptitiously text her aunt to come and get her, asking her “to pretend that she had something in her car that she wanted to drop-off for the victim.” When her aunt arrived, the victim escaped with her aunt, leaving with only the clothes she was wearing and her phone. As the victim and her aunt drove away, the victim “broke down and began crying hysterically” and recounted to her aunt “what defendant had done.” The aunt insisted that they call the police. Defendant was charged and convicted of fourth-degree assault constituting domestic violence, coercion, strangulation, and menacing constituting domestic violence.

The state sought to admit testimony from the victim’s aunt recounting the victim’s statements about the domestic violence and threats to her life. Defendant objected and argued that the statements were inadmissible hearsay. The state responded that the statements were admissible under the “excited utterance” hearsay exception. OEC 803(2). The trial court recognized that there are cases in which statements made more than five days after the triggering event were found to fit within the exception, as well as cases where statements uttered less than an hour after the triggering event were found not to fit within the exception. Ultimately, given the facts before it, the court overruled the objection and denied defendant’s subsequent motion for mistrial. The court explained:

“[T]he nature of the event itself was one where [the victim] had had a recent ultrasound of her unborn baby, and was relating what happened with the placing of the knife around her pregnant belly. She was extremely emotional at the time. Her testimony was [that] she was basically affecting an escape at the time. And so, despite the intervening period of time, I do find that there is convincing evidence that she was still under the stress of the event to which the statement related.”

We review a trial court’s legal conclusion that a statement was admissible under the excited utterance exception to hearsay for legal error. Cunningham, 337 Or at 544. However, we review the trial court’s factual finding that the statement was made while under the stress of excitement caused by a startling event to determine whether evidence in the record supports that finding. Id.

Defendant argues that the victim’s statements to her aunt do not qualify as an excited utterance because “nearly a day [had] elapsed between the startling event and the statement,” giving the victim time for reflective thought. Defendant also contends that the victim’s ability to develop a plan “to leave defendant by deceiving him,” coordinate that plan with her aunt and brother, and execute that plan demonstrates that the victim was not under the stress of excitement caused by the startling event. Defendant points to the victim’s attendance at a school appointment and her private conversation with her aunt as evidence and implies that the startling event was limited to the physical violence that he inflicted on the victim.

In response, the state contends that the passage of time is one of several factors relevant to the excited utterance analysis and that all of the factors must be evaluated in the totality of the circumstances. Those factors, in the state’s view, support the trial court’s determination that the statements were “made under the stress of excitement caused by the startling event.”

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless the statement is excluded from the definition of hearsay or falls within an exception. OEC 801; OEC 802. OEC 803(2) provides an exception for an excited utterance, which is “[a] statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition.” For a hearsay statement to qualify as an excited utterance, three requirements must be satisfied: “(1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition.” State v. Carlson, 311 Or 201, 215, 808 P2d 1002 (1991). Defendant does not dispute the first or third requirement but disagrees that the victim was under the stress of excitement caused by the startling event or condition.

The rationale underlying the second requirement of the excited utterance exception is that statements made under the stress of excitement are spontaneous and, therefore, trustworthy because the declarant does not have an opportunity to reflect and fabricate. Cunningham, 337 Or at 543. In Carlson, the Supreme Court described the criteria for determining that a statement is spontaneous:

“The spontaneity-of-the-utterance requirement, i.e., the requirement that the statement of the declarant be ‘made while the declarant was under the stress caused by the event or condition,’ has both a causal and a temporal dimension. The declarant’s excitement must have been caused by the startling event, and the declarant’s statement must have been made while the excitement persisted. *** Criteria that bear on the trial court’s determination of the spontaneity of the utterance are ‘lapse of time, place, content of the utterance, physical or mental condition of the declarant, whether made in response to an inquiry, and presence or absence of a motive to fabricate.’”

311 Or at 218 (emphasis in original, quoting Cleary, Strong, Brown & Mostellar, Evidence, Cases and Materials 17 (4th ed 1988)); see Laird C. Kirkpatrick, Oregon Evidence § 803.02, 726 (5th ed 2007) (noting that the trial court can also look at the nature of the event). An excited utterance is admissible hearsay because the stress of the startling event allows the declarant to speak spontaneously rather than having the time to reflect on the event and fabricate a story. See State v. Hutchison, 222 Or 533, 537, 353 P2d 1047 (1960). Consequently, the lapse of time to permit reflective thought “may not of itself be controlling, [but] it is an important factor, if not the most important factor to be considered.” Zeller v. Dahl, 262 Or 515, 519, 499 P2d 1316 (1972). But see United States v. Iron Shell, 633 F2d 77, 85 (8th Cir 1980) (“The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of [the excited utterance exception].”).

While time to reflect is an important factor in the analysis, it must be understood in context of the nature of the event and the declarant’s physical and emotional state to evaluate whether those and “other factors may prolong the impact of a stressful event.” State v. Moen, 309 Or 45, 60-61, 786 P2d 111 (1990) (internal quotation marks omitted). In Moen, the Supreme Court found that statements made by the victim to her doctor would have been admissible under the excited utterance exception. Id. The victim made the statements at the second of two doctor’s appointments in which she was agitated and nervous and, while crying, told the doctor that she was upset about her son-in-law living in her home, that he had been physically abusive to her daughter, and that she thought he “might kill them both.” Id. at 60. Sometime between the two visits, the son-in-law had threatened the victim, her daughter, and her grandson with a shotgun. Id. at 61. The court did not discuss when the threats occurred, other than to say that they happened sometime in the month between the two doctor’s appointments. The court reasoned that “ [continuing emotional shock or unabated fright and other factors may prolong the impact of a stressful event, making it proper to resort to [the excited utterance exception] despite long lapses of time.” Id. at 60 (internal quotation marks omitted). Thus, the excited utterance exception applied in spite of a time lapse when (1) the startling events were threats of death and (2) the continuing fright of living with the defendant prolonged the period under which the victim was under the stress of that event.

In this case, evidence in the record supports the trial court’s finding that the victim’s statements to her aunt were made under the stress of excitement caused by the startling event. Defendant’s threats against the pregnant victim’s life and his violent acts, which interfered with the victim’s ability to breathe and caused her considerable pain — together with the victim’s recent ultrasound— prolonged the stressful event. Defendant threatened to kill the pregnant victim if she left, at one point holding a knife to her stomach to demonstrate potential harm to the fetus. The victim believed that defendant would follow through on his threats because he had just violently assaulted and choked her. Those facts, combined with defendant’s almost constant presence from the time of the initial abuse until the victim’s escape, were sufficient for the court to find that the victim’s statements were made under “continual emotional shock or unabated fright.” The victim spent the 24 hours after the initial assault with defendant, whom she feared leaving without further harm to herself or her family. Moreover, the victim was in significant pain and had difficulty breathing during the 24-hour period and had just had an ultrasound, further demonstrating why the stress of excitement was prolonged.

The victim’s visible condition when she made the statements similarly supports the trial court’s finding. She was “hysterically crying” and “physically shaking” once she reached a place of safety. This court has frequently used similar physical and emotional reactions to conclude that a trial court did not err in determining that the victim was under the stress of excitement. See, e.g., State v. Yong, 206 Or App 522, 534, 138 P3d 37 (2006) (concluding that the victim was under the stress of excitement caused by the defendant’s presence and pointing to the victim being “visibly upset, shaking, very worried, [and] pacing”); Cunningham, 337 Or at 541 (evaluating the victim’s statements in light of her escalating divorce proceedings that had led to her “emotional deterioration”).

Defendant’s contention that the victim was not under “continuing emotional shock or unabated fright” is unavailing. It is reasonable to infer that the victim’s ability to plan an escape is evidence of her continued agitated state rather than a restored capacity for reflective thought, as defendant contends. The victim could only leave her home by lying to the aggressor who, less than 24 hours before, had threatened to kill her if she left. In addition, the victim’s excuses to her aunt about her bruises and her decision not to reveal defendant’s abuse during a brief moment alone with her aunt support the trial court’s finding that the victim was fearful of defendant and under the prolonged stress of excitement; it was not necessarily, as defendant argues, evidence that the victim had the opportunity for “reflective thought.”

In sum, the evidence was legally sufficient to support the trial court’s determination that the victim’s statements made to her aunt were made under stress of the excitement caused by defendant’s violence, which was prolonged by the subsequent events ending with her escape: those events created “continuing emotional shock or unabated fright.”

Accordingly, we conclude that the trial court did not err in determining that the victim’s statements were admissible under the excited utterance exception to the hearsay rule.

Affirmed.