State v. Montgomery ( 2023 )

603
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted October 21, 2022, affirmed January 5, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL MONTGOMERY,
Defendant-Appellant.
Washington County Circuit Court
20CR39371; A175030
Ricardo J. Menchaca, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Hellman, Judge, and
Landau, Senior Judge.
ORTEGA, P. J.
Affirmed.
604 State v. Montgomery
ORTEGA, P. J.
A jury found defendant guilty of one count of fourth-
degree assault, two counts each of strangulation and coer-
cion, and three counts of harassment for his conduct towards
his domestic partner, S. On appeal, defendant challenges his
convictions, assigning error to the trial court’s admission of
out-of-court statements under the OEC 803(18a)(b) hearsay
exception.1 He first argues that this exception did not apply
to statements made by the declarants—S’s three children,
V, X, and D—to law enforcement officer, Officer Davies,
because they were not victims. Defendant further argues
that the court’s error was not harmless. The state contends
that the trial court did not err and that if it did, any error
was harmless. We need not resolve whether the trial court
erred in admitting the disputed statements because, assum-
ing that it did so err, we agree with the state that any such
error was harmless. Therefore, we affirm.
A trial court’s error in admitting evidence is harm-
less if there is “little likelihood that the error affected the
verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
To determine “whether erroneously admitted * * * evidence
affected the verdict, we consider the nature of the evidence
in the context of the trial as a whole.” State v. Simon, 294
Or App 840, 849, 433 P3d 385 (2018), rev den, 365 Or 502(2019) (citing Davis, 336 Or at 33-34). In doing that, we
“review all portions of the record, not just the evidence most
favorable to the state.” Id. at 849. If we conclude that a trial
court’s error was harmless, we must affirm the conviction.
Davis, 336 Or at 32. Here, we do not recount all the evidence
that we considered and provide only a brief description of
events for context.
Defendant had been in a romantic relationship with
S and resided at S’s residence with her three children, V,
X, and D, who witnessed the four incidents that involved
defendant’s charged conduct towards S. During defendant’s
jury trial, he moved to suppress statements that V, X, and
D made to Officer Davies regarding those incidents. Despite
1
“A statement made by a person concerning an act of abuse as defined in
ORS 107.705 or 419B.005 * * * is not excluded by [OEC 802] if the declarant * * *
testifies at the proceeding and is subject to cross-examination.” OEC 803(18a)(b).
Nonprecedential Memo Op: 323 Or App 603 (2023) 605
defendant’s objection, the court allowed Davies to testify
about V’s, X’s, and D’s statements, besides testifying about
the investigation. V, X, and D, as well as S, S’s brother, and
two other law enforcement officers involved in investigating
defendant’s conduct, also testified for the state. Additionally,
the state introduced videos from Davies’s and another offi-
cer’s body cameras, showing S’s interview when they visited
S’s residence to investigate related complaints. The defense
did not call any witnesses. Defendant did introduce two pic-
tures of an aluminum baseball bat to contradict allegations
that he had used a hammer during one of the incidents. The
jury convicted defendant of eight out of nine counts, acquit-
ting him on one count of unlawful use of a weapon for his
conduct involving what the state conceded during rebuttal
was a baseball bat rather than a hammer.
On appeal, defendant argues that admission of the
children’s hearsay statements was not harmless because
witness credibility was central to the case. He asserts that,
due to the lack of physical evidence, V’s, X’s, and D’s out-of-
court statements bolstered S’s credibility—the state’s most
important witness according to defendant. Defendant claims
that the jury’s acquittal on the count of unlawful use of a
weapon suggests that the jury was not entirely convinced
by the state’s evidence. Defendant also argues that some of
the out-of-court statements added detail and coherence that
V’s, X’s, or D’s direct testimony lacked and that Davies’s tes-
timony recounting certain of those out-of-court statements
was inflammatory. Contending that any error was harm-
less, the state argues that V, X, and D testified at trial and
offered more detailed descriptions of the facts compared to
their out-of-court statements. It also argues that V’s, X’s,
and D’s out-of-court statements either did not address defen-
dant’s charged conduct, were duplicative of their testimony,
or not relied on by the state.
Assuming that the trial court erred, we agree with
the state that any error was harmless. First, despite the
lack of physical evidence, the jury heard testimony from
multiple witnesses at trial, from which it could assess the
credibility of S. As the record shows, not only S, but also
V, X, and D, as well as S’s brother, “testif[ied] to the same
606 State v. Montgomery
effect” or in more detail at defendant’s trial, as compared to
the disputed statements. Simon, 294 Or App at 849 (“when
several witnesses testify to the same effect, the erroneous
admission of one witness’s testimony often will be harm-
less”). Moreover, the jury observed videos of S’s interview
with Davies, during which S spoke about the incidents, and
Davies testified about the interview. V’s, X’s, and D’s out-
of-court statements were indeed “cumulative” of the other
evidence. State v. Hobbs, 218 Or App 298, 309, 179 P3d 682,
rev den, 345 Or 175 (2008) (“When * * * disputed evidence is
merely cumulative of other evidence establishing the same
point, the error is harmless.”). Thus, there is little likelihood
that those out-of-court statements affected the jury’s assess-
ment of the state’s evidence and the jury’s acquittal on one
count does not indicate otherwise.
Second, we disagree with defendant’s specific argu-
ment that some statements added detail and coherence that
V’s, X’s, and D’s direct testimony lacked, and that Davies’s
testimony was inflammatory. Here, defendant points to two
statements, one being V’s out-of-court statement describ-
ing “pounding,” S “being thrown against a wall,” and S
“screaming in pain”; and the other being D’s statement that
defendant said that he “could literally kill [S] right now.”
However, as the state proposes, the relevant out-of-court
statements were either duplicative or not relied on in the
state’s argument. See Simon, 294 Or App at 852 (“inadmis-
sible * * * evidence was not prejudicial where reference was
isolated and innocuous, and prosecutor did not later rely on
it” (citing State v. Irons, 162 Or App 512, 526, 987 P2d 547(1999), rev den, 330 Or 120 (2000)).
Affirmed.