State v. Kloeck , 316 Or. App. 804 ( 2022 )

804
Argued and submitted December 3, 2021, reversed and remanded
January 5, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JOHN KLOECK,
Defendant-Appellant.
Lincoln County Circuit Court
18CR75925; A171200
502 P3d 1201
Amanda R. Benjamin, Judge pro tempore.
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
Reversed and remanded.
Cite as 316 Or App 804 (2022) 805
PER CURIAM
Defendant appeals a judgment of conviction for driv-
ing 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
9-1-1 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 harm-
less. We therefore reverse and remand.
Defendant was charged with one count of DUII after
police investigated a 9-1-1 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 pro-
vided 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 9-1-1
call. Defendant objected on hearsay grounds, and the state
responded that the statements made during the 9-1-1 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 evi-
dence 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 9-1-1 state-
ments 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
P3d 600 (2014) (“If the supplier of the information and the
person recording the information are both acting in the regu-
lar course of business, then the multiple levels of hearsay are
excused under the business records exception.” (Emphasis
806 State v. Kloeck
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 alterna-
tive 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 per-
son made after perceiving the person.”
We reject the state’s preservation argument because
the issue that defendant raises on appeal was fairly encom-
passed in the hearsay objection and the arguments that
developed during the hearing in the trial court. On the mer-
its of the court’s admission of the statements under the busi-
ness records exception, the state’s concession is well taken:
There is no evidence that the 9-1-1 caller was acting in the
regular course of business for purposes of OEC 803(6), and
his statements in the recording were not admissible under
that exception.
With regard to the state’s proffered alternative
grounds for admission, neither the excited utterance excep-
tion nor the identification exemption provides a basis for
upholding the admission of the caller’s statements. The
trial court expressly declined to address whether the state
laid a sufficient foundation to meet the excited utterance
exception, and additional factfinding would be required in
order to determine whether the caller’s statements satisfy
that exception. See State v. Iseli, 366 Or 151, 162, 458 P3d
653 (2020) (identifying the excited utterance exception in
OEC 803(2) as one that “requires a trial court to evaluate
facts proffered under the specified criteria to determine
whether they are satisfied”). As for identity, the 9-1-1 caller’s
statements, which described an unknown person and his car
but never made an identification of him, do not fall within
the exemption provided in OEC 801(4)(a)(C) for statements of
identification of a person. That exemption requires, at a min-
imum, an actual statement of identification, as distinct from
a description of an unknown person. See State v. Hartley,
289 Or App 25, 32, 407 P3d 902 (2017) (describing the “nar-
row scope of OEC 801(4)(a)(C)”); id. at 30 (“ ‘The subpara-
graph should not be read literally. It is aimed at situations
where the declarant is shown a person or photograph of a
Cite as 316 Or App 804 (2022) 807
person and makes an identification as a result of that show-
ing (“that is the person who did it”). It is not aimed at situ-
ations where, after an event, the declarant simply makes a
statement which identifies the person involved (“X did it”).’ ”
(Quoting Legislative Commentary to OEC 801, reprinted in
Laird C. Kirkpatrick, Oregon Evidence § 801.02[2], 712 (6th
ed 2013).)).
In sum, the trial court erred in admitting the evi-
dence of the 9-1-1 caller’s statements under the business
records exception, and the state has not demonstrated that
the statements were nevertheless admissible under another
rationale. Because that error prejudiced defendant, as the
state correctly concedes, we reverse and remand.
Reversed and remanded.