State v. Odoms , 313 Or. 76 ( 1992 )

UNIS, J.,

specially concurring.

The sole issue presented to this court in this case is whether the challenged portion of Detective Morse’s trial testimony relating his out-of-court statement to defendant about Kidwell’s credibility is improper opinion evidence. The challenged portion of Detective Morse’s testimony is susceptible to an opinion objection only if it is offered as opinion testimony, i.e., for the truth of the judgment or belief it expresses.

The challenged testimony of Detective Morse was not offered for its truth. It was offered to show its effect on the hearer’s (defendant’s) state of mind, i.e., how and why defendant changed the story he gave to Detective Morse in the post-arrest, pretrial interviews concerning whether he (defendant) knew Kidwell. Given the purpose for which the challenged portion of Detective Morse’s testimony was offered, it is not susceptible to an opinion objection.¹ The trial court did not err, therefore, in overruling defendant’s improper opinion evidence objection.²

Fadeley, J., joins in this specially concurring opinion.

1 Defendant does not argue on appeal, as he did before the trial court, that Detective Morse’s testimony is hearsay. For the same reason that Detective Morse’s out-of-court statement offered in court is not hearsay (i.e., because it was not offered for its truth), it is not offered as opinion and is not susceptible to an opinion objection. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801(3). See State v. Mayfield, 302 Or 631, 641, 733 P2d 438 (1987) (testimony in court of out-of-court statements offered to prove that the words motivated a person to do something is technically not hearsay); Sheedy v. Stall, 255 Or 594, 596-99, 468 P2d 529 (1970) (pre-OEC case; evidence offered to show that statement was made but not offered to prove the truth of the content of statement is not hearsay).

2 We are not called on in this case to decide whether the challenged portion of Detective Morse’s testimony should be excluded under the relevancy balancing test set forth in OEC 403.