212
Argued and submitted September 11, affirmed October 16, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHNEL SAPPRY JOHNSON,
Defendant-Appellant.
Multnomah County Circuit Court
17CN04034, 17CN05100;
A166738 (Control), A166767
452 P3d 1080
Angel Lopez, Judge.
John Evans, 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.
Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
PER CURIAM
Affirmed.
Cite as
300 Or App 212 (2019) 213
PER CURIAM
Defendant appeals a judgment of punitive contempt
for violating a no-contact order barring contact with J, and
a judgment finding him in violation of the terms of his probation based on the same conduct. Although we agree with
defendant that the trial court erred by admitting certain
hearsay evidence over defendant’s objection, we conclude
that the error was harmless and affirm for that reason.
Defendant was subject to an order barring contact
with J and precluding him from coming within 150 feet of
her. Yet, police officers found him in a car with a female
passenger who, when asked for her name, told them that she
was J.
J herself did not testify at the contempt hearing.
So, the prosecutor asked one of the investigating officers
what the passenger had said when asked who she was. Over
defendant’s hearsay and confrontation objections, the trial
court permitted the officer to testify that the passenger had
identified herself as J, reasoning that it was a statement of
identification that was not considered to be hearsay.
On appeal, defendant contends that that was error
under the Oregon Evidence Code and the confrontation
clauses of the state and federal constitutions.
As for the rules of evidence, OEC 801(4)(a)(C)
declares out-of-court statements of identification to be “not
hearsay” but only where “[t]he declarant testifies at the trial
or hearing and is subject to cross-examination concerning
the statement[.]” OEC 801(4)(a)(C). Here, because J did not
testify at the hearing, her out-of-court statement of identification, which was undisputedly offered for its truth, was
hearsay and not “not hearsay” under OEC 801(4)(a)(C). The
trial court erred by overruling defendant’s objection.
The state concedes the error but argues that it is
harmless. The state points to the fact that the record contains other evidence that the passenger was J. The investigating officer testified that, after reviewing J’s DMV photo,
he was “absolutely” sure that J was the passenger in defendant’s car. In addition, defendant’s probation officer testified
214 State v. Johnson
that defendant, after his arrest, had contacted the probation officer and admitted to him that he had “screwed up”
and had contact with J. And, in fact, in finding defendant in
contempt and in violation of the terms of his probation, the
trial court specifically noted that the “strongest evidence”
against defendant was his own admission to his probation
officer. Particularly given defendant’s own admission that
he was with J (and the trial court’s express reliance on it),
there is little likelihood that the erroneously admitted evidence affected the court’s contempt determination or its
probation-violation determination. See State v. Dowty, 299
Or App 762, 776-78,
452 P3d 983 (2019) (erroneous admission of the defendant’s statements was not prejudicial,
because other evidence was sufficient to support probation
revocation); State v. Homan,
294 Or App 259, 262,
431 P3d
463 (2018), rev den,
364 Or 535 (2019) (error is harmless if
there is little likelihood that it affected the verdict).
Affirmed.
