804
Submitted March 9, reversed and remanded April 29, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
W. E. D.,
Defendant-Appellant.
Jackson County Circuit Court
17CR50357; A167827
461 P3d 1108
Lisa C. Greif, Judge.
Anna M. Joyce, Lauren F. Blaesing, and Markowitz
Herbold PC filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Reversed and remanded.
Cite as
303 Or App 804 (2020) 805
PER CURIAM
Defendant appeals from a judgment of conviction
for one count of fourth-degree assault constituting domestic
violence. In his first assignment of error, defendant argues
that the trial court erred in admitting out-of-court statements of a witness, because the state failed to prove that the
witness was unavailable to testify at trial, as required by
Article I, section 11, of the Oregon Constitution. The state
concedes the error. As explained below, we accept the state’s
concession and reverse and remand. We reject defendant’s
second assignment of error without discussion.
The witness at issue here is the alleged victim. She
had made out-of-court statements to her treating doctor,
including that she was assaulted by her significant other.
Before trial, defendant moved to exclude those hearsay
statements on the basis that the state had not shown that
the witness was unavailable to testify. At that time, despite
multiple attempts, the state had been unsuccessful in contacting the witness and in attempting to serve her with
a trial subpoena. Based on that evidence, the trial court
determined that the witness was unavailable and denied
defendant’s motion. After that ruling, the state successfully
contacted the witness and served her with a trial subpoena.
The witness also indicated that she would appear for trial.
The witness, however, failed to appear on the first day of
trial, and the state did not try to contact her. Although
the trial court directed the state to make efforts to contact
the witness before the second day of trial, the trial court
allowed the doctor to testify on the first day of trial about
the witness’s out-of-court statements based on the witness’s
unavailability. The witness did not appear and testify at
trial.
On appeal, defendant argues that the state did
not meet the standard for witness unavailability under
Article I, section 11, which requires the state to show that it
has “exhausted all reasonably available means of producing
the witness.” State v. Harris, 362 Or 55, 66,
404 P3d 926
(2017). The state concedes that, in this case, it did not meet
that burden after the witness failed to appear on the first
806 State v. W. E. D.
day of trial, because the state did not attempt to contact the
witness or explain why such efforts would be futile.
We agree with and accept the state’s concession. In
Harris, 362 Or at 66, the Supreme Court concluded that simply demonstrating nonattendance in response to a subpoena
is not sufficient to demonstrate a witness’s unavailability
under Article I, section 11, which is all that the state did in
this case. Cf. State v. Belden, 303 Or App 438, 447,
464 P3d
465 (2020) (state’s efforts to secure the witness were sufficient where, despite the witness saying she did not want to
testify and evading service, the state successfully served her
with a subpoena; spoke with the witness’s probation officer
about securing the witness’s testimony; and, on the morning
of trial, unsuccessfully attempted to contact the witness in
person at her home).
Because the state did not meet its burden to show
that the witness was unavailable to testify, under Article I,
section 11, the trial court erred in admitting the witness’s
out-of-court statements. That error was not harmless.
Accordingly, we reverse and remand.
Reversed and remanded.
