State v. Hixson

                                      333

                 Submitted July 16, affirmed October 21, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 NATHAN MICHAEL HIXSON,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR53404; A169626
                                  

     Defendant was convicted of possessing a loaded firearm under Portland
City Code 14A.60.010 and unlawful possession of a firearm under ORS 166.250.
He appeals from the judgment of conviction, assigning error to the trial court’s
admission of a photo of the firearm in which the label “CAUTION-CAPABLE OF
FIRING WITH MAGAZINE REMOVED” printed on the side of the gun is visible.
Defendant argues that the label is hearsay because the jury could have relied on
it as proof of one of the elements of the offense—that the weapon was capable of
expelling a projectile. Held: The photo was not hearsay because it was offered as
relevant physical evidence that defendant had been in possession of a gun, rather
than to prove the truth of what was asserted in the label. Any risk that the jury
might have relied on the words printed on the gun for their truth is not material
to the hearsay determination itself. Instead, the mechanisms by which defendant
could have addressed that risk would have been to request a limiting instruction
under OEC 105 or seek exclusion of the evidence under OEC 403.
    Affirmed.



    Monica M. Herranz, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    KAMINS, J.
    Affirmed.
334                                           State v. Hixson

        KAMINS, J.
         Defendant appeals his judgment of conviction for
possession of a loaded firearm, Portland City Code (PCC)
14A.60.010, and unlawful possession of a firearm, ORS
166.250. He raises a single issue on appeal: whether the
admission of a photograph of the firearm that formed the
basis of his firearm convictions was erroneous. According
to defendant, that evidence of the gun should have been
excluded because the manufacturer’s words printed on its
side amounted to impermissible hearsay and violated his
right to confront witnesses. Because the photograph was
offered and admitted as direct evidence of the existence of
the gun and not for the truth of the matter asserted by the
words printed on it, we affirm.
         Defendant was stopped and arrested for reckless
driving when a police officer observed him rapidly spinning his car in circles in proximity of several parked cars.
After defendant was handcuffed, the officer asked if he had
any weapons on his person, and defendant responded that
he had a gun in his car. The officer located a loaded semiautomatic pistol in the center console. Defendant had a permit to carry a concealed weapon in Washington but not in
Oregon. The state charged him with reckless driving, possession of a loaded firearm in public, and unlawful possession of a firearm.
         At the trial, the state sought to introduce photographs of the gun that formed the basis of the firearms
charges. Defendant objected to some of those photographs,
arguing that the warning “CAUTION-CAPABLE OF
FIRING WITH MAGAZINE REMOVED,” printed on the
side of the gun, was impermissible hearsay that violated
his right to confront witnesses. According to defendant, the
statute defines a “firearm” as “a weapon … designed to
expel a projectile,” and therefore the words on the side of
the gun would be used to prove that the gun was, in fact,
capable of expelling a projectile. ORS 166.210(3). The state
responded that it was not offering photographs of the gun
to prove the truth of the words printed on it, but rather “to
show to the jury that this is a firearm.” The trial court overruled defendant’s objection, concluding that the words are
Cite as 

 (2020)                                              335

“something that’s on the gun. It’s not offered for the truth of
the matter asserted. They’re just showing the weapon.” The
jury convicted defendant of both reckless driving and the
firearm-related offenses.1
        We review a trial court’s decision to admit a statement over hearsay objections for legal error. State v. Hartley,

, 29, 

 (2017). Defendant’s argument boils down to this: Because the firearm contained
words, admission of the photograph is governed by the rules
of hearsay. We disagree.
          The photograph of the gun was offered because it
was relevant evidence of the existence of a gun. Such direct
evidence is “not hearsay at all.” Morgan v. Valley Property
and Casualty Ins. Co., 

, 

(2017), adh’d to on recons, 

, 

(2018). Any words printed on the gun were not hearsay
because they were not being offered or admitted for their
truth. Rather, any evidentiary value the words may have
had arose from their location on the physical evidence. See,
e.g., State v. Pulver, 

, 

 (2004)
(recognizing that the contents of a price tag are not hearsay,
but rather direct evidence of the asking price of an item); see
also United States v. Buchanan, 

 (8th Cir),
cert den, 

 (2010) (“The officers’ testimony that
the safe contained the inscription ‘2010’ is not hearsay …
[because] the inscription was not offered ‘to prove the truth
of the matter asserted’—that the safe was, in fact, a 2010
model.”).
        Defendant’s concern that the jury could rely on
those words to conclude that the gun can be fired does not
convert the imprint on the gun into hearsay. The risk that a
jury will draw improper conclusions “is not material to the
hearsay determination itself.” State v. Bement, 

, 

 (2018); State v. Mayfield, 

,

 (1987) (nonhearsay statements are not “converted from non-hearsay to hearsay” because of a risk that
the jury might use the statements for an improper hearsay
purpose). The mechanism to address that risk is for the court

   1
       Defendant does not challenge his conviction for reckless driving.
336                                          State v. Hixson

to provide a limiting instruction to the jury under OEC 105
or, if necessary, exclude part or all of the evidence as more
prejudicial than probative under OEC 403. See Bement, 

.
         In sum, evidence is not hearsay if it is not offered
for the truth of the matter asserted. Relevant physical evidence like a firearm is not hearsay simply because words
are stamped on its side.
        Affirmed.