534
Submitted February 12, 2019; in Case Nos. 15CR54291 and 16CR47326,
reversed and remanded; in Case No. 15CR19090, affirmed January 21, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER A. CECCONI,
aka Christopher Angelo Cecconi,
Defendant-Appellant.
Multnomah County Circuit Court
15CR19090, 15CR54291, 16CR47326;
A164297 (Control), A164298, A164299
480 P3d 953
In this consolidated criminal appeal, defendant appeals a judgment of conviction for felony assault in the fourth degree-constituting domestic violence,
ORS 163.160(3) and ORS 132.586; assault in the fourth degree, ORS 163.160;
harassment, ORS 166.065; and criminal mischief in the second degree, ORS
164.354 pursuant to a conditional guilty plea and argues that the trial court
erred in admitting evidence under various hearsay exceptions and in concluding that the state established the declarant, J’s, unavailability. Defendant also
appeals two probation revocation cases and argues that, if he prevails on his
evidentiary-hearsay claim, those revocations should be reversed and remanded
because the trial court considered his conditional guilty plea in revoking probation in those cases. Held: In light of State v. Iseli, 366 Or 151, 162,
458 P3d 653
(2020), the trial court erred in admitting the hearsay evidence because the state
did not establish that J was unavailable. The Court of Appeals also reversed
and remanded one of defendant’s probation revocations because that revocation
resulted solely from defendant’s conditional guilty plea.
In Case Nos. 15CR54291 and 16CR47326, reversed and remanded. In Case
No. 15CR19090, affirmed.
Jerry B. Hodson, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
Cite as 308 Or App 534 (2021) 535
EGAN, C. J.
In Case Nos. 15CR54291 and 16CR47326, reversed and
remanded. In Case No. 15CR19090, affirmed.
536 State v. Cecconi
EGAN, C. J.
Defendant was charged with felony assault in the
fourth degree-constituting domestic violence, ORS 163.160(3)
and ORS 132.586; assault in the fourth degree, ORS 163.160;
harassment, ORS 166.065; and criminal mischief in the second degree, ORS 164.354, in association with an alleged
attack on J, the mother of his child. Defendant entered a
conditional guilty plea to those charges after the trial court
ruled that the state would be allowed to introduce hearsay
evidence (consisting of J’s testimony relating to a probation
violation hearing) under OEC 804(3)(a), the former testimony
exception to the rule against hearsay, and OEC 804(3)(g),
the forfeiture-by-wrongdoing exception. After defendant
entered that guilty plea, the court revoked his probation in
two other cases based, in part, on the new criminal convictions. Defendant appeals both the judgment of convictions
(16CR47326) and the probation revocation judgments in the
other two cases (15CR19090 and 15CR54291).1 We conclude
that the court erred in deeming the hearsay evidence as
admissible because the state did not establish that J was
“unavailable,” as required by both OEC 804(3)(a) and OEC
804(3)(g). Accordingly, we reverse and remand Case No.
16CR47326 so that defendant may have the opportunity to
withdraw his plea, if he so chooses. As to defendant’s probation revocation judgments, we reverse and remand Case No.
15CR54291 and affirm Case No. 15CR19090.
The underlying facts are undisputed, except where
otherwise noted. The events that gave rise to defendant’s
new convictions occurred on July 31, 2016. Prior to that
date, defendant had been convicted of previous crimes
against J, and he was on probation for those convictions.2
1
The trial court also decided that a subset of the evidence would be admissible under OEC 803(26), the 24-hour domestic violence hearsay exception.
Defendant does not challenge the court’s decision about the admissibility of hearsay under that exception. Thus, our discussion and disposition are limited to
the court’s erroneous ruling as it pertains to OEC 804, and we omit any further
discussion of OEC 803(26), as it is not relevant to our conclusion.
2
In Case No. 15CR19090, defendant pleaded guilty to harassment and was
sentenced to domestic violence diversion. In Case No. 15CR54291, defendant
pleaded guilty to burglary in the first degree-constituting domestic violence, felony assault in the fourth degree-constituting domestic violence, assault in the
fourth degree, and menacing-constituting domestic violence. Defendant was
Cite as 308 Or App 534 (2021) 537
Defendant, who had recently been released from jail, agreed
to meet J in a parking lot to give her money for their son’s
birthday party. J went with two friends and was waiting
for defendant in the backseat of the vehicle when—before
she realized that defendant had arrived—defendant opened
the door and started hitting and kicking her. J could not
escape the attack because there were items that prevented
her from reaching the door on the other side of the backseat.
Defendant hit J “[a]nywhere he could pretty much punch.”
Defendant stopped attacking J, and then turned his attention towards her friends sitting in the front seat. At that
point, J got out of the car and began calling for help.
J ran to a passing car and asked the driver to call
the police. Defendant, who had chased after J, began hitting the driver of the passing vehicle and tried to take the
driver’s phone. Finally, another passerby intervened and
restrained defendant on the ground until the police arrived.
As a consequence of defendant’s actions, J suffered a black
eye and a “busted” lip, and she had to miss work for three
days.
Defendant was arrested the same day and was
indicted on August 8, 2016. His trial was initially scheduled
for September 20. About two weeks before that scheduled
trial date, the trial court held a probation violation hearing to consider an allegation that defendant had violated
a no-contact order that was associated with one of his two
previous convictions for crimes against J. J appeared at the
probation violation hearing and testified under oath to the
events that occurred on July 31.
At defendant’s request, trial was rescheduled for
November 28. On November 23, the state and defendant,
with his defense attorney, appeared at “trial call.” The state,
believing that J was not going to appear for trial, affirmed
that it was ready to proceed for trial, and requested the court
to hear a pretrial motion regarding hearsay evidence that
it sought to admit. The court held a hearing on the state’s
motion on November 28—the same day set for trial.
originally sentenced to a downward dispositional departure of five years of supervised probation. However, after his probation was revoked, he was resentenced to
five years of incarceration.
538 State v. Cecconi
The state called several witnesses in support of its
position that J’s hearsay statements were admissible. The
state’s first witness was a victim advocate, who had worked
with J in relation to defendant’s case. The victim advocate
stated that she had had several conversations with J, and
noted that J was hesitant to testify because she “felt like she
had already testified at the [probation violation] hearing”
and that she was “nervous about the amount of time that
[defendant] might have to serve.” J had also told the victim
advocate that she “felt as though [the state] had already had
a case that had gone through, and [the attack] had still happened again.” That is, even though J “had the no-contact
order” against defendant, that “had not stopped him from
contacting her.”
Further, on two separate occasions, J had told the
victim advocate that she was not going to testify at defendant’s trial. The state offered to provide transportation and
childcare to J, which did not alleviate her unwillingness to
appear. By the end of October, J had stopped answering her
phone. Nevertheless, the victim advocate continued to call
and leave voicemails for J to ensure that she knew when the
trial was to occur.
The state also provided testimony from a subpoena
clerk along with records supporting the efforts made by the
subpoena clerk to secure J’s testimony for trial. Prior to the
first trial date that had been set for September 20, the state
had used an investigator in an attempt to contact and serve
J with a subpoena to require her appearance at trial. On
five different occasions—August 2 and 31 and September 1,
2, and 6—an investigator went to J’s house to serve her, but
she did not answer the door. On August 2, the investigator left a subpoena on her front door. On September 6, the
investigator personally served J with a subpoena to appear
at the date initially set for trial—September 20. However,
as noted above, defendant requested, and was granted, a
continuance. After the trial was set over to November 28,
the state attempted to personally serve J again on October 4
and 5. On both of those dates, an investigator surveilled J’s
house for 30 minutes but was unable to make contact with
her. On October 6, J was personally served. Additionally, a
copy of J’s subpoena was mailed via “certified return-receipt
Cite as 308 Or App 534 (2021) 539
request” to J notifying her of the trial date, which was
received, signed, and returned by J’s mother. However, at
the time the state received the certified return receipt on
November 10, the state believed that it was from J.
Finally, the state offered evidence of recordings of
over 20 jail calls between defendant and J and played three
of those calls for the court. The first two calls occurred on
August 2. In a portion of the first call between defendant
and J, defendant stated what he planned on doing to J the
next time he saw her:
“[DEFENDANT]: …. Well, it don’t matter, nigger.
Period. You already know why, because (indiscernible)
dumb shit. But I’ll do it again, too. I don’t give a fuck.
“[J]: Are you serious?
“[DEFENDANT]: (Indiscernible) if you don’t want that
to happen to you, then don’t—then, leave me alone, because
if—because any of my bitches want to act out of line, they’re
getting slapped, fucked, taken that head, whatever. It don’t
matter.
“[J]: So if you see me again, you’re going to do it again?
“[DEFENDANT]: I don’t—If I seen you right now this
second, I would do it again, yeah.
“[J]: Do you not listen to how crazy you sound?
“[DEFENDANT]: And I’ll probably—by the time
whenever I get out, whether—I don’t know, months, years,
whatever, probably by the time I get out and after I hear
about everything you been doing, I probably would do it
again, so, yeah. You probably should just leave me alone.
Probably do it way worse, too, somewhere where no’s going
to stop nothing, somewhere where we’re in close, somewhere where I’m going to whoop your ass. Bad.”
In the second call, defendant worked to convince J to not
testify by telling her that, if she did not testify, it is likely
that he would be released. The conversation went, in part:
“[DEFENDANT]: Are you going to court?
“[J]: Probably.
“[DEFENDANT]: Why?
540 State v. Cecconi
“[J]: Why would I not?
“[DEFENDANT]: All right, then, maybe just don’t
talk to me, bro. I’m not going to talk to you no more—
“…
“[DEFENDANT]: Don’t matter. I have the right—
that’s law, I have the right to face my accuser, nigger. If my
accuser don’t come, it’s the law that I don’t go to jail. If I
shoot someone in the face, and there’s 50 witnesses and the
person I shot in the face don’t come, I don’t come—it’s just
harder to drop. Niggers get shot all the time—
“…
“[J]: If I don’t press charges you get to go out—
“…
“[DEFENDANT]: Yeah, but—but you have to help
the D.A. for them to press charges. You have to work with
them.”
Finally, the third call played by the state took place on
September 30, 2016, after the probation violation hearing
at which J had testified. Defendant asked J, “What are you
going to do on Sunday?” J replied that she was “staying
at [her] sister’s house.” Defendant also stated that he had
hoped that J would not go to the trial. J replied that she was
“not going.”
After the state presented its evidence, it argued
that J’s statements would be admissible at trial under OEC
804(3)(a), the former-testimony exception to the rule against
hearsay, and OEC 804(3)(g), the forfeiture-by-wrongdoing
exception. Defendant argued that the state had not met
its burden under OEC 804(3)(a) and OEC 804(3)(g)—both
of which require the proponent of the evidence to establish the declarant’s unavailability—to establish that J was
“unavailable.” Specifically, defendant argued that, for J to be
“unavailable,” either a continuation of the trial or a material
witness warrant was necessary, because J was a reluctant
witness. The state responded by reiterating everything it
had done, including its personal service of subpoenas, mailing a “certified return-receipt request,” surveillance of J, and
phone calls to J from the victim advocate for the purpose of
obtaining J’s presence. The state argued that all of those
Cite as 308 Or App 534 (2021) 541
efforts were sufficient to meet its burden because, viewed in
totality, those efforts constituted “reasonable and good-faith
efforts.” Additionally, the state argued that, because J had
told defendant in the jail calls that she would not show up to
trial and not be at home, any effort to procure her would be
“futile.”
The trial court found that J was unavailable because
the state made “reasonable good-faith efforts to secure her
voluntary appearance at trial.” Specifically, the court stated
that J was unavailable
“based on the efforts by the DA’s office to bring her to court,
and coupled—that the subpoenas, coupled with the phone
calls, coupled with both mailing and return receipts and
going out to surveil her residence, and coupled with the
phone calls which I regard for two purposes: one, that the
victim makes clear, she’s not going to be at home and she’s
not going to come to trial. So she is refusing to come in.”
The court did not address whether the state was required to
seek a continuance; however, it did conclude that a material
witness warrant was not required because the law does not
require “the DA’s office to actually go out and apprehend
victims in every case; there could be certain cases where it
would be required for unavailability. But certainly it cannot
be that in every case the DA’s office has to have the victim[ ] arrested.” Additionally, the court concluded that the
forfeiture-by-wrongdoing exception applies because defendant “intentionally … engaged in conduct” that resulted
in J’s unavailability. Looking at the totality of the circumstances, including defendant’s history of violence toward
J, the trial court found that the “phone calls were veiled
threats that if she appeared, that would be problematic for
her, and she would suffer consequences because he would
be suffering consequences.” Based on those findings and
conclusions, the court determined that J’s former testimony
given during defendant’s probation violation hearing would
be admissible at trial. After the pretrial hearing concluded,
defendant conditionally pleaded guilty to all four counts and
then initiated this appeal.
On appeal, defendant reprises his arguments.
First, defendant challenges the admission of the testimony
542 State v. Cecconi
under OEC 804(3)(a), the former testimony exception and
OEC 804(3)(g), the forfeiture-by-wrongdoing exception. In
doing so, defendant asserts that J was not “unavailable”
as required by either exception to the hearsay rule.3 Next,
defendant argues that, even if J was “unavailable,” defendant did not “forfeit his right to the witness’s presence via his
wrongdoing,” and, therefore, the forfeiture-by-wrongdoing
exception does not apply.
In evaluating a trial court’s determination that a
witness is unavailable, we review the trial court’s determination of “ ‘unavailability’ under OEC 804(1)(e) as a question
of law.” State v. Iseli, 366 Or 151, 162,
458 P3d 653 (2020).
“[A]ny fact that the trial court found is binding, if supported
by any evidence in the record.”
Id. at 159. Those include “historical facts about events that occurred, together with facts
about the nature and underlying intent of defendant’s conduct toward the victim.”
Id.
OEC 804(1)(e) states, in part, that a person is
unavailable if the declarant “[i]s absent from the hearing
and the proponent of the declarant’s statement has been
unable to procure the declarant’s attendance … by process or other reasonable means.” Although the “ ‘process’
3
Defendant also argues that admitting J’s statements are a violation of his
Article I, section 11, right to “meet the witness face to face.” Nevertheless, in arguing that J was unavailable pursuant to OEC 804, he asserts that the statutory
and constitutional frameworks for determining whether a declarant is “unavailable,” do not appear to differ in any meaningful way. Thus, in arguing that J was
unavailable, defendant cites State v. Harris, 362 Or 55, 57,
404 P3d 926 (2017),
for the proposition that, “to establish unavailability for Article I, section 11, purposes, the state must show that it is unable to produce a witness after exhausting
reasonable means of doing so.” In response, the state asserts that the test under
OEC 804 “is not as stringent as the constitutional standard.” Specifically, the
state asserts that there is no “ ‘exhaustion’ requirement like that under Article I,
section 11.” We have noted that “[w]hat is needed to establish unavailability” to
overcome Article I, section 11, or OEC 804 requirements are “not necessarily the
same,” State v. Belden,
303 Or App 438, 445,
464 P3d 465, rev allowed,
303 Or
App 438 (2020); however, we need not address any differences here, as our resolution of the question under the evidence code is dispositive. See, e.g., Dept. of Rev. v.
River’s Edge Investments, LLC,
359 Or 822, 836,
377 P3d 540 (2016) (stating that,
as a prudential matter, we address statutory challenges before reaching constitutional issues to resolve the case on the narrowest ground possible; citing Wallace
P. Carson, Jr., “Last Things Last”: A Methodological Approach to Legal Argument
in State Courts, 19 Willamette L Rev 641, 643-45, 654 (1983) (advocating for a
legal analysis in sequence beginning with administrative rules, then state statutes, then state constitution, then federal law, then federal constitution)).
Cite as
308 Or App 534 (2021) 543
and ‘other reasonable means’ components are set out alternatively in OEC 804(1)(e), they operate collectively.” Iseli,
366 Or at 173. Meaning that “showing ‘process’ via service
of a subpoena may not necessarily satisfy the legislature’s
intended criteria for establishing a nonattending declarant’s unavailability.”
Id. Rather, a proponent may still “need
to establish ‘unavailability’ by showing pursuit of ‘other reasonable means.’ ”
Id. (quoting OEC 804(1)(e)). In determining
what, if any, further efforts are required, the totality of the
circumstances guides our analysis.
Id. Factors that we consider include
“the proponent’s efforts to procure the declarant’s attendance beyond service of a subpoena; the resources available to the proponent; available options that the proponent
did not pursue; any limit on the proponent’s efforts, and
the likelihood that additional efforts would procure attendance[;] … the importance of declarant’s testimony[;]
the cost of procuring the declarant[;] … the stakes of the
case[; and the] wrongful conduct by another [that] may
have caused the nonattendance.”
Id.
The parties do not dispute, and we agree, that the
state’s personal service of a subpoena on October 6, 2016, for
the November 28, 2016, trial date was adequate in this case
to meet the process requirement. Thus, we limit our discussion to the sole issue of whether the state was required to
engage in further efforts to secure J’s appearance at trial to
satisfy the “other reasonable means” requirement.4
One factor weighs significantly against defendant—
his wrongful conduct that, as we discuss below, played a significant role in preventing J’s attendance.5 The trial court,
4
Although the state argued below that any further efforts to secure J’s
attendance at trial would be “futile,” and the trial court appeared to agree, the
state does not develop an argument on appeal in regard to the futility of taking additional steps. Rather, the state takes the position that it met its burden
to establish that J was unavailable because it had taken “reasonable” steps “in
light of defendant’s conduct.” Accordingly, we do not address whether further
efforts would be futile. See Bazzazz v. Howe, 262 Or App 519, 528-29,
325 P3d
775, rev den,
356 Or 397 (2014) (declining to address an undeveloped argument).
5
The state argues that, “because of defendant’s direct involvement in the
victim’s decision not to appear[,] defendant cannot now challenge the reasonableness of the state’s efforts.” The state relies on State v. Supanchick, 354 Or 737,
544 State v. Cecconi
looking at the totality of the circumstances, found that
defendant caused J to not attend trial. The court stated that,
because of defendant’s history of violence toward J along
with the “phone calls [that] were veiled threats that if she
appeared, that would be problematic for her, and she would
suffer consequences because he would be suffering consequences.” Those findings are supported by the underlying
fact that, when J asked whether defendant would attack her
again, he said, “if I seen you right now this second, I would
do it again, yeah,” in conjunction with defendant’s history of
physical abuse toward J, which gave those threats heightened credibility. See Iseli,
366 Or at 173 (clarifying that a
defendant’s wrongful conduct that may have caused the
nonattendance of a declarant is a factor to be considered in
weighing whether a declarant is “unavailable” under OEC
804).
Although defendant acted in a way to prevent J’s
attendance, we must consider the totality of the circumstances in determining whether the state should have pursued “other reasonable means”—like seeking a continuance—
to obtain J’s testimony at trial. Id. In considering the circumstances, we conclude that several factors weigh against
the state: (1) the available options that the state did not
pursue; (2) the likelihood that additional efforts would procure attendance; and (3) the importance of J’s testimony.
Defendant, in arguing that the state did not make reasonable efforts, asserts that the state could have taken further
reasonable efforts to “procure” J’s attendance; for instance,
the state should have “sought a continuance.”6 In light of
Iseli, we conclude that the trial court’s conclusion that J was
766,
323 P3d 231 (2014), for the position that “when a defendant has intentionally
made a witness unavailable to testify, the defendant loses the right to object
that that evidence should not be admissible on state constitutional confrontation grounds.” We note that both parties briefed their arguments prior to the
Supreme Court’s decision in Iseli. Given that recent decision, we cannot conclude
that defendant’s involvement “in [J]’s decision not to appear” necessarily means
that J is “unavailable,” for purposes of OEC 804, which is expressly required for
the proposition that the state sets forth via Supanchick.
6
Defendant also asserts that the state should have sought a material witness
warrant. We need not address that issue, however, as the less-intrusive means,
a continuance, was an option that the state did not pursue, and that would have
been a sufficiently reasonable escalation in the state’s attempt to procure J under
the circumstances.
Cite as 308 Or App 534 (2021) 545
“unavailable” was erroneous because, under the circumstances, there was a high likelihood that additional efforts
would have procured J’s attendance at trial, and, accordingly, a continuance would have been reasonable.
Here, the evidence demonstrates that J was merely
reluctant and that “other reasonable means” were likely to
procure her under the circumstances. Specifically, J had
told the victim advocate that she felt her presence at the
prior hearing had been sufficient. That suggests that J may
have simply wanted to avoid making multiple court appearances and that she could have been persuaded to attend had
the state taken further steps. Although the state believed
that she had been at her sister’s house at the time of trial, a
continuance would have given the state the time to confirm
that she was not home and to see if she was going to return.
Finally, because J’s testimony was critical to the criminal
prosecution, defendant’s due process interest in a continuance was significant and the state should have sought a
continuance. Collectively, those considerations required the
state to intensify its efforts. See Iseli, 366 Or at 174 (requiring an intensification of efforts to procure a declarant, when,
looking collectively, those efforts are proportional with the
relative likelihood of obtaining live testimony).
Therefore, we conclude, in light of Iseli, that the trial
court erred in determining that J was unavailable for purposes of OEC 804. Accordingly, we reverse and remand the
judgment of conviction in Case No. 16CR47326 so that defendant may withdraw his conditional plea. ORS 135.335(3)
(“[a] defendant who finally prevails on appeal may withdraw
the plea,” when that defendant entered a conditional plea of
guilty or no contest); State v. Bernabo, 224 Or App 379, 389,
197 P3d 610 (2008) (reiterating ORS 135.335(3)). Defendant
contends that that disposition also compels that we reverse
and remand his probation revocations. We agree with defendant as to Case No. 15CR54291. See State v. Wilson,
282 Or
App 717, 718,
385 P3d 1233 (2016) (reversing and remanding
a probation revocation when that revocation resulted solely
from a defendant’s conditional guilty plea). However, as to
the probation revocation in Case No. 15CR19090, the record
reflects that the trial court would have revoked defendant’s
probation on another basis even without the new conviction.
546 State v. Cecconi
Defendant does not challenge that ruling of the trial court,
and we therefore affirm the probation revocation in that
case.
In Case Nos. 15CR54291 and 16CR47326, reversed
and remanded. In Case No. 15CR19090, affirmed.
