464
Argued and submitted June 9, 2020; convictions on Counts 1 and 4 reversed and
remanded, remanded for resentencing, otherwise affirmed May 19, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JONATHAN LOUIS BUSCH,
Defendant-Appellant.
Marion County Circuit Court
18CR31395; A169334
489 P3d 1084
Defendant appeals from a judgment of conviction for first-degree sodomy, ORS
163.405, fourth-degree assault constituting domestic violence, ORS 163.160(2),
menacing constituting domestic violence, ORS 163.190, and felon in possession
of a firearm (FIP), ORS 166.270(1). Defendant assigns error to the trial court’s
asserted restriction of his ability to cross-examine the victim, the admission of
the victim’s prior statements under the hearsay exception in OEC 803(26), and
the use of a nonunanimous jury instruction. Held: The trial court did not impermissibly limit defendant’s ability to cross examine the victim and did not error in
admitting the victim’s statements under OEC 803(26). Because the record reflects
that the guilty verdicts for defendant’s fourth-degree assault and menacing convictions were nonunanimous, those convictions must be reversed and remanded.
Convictions on Counts 1 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.
Claudia M. Burton, Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Convictions on Counts 1 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 311 Or App 464 (2021) 465
DeVORE, P. J.,
Defendant appeals from a judgment convicting him
of attempted first-degree sodomy, ORS 163.405, fourth-degree assault constituting domestic violence, ORS 163.160(2),
menacing constituting domestic violence, ORS 163.190, and
felon in possession of a firearm (FIP), ORS 166.270(1). On
appeal, defendant first assigns error to the trial court’s
asserted restriction of his ability to cross-examine the victim using impeachment evidence. Second, defendant assigns
error to the trial court’s admission of the victim’s prior statements under the domestic violence hearsay exception, OEC
803(26), arguing that the statements were not sufficiently
reliable. Third, he assigns error to the trial court’s use of
a nonunanimous jury instruction. In his fourth and fifth
assignments of error, defendant challenges the length of his
sentence.
As to defendant’s first assignment, we determine
upon review of the record that the trial court did not
restrict cross-examination to the extent alleged by defendant. Second, we determine that, because the record reflects
sufficient indicia of reliability, the trial court did not err
in admitting the victim’s hearsay statements under the
domestic violence hearsay exception. Third, we reverse and
remand defendant’s convictions for attempted first-degree
sodomy and FIP, as the record reflects those guilty verdicts
were nonunanimous. State v. Ulery, 366 Or 500,
464 P3d
1123 (2020). We decline, however, to review as plain error
defendant’s challenge to the nonunanimous jury instruction as to his convictions for fourth-degree assault and
menacing because those guilty verdicts were unanimous.
State v. Chorney-Phillips,
367 Or 355,
478 P3d 504 (2020).
We do not reach defendant’s fourth and fifth assignments
of error regarding his sentence because we are reversing
and remanding his convictions for attempted first-degree
sodomy and FIP. In short, we reverse and remand defendant’s convictions for attempted first-degree sodomy and
FIP, remand for resentencing on the remaining counts, and
otherwise affirm.
Defendant’s convictions resulted from a domestic dispute between defendant and the victim, F. F and defendant
466 State v. Busch
have a child together, but they had recently ended a 16-month
relationship. On May 3, 2018, F filed a petition for a restraining order against defendant.
F testified that late in the day on May 8, 2018, she
arrived at defendant’s apartment to return her set of keys
to the apartment. Although F said that she “didn’t think it
was a good idea” to go to defendant’s apartment, she spent
the night there and the two had consensual sex.
F testified that, on May 9, they woke up just before
8:00 a.m. and started to have consensual sex a second time
but stopped when they started arguing. F said that, as
she sat on the bed and started to get dressed, defendant
stood in front of her, grabbed her neck, and pulled her face
toward his penis. F slapped defendant to get away. She testified that defendant then grabbed a helmet case. F testified that, due to a recent shooting trip, she knew that defendant kept his gun and ammunition in the helmet case. F
said that defendant acted like he was going to unzip the
case “to the point where [she] was scared,” but that defendant said “no” when she asked if he was going to shoot
her.
F testified that defendant then came back to where
F was sitting at the foot of the bed and pulled off her underwear with enough force to scrape her leg and rip the underwear in the process. When F put on another pair of underwear, F testified that defendant pulled off the second pair in
the same manner.
Shortly after 8:00 a.m., F called 9-1-1 and told the
operator that defendant had “tried to pull a gun out.” F testified that defendant was “frantic” and that he had thrown
her belongings and duffel bag around the apartment. F said
that defendant then dragged her out of the apartment by
her belt loops, locked the door, and left her outside. F told
the 9-1-1 operator that defendant had left the apartment
because he heard F calling the police.
Responding Officer Hodges arrived, and he saw
that F had circular dime-sized bruises on either side of her
neck, consistent with someone using force to push her head
down. Hodges also observed a horizontal laceration on F’s
Cite as 311 Or App 464 (2021) 467
right calf, which F told him resulted from defendant ripping
her underwear off.
About two hours after the 9-1-1 call, Hodges interviewed defendant. Defendant confirmed that F had visited
his apartment on the night of May 8 to return his apartment
keys and ended up staying overnight. Defendant, however,
told Hodges that he was the one who declined sex on the
morning of May 9. Defendant said that F “started freaking out” about finding her keys, and he asked her to leave.
According to defendant, when F would not leave, he grabbed
her belongings and threw them toward the door. Defendant
told Officer Hodges that he decided to leave the apartment
and dragged F outside the door by her belt loops when she
got in his way. Defendant denied threatening to kill F.
Later that day, Hodges searched defendant’s apartment and discovered the apartment was in “disarray.” Hodges
found two pairs of ripped underwear, as described by F. He
found F’s belongings scattered around the apartment. F’s
purse was behind the headboard of the bed, turned upside
down and with its contents spilling out, and her duffel bag
was closer to the entryway. Hodges testified that F’s belongings were scattered all over the room, not in “place[s] where
a person would deliberately” set them.
Defendant was charged by indictment with one
count of attempted first-degree sodomy, two counts of fourth-degree assault constituting domestic violence, one count of
menacing constituting domestic violence, and one count of
FIP.
Prior to trial, defendant sought to admit evidence of
two petitions for a restraining order that F had filed against
defendant. F filed the first petition on May 3, 2018, prior
to the charged incident, and the second on May 20, 2018,
after the charged incident. Specifically, defendant argued
in support of their admission that some inconsistent statements in the petitions demonstrated that F’s motive in this
case was to keep defendant out of their child’s life. The trial
court denied admission of the restraining order petitions as
not providing impeachment for the stated purpose. At trial,
defendant testified and asserted his version of the facts; he
argued that F’s testimony was not credible.
468 State v. Busch
The jury found defendant not guilty of one count of
fourth-degree assault but guilty of all other charges.
On appeal, defendant first asserts that the trial
court erroneously curtailed his ability to cross-examine F
by excluding impeachment evidence. Defendant argues that
the trial court “erred by not allowing defendant an opportunity to present to the jury the possibility that [F]’s testimony
was tarnished by her desire to get defendant completely out
of her life, as evidenced by the restraining orders.” In relevant part, the state responds that defendant’s argument is
not preserved and that the trial court’s ruling was not the
broad restriction of impeachment evidence that defendant
claims on appeal.
On review of the record, we agree with the state
that the trial court did not make the ruling that defendant
purports to challenge on appeal. To explain, we begin with
defendant’s argument in the trial court. Defendant argued
below that particular inconsistencies within the two petitions filed by F were admissible impeachment evidence.
Defendant argued that the differences in the two petitions
demonstrated F’s motive to “get [defendant] totally out of the
life of the child” because “there’s no children listed at all at
any issue in the [second] [p]etition” and “[s]he’s just continually changing” her story regarding the child’s paternity.
When examining the contents of the May 3 and
May 20 petitions, the trial court described the differences
between the two as follows:
“In the first [p]etition, on unmarried parents, number 16,
she checks the box that says legal paternity of the children
has not been established. In the second [p]etition, she just
doesn’t check any of the boxes under paragraph 16, unmarried parents.
“And then in the first [p]etition, in paragraph 17, which
addresses prior cases, sub B, she says that she’s been
involved in prior cases concerning custody or parenting
time of, quote, ‘the children.’ And she refers to her Polk
County cases in DHS there. In paragraph 17 of the second
[p]etition, she does not refer to there being any other cases.”
After that explanation of the two petitions, defendant
declined to argue anything further. The trial court observed
Cite as 311 Or App 464 (2021) 469
that “[t]he only difference is that in one [p]etition she refers
to the fact that there are DHS proceedings. And in the other
[p]etition she doesn’t.” Both petitions did not list any joint
children, say anything regarding who the child’s father was,
or make any requests for custody. The trial court added
that, despite legal paternity not being established, it was
undisputed as between the parties that defendant was the
father of the child.
The trial court determined that the differences
or omissions between the two petitions did not amount to
material inconsistencies. F did not seek in either petition
any custody order regarding a child. The trial court determined that the differences between the petitions did not
support defendant’s inconsistency-impeachment theory. The
trial court described the question surrounding the admissibility of the petitions as follows:
“But obviously, should [F] testify with regard to the
charged incidents in some manner that’s inconsistent with
… how she describes those incidents in these [p]etitions,
then certainly, I think those are fair game to impeach her
trial testimony with regard to the charged incidents. Other
than that, I do not see … the references … to children.
I don’t think they’re impeachment at all. And if they are,
they’re certainly impeachment on a collateral matter.”
The court recognized that the petitions could be used if F
testified and did so inconsistently with something in the
petitions, but the court determined that the only “inconsistencies” were whether F mentioned “children” and whether
F noted DHS proceedings. As such, the court concluded that
the petitions did not really serve to impeach.
As we understand this record, the trial court’s ruling was narrowly limited to disallowing use of the petitions
for the purpose of arguing that the identified differences in
the petitions could somehow show that F had a motive to
exclude defendant from their child’s life. The narrow scope
of that ruling did not prohibit introduction of the petitions
for all purposes, but only limited evidence of the petitions if
offered as impeachment based on inconsistency between the
forms. Defendant evidently understood the narrowness of
the ruling: During cross-examination of F at trial, defendant
470 State v. Busch
freely asked F to confirm that she had filed a petition for a
restraining order on May 3.
Defendant’s assertion on appeal is not based on an
accurate portrayal of the record when he challenges the
trial court’s purported decision to “prohibit any evidence
before the jury that in early May 2018 [F] attempted to get
a restraining order against defendant.” Defendant does not
challenge the trial court’s narrow ruling that the petitions’
seeming inconsistencies were not a basis for impeachment.
And, there is no ruling for this court to consider of the
broader nature that he asserts. Therefore, we reject defendant’s first assignment of error.
In his second assignment of error, defendant challenges the admission of F’s statements to Officer Hodges as
insufficiently reliable under the domestic violence hearsay
exception, OEC 803(26). Defendant argues that because the
state did not present sufficient evidence of the reliability of
F’s statements and the trial court made no explicit finding
of reliability, the statements were inadmissible. The state
responds that there is sufficient evidence of the statements’
reliability in the record and that the trial court implicitly
agreed that the statements were reliable when it admitted
the statements under OEC 803(26). The state has the better
argument.
When reviewing the trial court’s ultimate determination that evidence is admissible under an exception to the
hearsay rule, we review for errors of law. State v. Ragibov,
272 Or App 22, 25,
353 P3d 1247 (2015). We will uphold the
trial court’s relevant preliminary factual determinations if
any evidence in the record supports them.
Id.
The domestic violence hearsay exception in OEC
803(26) provides that a victim’s report of domestic violence
is admissible if it is made “within 24 hours after the incident occurred” and it was (1) “made to a peace officer as
defined in ORS 161.015” and (2) exhibits “sufficient indicia
of reliability.” OEC 803(26); Niehus v. Belleque, 238 Or App
619, 624,
243 P3d 808 (2010), rev den,
349 Or 602 (2011). In
determining whether a statement has sufficient indicia of
reliability, OEC 803(26)(b) instructs the trial court to
Cite as
311 Or App 464 (2021) 471
“consider all circumstances surrounding the statement.
The court may consider, but is not limited to, the following
factors in determining whether a statement has sufficient
indicia of reliability:
“(A) The personal knowledge of the declarant.
“(B) Whether the statement is corroborated by evidence other than statements that are subject to admission
only pursuant to this subsection.
“(C) The timing of the statement.
“(D) Whether the statement was elicited by leading
questions.
“(E) Subsequent statements made by the declarant.
Recantation by a declarant is not sufficient reason for denying admission of a statement under this subsection in the
absence of other factors indicating unreliability.”
The factors used to determine a statement’s reliability listed
in OEC 803(26)(b) are not exhaustive. State v. Wilcox, 180
Or App 557, 562,
43 P3d 1182, rev den,
334 Or 632 (2002). If
a party alleges that the trial court made an error in admitting evidence under the domestic violence hearsay exception,
there was no error if the record discloses sufficient grounds
to conclude that the statements are reliable.
Id.
For the following reasons, the totality of the relevant
circumstances surrounding F’s statements to Hodges supply adequate grounds to support the statements’ reliability.
First, F’s statements to Hodges detailed her personal knowledge of the events that took place on May 8
and May 9. See OEC 803(26)(b)(A). Second, F’s description
of events was independently corroborated by physical evidence. See OEC 803(26)(b)(B). Consistent with F’s statements, two pairs of ripped underwear were discovered in the
apartment, F’s belongings were strewn haphazardly around
the apartment, and F had bruising and lacerations consistent with her description of defendant’s behavior. Third, F
relayed her statements to Hodges within 15 minutes of the
incident. See OEC 803(26)(b)(C). Fourth, there is no indication that Hodges used leading questions to elicit F’s version
of events. See OEC 803(26)(b)(D). Here, the evidence in the
record demonstrates evidence to satisfy reliability factors
472 State v. Busch
contained in OEC 803(26)(b). F’s statements were admissible under OEC 803(26).
In sum, the trial court did not impermissibly limit
defendant’s ability to cross-examine the victim and did not
error in admitting the victim’s statements under the domestic violence hearsay exception. We reverse and remand
defendant’s convictions for attempted first-degree sodomy
and FIP, remand for resentencing on the other counts, and
otherwise affirm.
Convictions on Counts 1 and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.
