214
Argued and submitted December 3, 2021, affirmed January 26, petition for
review denied June 23, 2022 (369 Or 856)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TODD LEVI WILCOX,
aka Todd Wilcox,
Defendant-Appellant.
Jackson County Circuit Court
16CR46729; A170718
504 P3d 695
In this criminal appeal, defendant contests his conviction of murder, assigning error to, among other things, the trial court’s exclusion of an out-of-court
recording of defendant’s brother talking with police, and denial of a motion for
judgment of acquittal. On appeal, defendant argues that the recording was
admissible because it was offered for a nonhearsay purpose and the trial court
erred by excluding it as hearsay. Defendant also argues that since the evidence
of guilt was even as to whether defendant or defendant’s brother killed the
victim, the trial court erred by denying the motion for judgment of acquittal.
Held: Defendant did not adequately preserve for appeal his argument regarding the police recording because all argument at trial suggested he was seeking
an exception to the hearsay rule for admitting the recording. Moreover, even if
parts of the recording were admissible, defendant did not attempt to segregate
the admissible portions from the inadmissible portions, which precludes review
on appeal. Finally, the evidence was sufficient for the trial court, sitting as trier
of fact, to conclude that defendant killed the victim.
Affirmed.
Lorenzo A. Mejia, Judge.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Todd Levi Wilcox filed the supplemental
brief pro se.
Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
Cite as 317 Or App 214 (2022) 215
KISTLER, S. J.
Affirmed.
216 State v. Wilcox
KISTLER, S. J.
Defendant appeals a judgment of conviction for
murder constituting domestic violence. See ORS 163.115
(2015).1 We write to address two assignments of error—that
the trial court erred in not admitting defendant’s brother’s
out-of-court colloquy with the police and in denying defendant’s motion for a judgment of acquittal. We uphold without
discussion the other rulings that defendant challenges on
appeal and affirm the trial court’s judgment.
Defendant grew marijuana in Jackson County. He
lived in a doublewide trailer at the top of a hill on a sparsely
traveled lane. His brother Shane lived off and on in a trailer
a short distance below defendant’s doublewide trailer.
Although a defense witness explained that Shane usually
stayed in the lower trailer, she added that Shane was “kind
of transient, homeless, or stayed at the river or something.”
The victim was a young woman who had left college to work in defendant’s marijuana-grow operation. She
stayed some of the time in the lower trailer where Shane
lived and also in defendant’s doublewide trailer. One evening, defendant and the victim stopped by a neighbor’s
house to socialize. Defendant began drinking bourbon and
became increasingly intoxicated and belligerent towards the
victim. Among other things, he accused the victim of costing him approximately $165,000, apparently because of a
mistake she had made processing marijuana. Additionally,
the victim told the neighbor that defendant had headbutted
her earlier that day, although she denied that he had hurt
her.
The neighbor offered to call the police because she
was concerned for the victim’s safety, but the victim declined.
At approximately 10:00 p.m., the neighbor asked defendant
to leave because of the way he was talking to the victim.
The neighbor saw the victim stumble as she and defendant
walked to his car. The neighbor watched as defendant’s car
drove to the lower trailer, stopped briefly, and then continued uphill to defendant’s doublewide.
1
ORS 163.115 was amended in 2015 and again in 2019. See Or Laws 2015,
ch 820, § 46; Or Laws 2019, ch 634, § 28.
Cite as 317 Or App 214 (2022) 217
At 2:00 a.m. the next morning, defendant’s brother
Shane woke up another neighbor and asked if he could use
the neighbor’s phone to call 9-1-1. Shane explained that
defendant had come to his house, woken him up, and told
him that the victim had died from an overdose. Using the
neighbor’s phone, Shane told the 9-1-1 operator essentially
the same information and added that defendant had taken
a whole “scrip” of pills. Shane told the operator that the victim and defendant were at defendant’s house at the top of
the hill, that he did not know if the victim was breathing,
and that it could be a suicide attempt. Shane waited outside
the neighbor’s house for the emergency medical personnel
to arrive so that he could accompany them and the police to
defendant’s house.
When the emergency personnel got to the house,
they found the victim dead, propped up against a table in
the bedroom. There was blood all over the bedroom and
bathroom. The emergency personnel found defendant passed
out on a mattress in the bedroom, next to the victim’s body.
The emergency personnel were able to revive defendant, and
the police placed him under arrest. Later, defendant made
numerous statements that were introduced at trial.
Shane’s colloquy with the police. After the police
discovered the victim’s body and placed defendant under
arrest, they advised Shane of his Miranda rights and spoke
with him briefly. (The interview ended when Shane began
having seizures caused by alcohol withdrawal.) Shane’s colloquy with the officers divides into four parts. First, the officers asked Shane about an older cut on his arm and a fresh
mark near his eye, which Shane explained resulted from
“some guy” hitting him. Second, the officers sought to determine where Shane was sleeping when defendant woke him
up to tell him that the victim was dead. Third, Shane told
the officers that, after defendant woke him up, he followed
defendant up the hill to defendant’s house, where he saw the
victim, who did not appear to be breathing, and then saw
defendant take a “scrip” of pills. Shane explained that he
ran down the hill to find a phone so that he could call 9-1-1.
Fourth, Shane recounted defendant’s version of the events
that occurred the night of the victim’s death. Specifically,
Shane said that defendant told him that the victim had
218 State v. Wilcox
left the neighbor’s house before defendant, that defendant
arrived home later and found the victim stumbling around
and bleeding profusely from her mouth and nose, and that
defendant tried to revive the victim before fearing that
his efforts were unsuccessful. After that, he went to get
Shane.
At the time of trial, Shane could not be found, and
the parties stipulated that he was unavailable. When defendant sought to introduce Shane’s colloquy with the police,
the state objected that it was hearsay. Defendant responded
initially that Shane’s unavailability was sufficient, without more, to make his hearsay statements admissible. The
state pointed out, and the trial court agreed, that unavailability alone is not a sufficient basis for admitting hearsay. Defendant then argued that Shane’s statements were
admissible under three exceptions to the hearsay rule—
state of mind, excited utterance, and statements against
penal interest. Defendant also suggested that, even if the
rule against hearsay barred admitting the colloquy, due
process required its admission. The trial court disagreed
and sustained the state’s objection.
On appeal, defendant does not argue, as he did
below, that Shane’s colloquy with the officers was admissible
under an exception to the hearsay rule. Rather, he argues
that the colloquy was not hearsay because all or part of the
colloquy was not offered for the truth of the matter asserted.
Defendant’s appellate argument faces two related but separate preservation problems. First, the question whether a
statement is hearsay will vary depending on the purpose
for which it is offered. See OEC 801(3) (defining hearsay).
Defense counsel, however, never told the trial court that she
was offering Shane’s statements for any purpose other than
for the truth of the matter asserted. Indeed, all her arguments at trial rested on the premise that she was offering
the statements for the truth of the matter asserted, and she
contended only that the statements were admissible either
as an exception to the rule against hearsay or because due
process required their admission.2 Defense counsel failed
2
Defendant notes that, in arguing that due process required the admission of Shane’s hearsay statements, his lawyer told the trial court that Shane’s
Cite as 317 Or App 214 (2022) 219
to preserve the ground for admission that defendant now
raises on appeal. See State v. Wyatt,
331 Or 335, 343,
15 P3d
22 (2000) (preservation requires a clear, specific objection).
Defendant’s argument faces a second problem. The
Supreme Court has long recognized that, when a party
unsuccessfully offers evidence as a whole, without segregating admissible from inadmissible parts of the offer, the trial
court’s ruling sustaining an objection will be affirmed on
appeal if part of the offer is inadmissible. See State v. Brown,
310 Or 347, 358-59,
800 P2d 259 (1990) (stating rule); Biegler
v. Kirby,
281 Or 423, 426,
574 P2d 1127 (1978) (upholding
trial court’s ruling because the trial court was not required
to sort out admissible from inadmissible evidence). In this
case, most of Shane’s colloquy appears to have been offered
for the truth of the matter asserted. For example, Shane
recounted defendant’s exculpatory version of how the victim
died (she arrived at defendant’s house first, she was bleeding profusely when defendant came home, and defendant
attempted unsuccessfully to care for her injuries). Similarly,
Shane explained how he had run to the neighbor’s house to
find a phone to call 9-1-1, and he answered the officers’ questions about the injuries they observed on his arm and face.
For all that appears from the record, defendant offered those statements for the truth of the matter
asserted—to exculpate himself, to explain the events that
led to the emergency personnel entering his home, and to
support a conclusion that Shane had injuries to his face
that could have been inflicted by the victim. Even if Shane’s
statements regarding where he was sleeping were admissible for a nonhearsay purpose and even if the trial court
should have realized that defendant was offering part of
the colloquy for that purpose, defendant cannot object to the
trial court’s ruling when he failed to separate the admissible
statements about where he was sleeping were evasive and evidenced Shane’s
guilt. Defendant contends that the trial court should have realized that he
wanted to admit those statements for that reason, not for the truth of the matter
asserted. Defendant, however, made that argument to support his claim that
some of Shane’s statements came within a hearsay exception (statements against
penal interest) or were so central to his defense that due process required their
admission even if the hearsay rule barred them. All defendant’s trial arguments
rested on the premise that Shane’s statements were hearsay.
220 State v. Wilcox
part of the colloquy from the inadmissible part. Brown, 310
Or at 359.3
Defendant suggests alternatively that due process
required that Shane’s colloquy with the police be admitted. The cases that defendant cites, however, apply when a
state evidentiary rule arbitrarily bars admission of trustworthy evidence critical to a person’s defense. Chambers v.
Mississippi, 410 US 284,
93 S Ct 1038,
35 L Ed 2d 297 (1973);
State v. Cazares-Mendez/Reyes-Sanchez,
350 Or 491,
256
P3d 104 (2011). Defendant cites no case for the proposition
that Chambers applies when the excluded evidence would
have been admissible if offered for the right reason. In that
situation, post-conviction would seem to provide all the process that is due. Beyond that, Shane’s brief colloquy with the
officers can hardly be described as critical defense evidence.
Most of what Shane told the officers repeated either what
Shane said during his 9-1-1 call or statements that defendant made after his arrest, all of which were admitted at
trial.
One part of the colloquy that is not duplicated elsewhere in the record consists of Shane’s statements regarding where he was sleeping when defendant woke him.
Defendant argues that Shane’s responses to that series of
questions were evasive and gave rise to an inference of guilt.
Specifically, Shane told the officers that he was sleeping
in a trailer “just down the hill from [his brother’s] house,”
that the trailer was not on his brother’s property, that the
trailer was located “at a neighbor’s house,” and that the victim had stayed there “when she first got here.” Although
Shane’s statements are not without ambiguity, he appears
to have told the officers that there were three trailers—the
doublewide where his brother lived, a trailer below that on
his brother’s property, and a third trailer on someone else’s
property where the victim initially had lived. That reading
3
Defendant argues on appeal that every part of Shane’s colloquy could have
been admitted for some purpose other than the truth of the matter asserted. Even
if that is so, those purposes, if they exist at all, are far from apparent. Defendant
cannot fault the trial court for taking the premise of his trial argument at face
value—that Shane’s statements were being offered for the truth of the matter
asserted. For similar reasons, we are not persuaded by defendant’s argument
that any error in sustaining the state’s objection constitutes plain error.
Cite as 317 Or App 214 (2022) 221
of Shane’s statements is consistent with the testimony of a
defense witness, who told the court that there were three
trailers and that the victim initially had stayed at the third
trailer on a neighbor’s property below the other two.
Given that testimony, the trial court reasonably
could have inferred that Shane’s answers, although imprecise, permitted at most a weak inference that he was being
evasive. That is particularly true since any ambiguity in
Shane’s answers about where he was sleeping could have
arisen from (1) the fact that Shane was essentially a transient, as defendant’s witness had testified, (2) inartful questioning by the officers, who did not appreciate Shane’s fluid
living situation, and (3) Shane’s medical condition when he
spoke with the officers.4 To the extent that any evasiveness
on Shane’s part permitted a weak inference of guilt, that
inference is a far cry from the clear evidence of guilt, such
as a third party’s confession to murder, that gave rise to the
due process holdings in Chambers and Cazares-Mendez.
Motion for a judgment of acquittal. Defendant does
not dispute on appeal that the trier of fact reasonably could
find that whoever killed the victim did so with the requisite
mental state. As we understand his argument, he contends
that the only conclusion that a reasonable trier of fact could
draw was that the evidence was in equipoise as to whether
he or Shane had beaten the victim to death. It follows, he
concludes, that no reasonable trier of fact could find beyond
a reasonable doubt that he was the person who killed the
victim.
On that issue, the evidence permitted the trial
court, sitting as the trier of fact, to find that, shortly before
the victim died, defendant had been angry with her for supposedly ruining $165,000 worth of marijuana, that he had
headbutted her earlier that day, that he had become increasingly intoxicated and belligerent towards her at a neighbor’s
house, and that the neighbor had been sufficiently concerned
for the victim’s safety that she offered to call the police on
4
Before the trial court ruled on defendant’s due process argument, defendant introduced testimony that the medical condition that led to Shane’s seizure,
which in turn ended his colloquy with the officers, can result in hallucinations
and confusion.
222 State v. Wilcox
the victim’s behalf. Moreover, the court could find that, when
the police entered defendant’s house, they found defendant
passed out next to the victim, who had been beaten to death.
As noted, after the police placed defendant under
arrest, he made numerous statements. Among other things,
he said that he and the victim had been at the neighbor’s
house, that they had gone home, that she had overdosed
on cocaine, that she had “faceplanted” on the stairs, that
she was bleeding profusely from her mouth and nose, that
he tried to staunch the bleeding from her chin with duct
tape, that he had dragged her into the bathtub to reverse
the effects of her drug overdose and accidentally caused
her head to hit the side of the tub, and that he had tried
to revive her for two-and-a-half hours. He said that, when
those efforts proved unsuccessful, he could not find his cell
phone and woke up his brother Shane to go for help.
Although defendant argues that the only conclusion that the trial court reasonably could have reached was
that it was equally possible that Shane could have beaten
the victim at the lower trailer before taking her body up to
defendant’s doublewide trailer and dropping it off, the trial
court reasonably could have found otherwise. The trial court
reasonably could have inferred from defendant’s statements,
set out above, that only defendant had been with the victim
from the time she left the neighbor’s house unharmed until
her death. Moreover, defendant never said that Shane had
any connection to the victim’s injuries, and the trial court
reasonably could have found that, unlike defendant, Shane
had neither a motive nor an opportunity to harm the victim.
Finally, the trial court could have credited the neighbor’s
testimony that, when Shane arrived at his house to call
9-1-1, the neighbor did not notice any blood on Shane that
would suggest that Shane was the one who had beaten the
victim.
To be sure, at trial, defendant called a different
neighbor to testify, who said that, the day after the victim’s
death, he saw Shane cleaning blood off the walls of the victim’s room in the lower trailer. However, the witness also
testified that he had not seen any blood at the upper trailer
where the victim’s body was found, aside from a spot of blood.
Cite as 317 Or App 214 (2022) 223
Given the amount of blood where the victim was found, the
trial court was not required to credit the witness’s testimony.5 Additionally, the trial court was not required to find
that the evidence as to who killed the victim was in equipoise, nor did it err in denying defendant’s motion for a judgment of acquittal.
Affirmed.
5
The witness made a gratuitous statement during his testimony that the
government had “jerry-rig[ged his] phone so I have to talk to them,” which also
could have led the court to doubt the accuracy of the witness’s observations.
