33
Argued and submitted September 2, 2021; reversed on appeal, affirmed on
cross-appeal June 2, 2022
STATE OF OREGON,
Plaintiff-Appellant
Cross-Respondent,
v.
SIONE MOALA,
Defendant-Respondent
Cross-Appellant.
Multnomah County Circuit Court
18CR73992; A171258
511 P3d 1127
The state appeals a pretrial order that excluded a photograph of an injury on
the complainant, E’s, leg after the trial court concluded that the photograph constituted impermissible hearsay. Defendant cross-appeals from the trial court’s
order. He argues that the Court of Appeals lacks jurisdiction to consider the
state’s appeal. He also argues that the trial court erred in concluding that the
state could use other photographs of E’s injuries at trial. Held: In light of State v.
Jackson, 368 Or 705,
498 P3d 788 (2021), the court rejected defendant’s threshold
jurisdictional argument. In addition, because the photograph of E’s leg, at least
as of the pretrial hearing, was not intended to be offered to prove the truth of the
matter asserted, the trial court erred in excluding that photograph as inadmissible hearsay. Lastly, the trial court did not err in concluding that the additional
photos of E’s injuries would not be hearsay at the pretrial hearing.
Reversed on appeal; affirmed on cross-appeal.
Thomas M. Ryan, Judge.
Colm Moore, Assistant Attorney General, argued the
cause for appellant-cross-respondent. Also on the briefs were
Ellen F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Mark Kimbrell, Deputy Public Defender, argued the
cause for respondent-cross-appellant. Also on the briefs was
Ernest G. Lannet, Chief Defender, Criminal Appellate Section,
Office of Public Defense Services.
Before James, Presiding Judge, and Kamins, Judge, and
Joyce, Judge.*
______________
* Joyce, J., vice Lagesen, C. J.
34 State v. Moala
JOYCE, J.
Reversed on appeal; affirmed on cross-appeal.
Cite as 320 Or App 33 (2022) 35
JOYCE, J.
The state appeals a pretrial order that excluded a
photograph of an injury on the complainant, E’s, leg after
the trial court concluded that the photograph constituted
impermissible hearsay. Defendant cross-appeals from the
trial court’s order. He argues that we lack jurisdiction to
consider the state’s appeal. He also argues that the trial
court erred in concluding that the state could use other photographs of E’s injuries at trial; the trial court concluded
that, unlike the photograph of E’s leg, the other photographs
would not be hearsay. In light of recent Supreme Court precedent, we reject defendant’s threshold jurisdictional argument. We also conclude that because the photograph of E’s
leg, at least as of the pretrial hearing, was not intended to
be offered to prove the truth of the matter asserted, the
trial court incorrectly ruled that the photograph of E’s leg
would be hearsay; we therefore reverse on the state’s appeal.
Finally, we conclude that the trial court correctly ruled, as
of the time of the pretrial hearing, that the additional photos of E’s injuries would not be hearsay and thus affirm on
cross-appeal.
We address defendant’s jurisdictional argument
before turning to the merits of the appeals. Defendant
maintains that we do not have jurisdiction to consider the
state’s appeal because ORS 138.045(1)(d), the statute under
which the state appeals, does not authorize the appeal. ORS
138.045(1)(d) authorizes the state to appeal from “an order
made prior to trial suppressing evidence.” Defendant argues
that that statute was intended to apply only to orders deciding motions to suppress evidence that was obtained in violation of a defendant’s constitutional rights. Because the trial
court excluded the photograph here based on the Oregon
Evidence Code, and not any constitutional violation, defendant maintains that ORS 138.045(1)(d) does not permit the
state’s appeal.
After defendant filed his appeal, the Supreme Court
decided State v. Jackson, 368 Or 705,
498 P3d 788 (2021),
which squarely addressed the same jurisdictional question
that defendant raises here. In Jackson, the court rejected the
notion that ORS 138.045(1)(d) should be narrowly construed
36 State v. Moala
to encompass only those pretrial orders that involve a violation of a defendant’s constitutional rights.
368 Or at 713-15.
Under Jackson, we have jurisdiction over the state’s appeal.
We turn to the factual background underlying this
appeal. The relevant facts are few, undisputed, and largely
procedural. A grand jury indicted defendant for fourth-degree assault constituting domestic violence. Defendant
filed a motion in limine to exclude photographs of E taken by
a responding officer. The photographs depicted injuries on
E’s face, leg, and bare foot.1 The responding officer, Officer
Paisley, testified that when she first encountered E, E was
limping and wincing. E told Paisley that she was injured
and described the location of her injuries. As E was being
treated in an ambulance, Paisley could see a “clearly obvious” injury on E’s face. Paisley asked E to turn her face so
that Paisley could take photographs of that injury. The photographs of E’s face were close ups of the left side of her
face, which appeared to be red or bruised. The paramedics
were treating an injury on the E’s foot, which Paisley photographed. The photograph of E’s foot shows the inside of
E’s foot with an adhesive bandage placed over an apparent
injury. Paisley also observed that E “obviously [had] some
pain in her thigh and hip” so Paisley asked her to pull down
her legging. Paisley saw a red mark on E’s leg, which she
photographed. The photograph of E’s leg shows E slightly
bent over, her leggings pulled down, and her hand appearing to hold the waistband of her legging. On her leg is a
large welt or bruise.
During the pretrial hearing, defendant argued that
the photographs depicted nonverbal conduct that could be
understood as statements or assertions made by E. More specifically, defendant argued that E elevated her foot, pulled down
her pants, and kept her head still to allow the officer to take
the photographs. In defendant’s view, those actions depicted
nonverbal conduct by E, intended as an assertion, that the
state intended to offer for the truth of the matter asserted, i.e.,
1
In addition to the photographs, the officer also took “video stills” or “live
photos” of the same injuries. Each photo has a corresponding “live photo.” It
appears that the trial court, in ruling on the photographs, either admitted or
excluded the “live photo” that corresponded to the photograph. We refer to “photographs” and in doing so include the corresponding live photos.
Cite as 320 Or App 33 (2022) 37
that E had sustained injuries. Defendant thus argued that the
photographs “are all statements for the purpose of hearsay.”
Defendant also argued that the state could not authenticate
the photographs and that they were not relevant.
In response, the state argued that the photographs
would not be hearsay nor did they contain any movement,
gestures, sign language, or other communicative gestures
that it intended to offer as an assertion. Thus, the photographs would not be offered for the truth of the matter
asserted: that “E is announcing this is my injury[.]” So long
as the state could establish at trial that the photographs were
true and accurate depictions of what the officer observed,
the state argued that they would be admissible and authenticated. The state further argued that, in conjunction with
“very comprehensive admissions from the defendant” that
he beat E with a chair and his fists, the photographs of the
injuries were relevant to illustrate the injuries that were
caused by those acts.
At the conclusion of the hearing, the trial court
divided the photographs into two categories. The trial court
concluded that the state could use the photographs of injuries on E’s face and foot at trial because the officer “could
and did see” the injuries, and thus the photographs were
not intended to be offered as statements or assertions and
would not be hearsay. It rejected defendant’s arguments that
those photographs were not relevant, accepting the state’s
argument that the combination of defendant’s admissions
and the photographs of injuries would render the evidence
relevant. The court further concluded that the officer had
the “requisite personal knowledge for the admission of the
photographs that are consistent with her observations.”
In contrast, the court ruled that the state could not
use the photograph of E’s leg on the basis that the photograph depicted an act that was intended as an assertion—E
pulling down her leggings—and thus would constitute inadmissible hearsay. The trial court further ruled that, because
the foundation for the photograph “is based on hearsay
statements” of E, it should be excluded under OEC 901.2
2
Although defendant challenged the photograph on relevancy grounds as
well, the trial court did not grant defendant’s motion in limine on that basis.
38 State v. Moala
In light of those rulings, the state then asked that
it later be allowed to elicit testimony at trial from the officer
about her observations of E’s injuries. Defendant objected,
arguing that the officer’s observations were based on E’s
assertive conduct of pulling down her legging. The trial
court ruled that the state could not offer the officer’s personal observation because it “is inextricably intertwined
with the hearsay. The—the hearsay is where were you
injured, lifting your shirt. Whether it’s a picture of it or the
officer’s testimony of it, it’s inadmissible.”3
As noted, both parties appeal from those rulings.
We review for legal error. State v. Hartley, 289 Or App 25, 29,
407 P3d 902 (2017). Because we conclude that the trial court
incorrectly excluded the photograph of E’s leg, we reverse
the trial court’s order excluding that evidence. We otherwise
affirm.
Before explaining how the trial court erred, we
note the posture of this appeal and the limited record before
us. As the Supreme Court has noted, relying on a motion
in limine “presents its own obstacles.” State v. Pitt, 352 Or
566, 573,
293 P3d 1002 (2012). That is because “a trial judge
ruling on a motion in limine must rely on the parties’ representations and arguments about what they expect the evidence, including the challenged evidence, will demonstrate
during trial.”
Id. In contrast, a “challenge during trial to an
offer of evidence provides greater context for the trial judge
to assess issues concerning the admissibility of the proffered evidence in light of what has occurred in the course
of the trial.”
Id. The parties on appeal ask us to determine
whether the photograph is, or is not, inadmissible hearsay—
we decline to do so. The actual question before us is more
limited: whether the trial court could have properly concluded pretrial, based on the arguments in the motion
hearing, that the photograph could only be inadmissible
hearsay in the context of a trial. As we explain, on that
limited question, the trial court erred. But whether the
3
Counsel for defendant had referred to the photographs as showing that E
can “be seen raising her shirt.” There are no photographs of E doing so, and based
on the context and later arguments, it is apparent the references were to the photograph of E’s leg.
Cite as 320 Or App 33 (2022) 39
photograph will be inadmissible hearsay in the context of
the trial is a question for the future and one we offer no
opinion upon.
Turning to the pretrial ruling that is the actual
issue before us, “[i]t has long been established that a photograph is entitled to be received in evidence when a witness
testifies that the photograph accurately depicts the object[,]”
i.e., when the witness can authenticate the photograph. State
v. Miller, 6 Or App 366, 370,
487 P2d 1387 (1971). However,
with a variety of exceptions not applicable here, “[h]earsay
is not admissible.” OEC 802. Hearsay is “a statement, other
than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” OEC 801(3). A “statement” in turn includes
“[n]onverbal conduct of a person, if intended as an assertion.” OEC 801(1)(b). To determine whether a statement is
hearsay, a trial court must consider the “purposes for the
statement that the proponent offers.” State v. Bement,
363
Or 760, 768,
429 P3d 715 (2018).
Thus, if a photograph depicts nonverbal conduct
intended as an assertion—a “statement,” OEC 801(1)(b)—
and the photograph is offered to prove the truth of the matter asserted in the statement, then it contains hearsay. Cf.
Bonilla v. Matteson, No 120-CV-00806-NONE-HBK, 2021
WL 6135923 at *11 (ED Ca Dec 29, 2021) (noting that testimony describing the contents of photographs in which a
person could be seen “posing for a photograph while contemporaneously making hand signs meant to convey a message
of gang affiliation,” presented to show “gang membership of
the person making the hand sign,” is likely hearsay); cf. also
State v. Mayfield,
302 Or 631, 643,
733 P2d 438 (1987) (testimony recounting a victim’s manipulation of an anatomical
doll was offered to prove the truth of the matter asserted by
the victim’s nonverbal statement—that the defendant had
abused the victim in the ways demonstrated by her manipulation of the doll—and, thus, was inadmissible hearsay).
Here, we conclude that, even assuming the photograph
of the victim’s leg included a “statement,” the purpose for
which the photograph was offered was not to prove the truth
of that statement.
40 State v. Moala
As the state observed below and on appeal, it
intended to offer the photograph for a limited purpose: to
show the condition of E’s body at the time the officer met
with E. Assuming, without deciding, that the trial court correctly determined that E’s act of pulling down her leggings
was intended as an assertion, namely that it was conduct
intended to express “my leg is injured,” it is not that statement, or its truth, for which the state intended at trial to
introduce the photograph. Rather, the state intended to use
the photograph as evidence of the condition of E’s body at a
specific time, and the fact that the photograph also showed E
appearing to have pulled down her leggings was immaterial
to that purpose. Given that intention, at least as of the time
of the motion in limine and pretrial hearing, we conclude
that the purpose for which the state intended to use the photograph was not to prove the truth of the matter asserted by
E’s conduct-based statement and was not hearsay.4
We acknowledge that it is possible to characterize
the assertion—“my leg is injured”—and the purpose for
which the state sought admission of the evidence—to show
that E was injured—as being the same, in a general sense.
However, in our view, the critical point is that to the extent
that the photograph could be construed to contain a nonverbal statement by conduct, that has no bearing on the probative value of the photograph for the purpose for which the
state intended to have it admitted at trial.
Defendant argues that the state did not limit the
purpose for the photograph during the pretrial hearing.
But the fact that a factfinder may “use the statement for
other purposes is not material to the hearsay determination[.]” Bement, 363 Or at 768. Instead, that risk should be
addressed through use of a limiting instruction or other
limitation on the evidence.
Id. at 768-69, citing OEC 105
(“When evidence which is admissible … for one purpose
but not admissible … for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper
4
Our disposition of the state’s first assignment of error that the photograph
of E’s leg was not hearsay at the pretrial hearing also disposes the state’s second assignment of error that the officer’s testimony about the injuries that she
observed would be “inextricably intertwined” with the photograph that the trial
court incorrectly concluded as hearsay.
Cite as 320 Or App 33 (2022) 41
scope and instruct the jury accordingly.”). If during the
course of trial, the state attempts to expand its reliance on
the photograph for other purposes, defendant may request
an appropriate limiting instruction then. The same holds
true if the state attempts to introduce the photograph in
ways that are different from how, during the pretrial hearing, the state represented it intended to use the photograph.
But given the facts at the time of the pretrial hearing, we
cannot conclude as a matter of law that the photograph is
inadmissible hearsay. We thus conclude that the trial court
erred in concluding otherwise.
We likewise conclude that the trial court erred in
excluding the evidence under OEC 901. As noted above,
the trial court excluded the photograph of E’s leg because
its authentication depended on “hearsay statements” of E.
OEC 901 requires that evidence be authenticated before
it is admissible and requires the proponent of evidence to
establish “a prima facie case of authenticity,” or “evidence
‘sufficient to support a finding that the matter in question
is what its proponent claims.’ ” State v. Sassarini, 300 Or
App 106, 126,
452 P3d 457 (2019) (quoting OEC 901(1)). One
method of authentication is “[t]estimony by a witness with
knowledge that a matter is what it is claimed to be.”
Id. at
122 (quoting OEC 901(2)(a)).
Here, the evidence supporting the authenticity of
the photograph does not depend, as the trial court concluded,
on E’s statements. Rather, the state would be able to authenticate the photograph through the testimony of the officer
who took the photograph and personally observed what that
photograph depicted. So framed, that personal knowledge—
which does not rely on E’s statements—satisfies OEC 901’s
standard that the photograph of injuries is what the proponent of the evidence claims.
Our reasoning is also largely dispositive of defendant’s cross-appeal. As noted, defendant argues that the
trial court erred in concluding that photographs of E’s foot
and face would not be hearsay, were relevant, and were
properly authenticated. For the same reasons set forth
above, we reject defendant’s argument that the photographs
of the foot and face injuries, at least based on how the state
42 State v. Moala
represented it intended to use them at trial, would be inadmissible hearsay. Similarly, the officer’s testimony, based on
her personal observations, were sufficient to authenticate
the photographs of E’s face and foot.
We similarly reject defendant’s argument that the
state cannot establish the relevancy of the photographs of
E’s face and foot without E’s statements about her injuries.
The state presented evidence that defendant made admissions about beating E with a chair and his fists.5 One of the
elements that the state will have to prove for fourth-degree
assault is physical injury. ORS 163.160. In light of defendant’s admission that he beat E, evidence of E’s injuries
that existed immediately after the admitted assault would
plainly meet OEC 401’s low threshold for relevancy, regardless of any statements by E.
Reversed on appeal; affirmed on cross-appeal.
5
Defendant asserts that the state failed to make an adequate offer of proof.
But as the state observes, one way of making an offer of proof is for counsel to
state what the proposed evidence is expected to be. State v. Phillips, 314 Or 460,
466,
840 P2d 666 (1992). The prosecutor’s description of defendant’s admission
served as an adequate offer of proof.
