State v. Rytting

                                      828

         Argued and submitted June 2, 2021, affirmed March 22, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     KARI LYNN RYTTING,
                       Defendant-Appellant.
                   Umatilla County Circuit Court
                     18CR49400, 19CN00274;
                    A172044 (Control), A172045
                                  

     Defendant appeals from a judgment of conviction for failure to appear in the
first degree, ORS 162.205, and contempt of court, ORS 33.015 and ORS 33.065.
She assigns error to the trial court’s admission of two signed release agreements
over her objections, contending that the admission of the release agreements
violated her confrontation rights under the Sixth Amendment to the United
States Constitution because they are testimonial. Held: The trial court did not
err, because the forced release agreements were not testimonial. The Court of
Appeals noted that the challenge on appeal was to the document as a whole, not
to individual statements contained within the document. The court concluded
that the release agreements were not prepared as part of an investigative law
enforcement request, and serving as prima facie evidence was not the agreements’ primary purpose.
    Affirmed.



    Daniel J. Hill, Judge.
   Peter Klym, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jeff J. Payne, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Kamins, Presiding Judge, and Lagesen, Chief Judge,
and James, Judge pro tempore.
    JAMES, J. pro tempore.
    Affirmed.
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        JAMES, J. pro tempore

         Defendant was tried to the court on two counts of
failure to appear in the first degree, ORS 162.205, in Case
No. 18CR49400 (Counts 1 and 2), and one count of contempt of court, ORS 33.015 and ORS 33.065, in Case No.
19CN00274 (contempt count). On the failure to appear
counts, the court acquitted defendant on Count 1 and convicted on Count 2, based on defendant’s violation of a forced
release agreement—a type of release agreement jails use to
manage overcrowding. The trial court also found defendant
in contempt.

         Defendant appeals, making two assignments of
error. In one, she challenges the trial court’s denial of her
motion for judgment of acquittal on the contempt count.
We conclude that the evidence, viewed in the light most
favorable to the state, was sufficient to survive a motion for
judgment of acquittal and reject that assignment of error
without further discussion. In her other assignment of error,
which goes to the failure to appear count on which she was
convicted, defendant argues that the trial court erred in
admitting two signed release agreements over her objections, contending that the admission of the release agreements violated her confrontation rights under the Sixth
Amendment to the United States Constitution because they
are testimonial. We conclude that, based upon this record,
and based upon the arguments the parties made, the forced
release agreements in this case were not testimonial and
affirm.

         All of the relevant events took place in 2017.
Defendant was released from the custody of the Umatilla
County Jail on February 21 in Case No. CF150748 and
signed a sworn release agreement. After she failed to appear
on July 10, a warrant was issued, and she was taken into
custody. While in custody, she appeared again in court on
July 27, and she was instructed to appear again on August 2.
On July 28, she signed a second release agreement, which
we reproduce below:
830                                                      State v. Rytting




After being required to sign that agreement, defendant
was again released.1 She subsequently failed to appear on
August 2.
        Defendant was charged with two counts of failure
to appear: Count 1, based on failing to appear on July 10,
    1
      The two release agreements at issue are functionally identical, with only
the court dates differing.
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violating the first agreement, and Count 2, based on failing to appear on August 2, violating the second agreement. At trial, the release agreements were admitted into
evidence over defendant’s objection that they violated the
Confrontation Clause of the Sixth Amendment.
         The state called one witness—a judicial specialist
the Umatilla Circuit Court employed. The trial court determined that the specialist was the custodian of the court
records, which constituted business records. The specialist
identified defendant as the defendant in Case No. CF150748
and testified to the contents of the release agreements
and defendant’s failures to appear as recounted above.
Defendant was convicted of Count 2, failure to appear in the
first degree, a Class C felony, based on failing to appear on
August 2, 2017, violating the second release agreement.
         On appeal, defendant argues that the statutes creating forced release agreements, ORS 169.046 and ORS
169.064, demonstrate that the primary purpose of the
agreement is to create evidence for a criminal prosecution. Therefore, she argues, the forced release agreements
are testimonial and require confrontation under the Sixth
Amendment.2 The state responds that “[w]hile it might have
been foreseeable that the agreements could be used in a
criminal prosecution, the more immediate and predominant
purpose was to ensure that defendant would appear at her
court dates.” Furthermore, the state argues that the legislative history shows the purpose of the release agreements
is “to ensure the smooth functioning of the court system by
stopping the constant cycling through the system of offenders who repeatedly flouted court dates, resulting in the
waste of judicial resources.” Moreover, the state contends
that “[w]hile it may at some future point be used in a prosecution, [the release agreement] is given to all defendants
who are released due to a jail population emergency and is
therefore kept in the normal course of court operations for
reasons other than facilitation possible future prosecution.”
        We review whether a statement is testimonial for
the purposes of the Sixth Amendment for legal error. State
    2
      Defendant confines her argument to her confrontation rights under the
Sixth Amendment and not under Article I, section 11, of the Oregon Constitution.
832                                           State v. Rytting

v. Starr, 

, 

, rev den, 

 (2015).
         The Sixth Amendment applies to the states via the
Fourteenth Amendment, Pointer v. Texas, 

, 400-
01, 

, 

 (1965), provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right …
to be confronted with witnesses against him.” In Crawford,
the Court held that the Confrontation Clause prohibits the
admission of out-of-court statements that are testimonial in
nature unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant
concerning the statements. Crawford v. Washington, 

, 

, 

 (2004). A testimonial
statement is “typically a ‘solemn declaration or affirmation
made for the purpose of establishing or proving some fact.’ ”

 (brackets and citation omitted).
           To determine whether a statement is testimonial
under the Sixth Amendment, we evaluate its primary purpose. State v. Copeland, 

, 

 (2013).
Following Melendez-Diaz v. Massachusetts, 

, 

, 

 (2009), business and public records
generally do not raise confrontation concerns because they
have “ ‘been created for the administration of an entity’s
affairs and not for the purpose of establishing or proving
some fact at trial—they are not testimonial.’ ” Copeland, 

 (quoting Melendez-Diaz, 

). However,
to determine whether or not a forensic analyst’s report was
testimonial, the Melendez-Diaz court looked to the facts that
(1) the document provided precisely the same information
that a witness “ ‘would be expected to provide if called at
trial[;]’ ” (2) it was prepared in response to an investigative law enforcement request; and (3) its sole purpose was
to provide prima facie evidence in a criminal proceeding.
Copeland, 

 (discussing Melendez-Diaz).
         In Copeland, the defendant argued that a deputy’s
certificate of service for a restraining order was testimonial
and required confrontation under the Sixth Amendment.

. The court disagreed, reasoning that the certificate
could be distinguished from the testimonial forensic reports
in Melendez-Diaz. First, the certificate of service was not
Cite as 

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prepared in response to a request made by law enforcement
during the course of an investigation. 

. Second,
the statutes governing the service of process demonstrated
that the certificate was made for the primary purpose of the
“administration of an entity’s affairs.” 

 The sheriff had a
legal duty to personally serve the restraining order. That
duty was defined by statute and entailed “[t]he routine fulfillment of those duties” that “ensures that respondents in
restraining order proceedings receive the notice which they
are statutorily … entitled ….” 

 Moreover, the fact that
the document was offered to prove an element of a crime in a
subsequent prosecution was not dispositive for determining
whether or not it was testimonial. 

.

          As Copeland explained, decisions subsequent to
Melendez-Diaz that look to the primary purpose of the statement reinforce these distinctions. 

. In Williams
v. Illinois, 

, 

, 

 (2012),
an expert witness testified in a rape trial that a DNA profile a private laboratory produced from vaginal swabs taken
from the rape victim matched a DNA profile a police laboratory produced from a sample of the defendant’s blood.

. The Williams plurality determined that
the testimony did not violate the Confrontation Clause, and
that even if the prosecution had elicited testimony about
the laboratory report to establish its truth, there would not
have been a violation. Copeland, 

 (discussing Williams). The Williams plurality applied an objective
test to determine “ ‘the primary purpose that a reasonable
person would have ascribed to the [out-of-court] statement,
taking into account all of the surrounding circumstances.’ ”

 (quoting Williams, 

). Because the primary
purpose of the report “was not ‘to accuse [the defendant]
or create evidence for use at trial,’ ” the laboratory technicians had no incentive to fabricate the report. 

 (quoting
Williams, 

). The Williams plurality left unsettled the specific inquiry to determine whether the primary
purpose of an out-of-court statement is testimonial. 

        The Court clarified its primary purpose standard
in Ohio v. Clark, 

, 

, 2180, 

 (2015). See also United States v. Fryberg, 

                                                      State v. Rytting

1126, 1134-35 (9th Cir 2017) (“ ‘The “primary purpose” of a
statement is determined objectively.’ United States v. Rojas-Pedroza, 

 (9th Cir 2013) (‘That is, the relevant inquiry is not the subjective or actual purpose of the
individuals involved in the particular encounter, but rather
the purpose that reasonable participants would have had,
as ascertained from the individuals’ statements and actions
and the circumstances in which the encounter occurred.’)”).
The Oregon Supreme Court has understood Clark to reaffirm the reasoning in Copeland, which concluded that “[i]f
a statement is ‘not made [or elicited] with the primary purpose of creating evidence for [the defendant’s] prosecution,’
then the statement is not testimonial.” State v. Rafeh, 

, 

 (2017) (quoting Clark, 135 S Ct at
2182 (brackets in Rafeh)).
          In Rafeh, the defendant refused to submit to a blood
alcohol test, and her license was suspended. Id. at 425. She
was stopped again during the suspension and cited for driving while suspended (DWS). Id. In her DWS trial, the defendant challenged the admission of a certification, which she
had received, that the state intended to suspend her license,
claiming that it violated her right to confrontation. Id. The
Rafeh court determined that the primary purpose of the certification was for use in an administrative proceeding, not
in a criminal proceeding. Id. at 430. It analogized the certification to the certificate of service in Copeland, concluding
that, even though it was possible the certification could be
used in a future criminal proceeding, “the likelihood that
the certification would be relevant in a future criminal
DWS trial depends on the occurrence of … multiple contingencies,” such as whether the defendant drove while her
license was suspended, was discovered doing so, and was
charged with DWS. Id. Based on those various contingencies, the Rafeh court understood the certification as primarily administrative, in contrast to the forensic certification in
Melendez-Diaz, which was prepared exclusively to furnish
evidence in a criminal proceeding against the defendant.3
    3
      A question Rafeh raised but left unanswered is the extent to which other
features of the Implied Consent Combined Report at issue in that case contained
statements that might have served a testimonial purpose. For example, the
defendant pointed to statements in the report that concerned whether officers
Cite as 

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         Numerous courts have relied on the distinction
between a document that will be used for a criminal prosecution as opposed to one that could be used to discern the
primary purpose of the statement. See People v. Nunley, 

, 

, cert den, 

(Mich 2012) (concluding that a certificate of mailing is not
testimonial and identifying additional authorities in agreement from two other state supreme courts); United States v.
Bustamante, 

 (9th Cir 2012) (concluding that a document containing a transcription of information from a birth certificate was testimonial because it was
not a copy and was, in essence, “an affidavit testifying to
the contents of … birth records” that had been prepared
“for the purpose of [a previous] investigation into [the defendant’s] citizenship”); State v. Carter, 

,

 (2010), rev den, 

 (2011) (concluding that a bench warrant did not constitute a testimonial
statement because it was created for the administration of
the trial court’s process rather than to prove some fact at
trial).
          We turn now to defendant’s argument that the
signed release agreements were testimonial and required
confrontation. And we begin with some clarification of what
is not at issue in this case. First, as is apparent from the
release agreements, and unlike a typical lab report, there
are multiple potential speakers. The dates of future court
proceedings appear to be the statements of court staff. The
statement, “I have read this agreement, or had it read to
me, and I understand the terms contained herein,” followed
by defendant’s signature, purport to be the statements of
defendant herself. Then, the statement “subscribed and
sworn before me” appears to be the statement of the corrections officer that obtained defendant’s signature. On appeal,

had probable cause to make an arrest for driving under the influence of intoxicants. Id. at 437. The court did not evaluate whether the primary purpose of
including those statements was administrative because the Rafeh defendant had
not objected to the admission of those statements. Id. at 437-38. In addition, the
court did not reach the question of whether the purpose of preprinted statements
in the report was to memorialize evidence for use in a criminal proceeding. Id.
The inquiry was focused on the specific statement challenged, which was the certification that the defendant had received notice of the state’s intent to suspend
her driver’s license.
836                                              State v. Rytting

defendant does not parse these various statements, nor
make individualized arguments. Nor does defendant raise
an argument concerning compelled testimony. Defendant’s
sole argument is that the document as an undifferentiated
whole is testimonial under the United States Constitution.
         Given defendant’s argument, our task is to examine
the primary purpose of the release agreements. That examination is objective, aimed at discerning what a reasonable
person would ascribe to the statement, considering all of the
surrounding circumstances. Williams, 

. In
Copeland the Oregon Supreme Court expressed its understanding of Melendez-Diaz that there, the court focused on
whether an item of evidence (1) provides precisely the same
information that a witness “ ‘would be expected to provide if
called at trial[;]’ ” (2) was prepared in response to an investigative law enforcement request; and (3) has as its sole purpose providing prima facie evidence in a criminal proceeding. 

 (quoting Melendez-Diaz, 

).
We follow that same path of reasoning.
        We begin with the statutes authorizing the release
agreements and criminalizing the violation of it. ORS
162.205 provides:
      “(1) A person commits the crime of failure to appear in
   the first degree if the person knowingly fails to appear as
   required after:
       “(a) Having by court order been released from custody
   or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge
   against the person of having committed a felony; or
      “(b) Having been released from a correctional facility
   subject to a forced release agreement under ORS 169.046
   in connection with a charge against the person of having
   committed a felony.
       “(2) Failure to appear in the first degree is a Class C
   felony.”
         The requirements for the “forced release agreement”
specified in ORS 162.205(4) are codified in ORS 169.046,
and they include the following provisions:
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       “If it becomes necessary to order the release of adults
   in custody under ORS 169.042 to 169.046, the sheriff may
   place adults in custody on forced release subject to a forced
   release agreement. A forced release agreement must be in
   writing and be signed by the sheriff and the adult in custody and must include:
       “(a) The date of the next court appearance of the adult
   in custody;
       “(b) A statement that the adult in custody is required
   to appear at the next court appearance; and
       “(c) A statement that failure of the adult in custody to
   appear at the next court appearance is subject to prosecution under ORS 162.195 or 162.205.”
ORS 169.046(4).
         The release agreement is often essential to proof
of the crime of failure to appear, ORS 162.205(1)(b). We
have held that in order to convict a defendant for failure
to appear, the state must prove the requisite mental state,
which requires a showing that the defendant failed to
appear with an awareness that they are failing to appear at
a particular time and location after being ordered to do so.
State v. Servatius, 

, 

 (2017).
In this case, the release agreements bear defendant’s signature, signaling that she knew both that she must appear
on August 2 and that her failure to appear would constitute
a crime. But defendant does not explain how her own statements constitute a confrontation violation.
         The agreements also contain an official’s attestation, stating that defendant executed the agreements. The
admission of the agreements, over defendant’s objection,
deprived her of the ability to cross-examine the official
whose signature attests that he or she witnessed defendant
execute it. The “crucible of cross examination” is fundamental to our system of adjudication, Crawford, 

,
and defendant’s inability to employ that essential tool in her
defense threatens to impinge on her right to be confronted
with witnesses against her. At common law, “ ‘[t]he principal evil at which the Confrontation Clause was directed
was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against
838                                          State v. Rytting

the accused.’ ” Hemphill v. New York, ___ US ___, 

, 690, 

 (2022) (quoting Crawford, 

). The Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination.” Crawford, 

. As the Court has explained,
that command applies to testimonial evidence regardless of
whether it qualifies for admission under the hearsay rules.

 And testimonial evidence includes “ex parte in-court testimony or its functional equivalents—that is, material such
as affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to
be used prosecutorially.” 

.
          In People v. Pacer, the Court of Appeals of New
York determined that an affidavit a Department of Motor
Vehicles official prepared describing the agency’s revocation
and mailing procedures was testimonial under Crawford.

, 

 (NY 2006). The state had
argued that even though the affidavit was a sworn document
a government official prepared specifically for the prosecution’s use at trial, the affidavit was admissible as a business
record or public record and therefore outside the scope of
the Confrontation Clause. Id. at 1151. The court found that
statement was a “direct accusation of an essential element
of the crime” regarding the defendant’s mens rea, and that
because no other evidence was presented to satisfy that element of the crime, “the affiant is the closest the People come
to having a ‘witness’ to prove that defendant knew or should
have known of the revocation.” Id. at 1152. Without the ability to cross-examine the affiant, the court expounded that
the defendant was unable to challenge an essential element
in the state’s case, including to inquire about the affiant’s
“information and belief” that the notice had been mailed,
the frequency of mistakes in mailing revocation notices, the
possibility that there were other drivers in the database with
the same name as the defendant, whether the notice was
returned undeliverable, or whether the affiant could reliably
testify about the procedures as they had existed 16 years
earlier. Id. at 1153. The court concluded that “the lack of a
live witness to confront eliminated defendant’s opportunity
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to contest a decisive piece of evidence against him. This is
exactly the evil the Confrontation Clause was designed to
prevent.” Id. at 1153-54.
         In the instant case, the only way for defendant to
challenge her signature on the forced release agreements—a
form that serves as evidence of an essential element of a
felony—would be to testify in her own defense. Otherwise,
given that the agreements were admitted under the business records exception to the hearsay rule, defendant could
only cross-examine the custodian of records to challenge the
legitimacy of her signature on the agreements, not the official whose name appears on the agreements to certify defendant’s attestation. That fact weighs in favor of the agreements being testimonial, but it is not dispositive.
         We next ask whether the release agreements were
prepared as part of an investigative law enforcement request.
It indisputably was not. That weighs against its testimonial
nature.
         We then turn to whether the release agreements’
primary purpose was to provide prima facie evidence in a
criminal proceeding. A review of the legislative history of
the release-agreement statutes is not conclusive. On the one
hand, the state claims that the legislative history shows
that a forced release agreement “is made for the primary
purpose of ‘administration of an entity’s affairs,’ that is, the
smooth functioning of the court system. … It is designed
to provide the defendant with official written notice about
future court dates and the possible consequences if he or
she fails to abide by the agreement.” But, as the state itself
acknowledges, the purpose of ORS 169.046 was to correct
an inability to prosecute failures to appear by empowering
sheriffs to release prisoners, utilizing a triggering mechanism agreement, so that those released could then be prosecuted if they failed to appear. Before the enactment of ORS
169.046, only prisoners released under the authority of the
court could be prosecuted for failure to appear.
         A District Attorney’s Association representative’s
committee testimony evidences both the statute’s administrative purpose and its design to facilitate prosecution:
840                                              State v. Rytting

   “[The bill is intended to] get rid of disconnect authority,
   provide a uniform process for these emergency releases and
   yet allow for the capability of a failure to appear prosecution where we have these people–and where I would see
   this being used is the constant person churning the system.
   They get arrested, they are not a candidate for court release
   because they have failures to appear or other things. They
   don’t post bail, but they are released very quickly because
   of the emergency cap on the jail; they are one of the least
   dangerous offenders in the jail. And so they don’t show up
   for court and they just keep circling through. And nothing
   really can happen then[.]”
Audio Recording, Senate Committee on Judiciary, SB 168,
Feb 2, 2001, at 0:00-6:00 (statement of Marion County
District Attorney Dale Penn).
         The legislative history thus shows that the creation
of release agreements served a dual purpose: prosecution
and administration. Certainly, the agreements served a
purpose of serving as prime facie evidence, but it cannot be
said that it was the sole purpose, as was the document at
issue in Melendez-Diaz.
         As is evident, the considerations here cut both ways,
and make this a close case. We acknowledge that the use
of the release agreements here has some troubling aspects
that mirror the concerns the Court of Appeals of New York
in Pacer expressed. Again, we emphasize that we are not
called upon here to assess individual statements within
the release agreements, but to adjudicate solely the release
agreements as undifferentiated documents. Ultimately, we
are not persuaded that the release agreements were testimonial for purposes of the Sixth Amendment. Our survey
of other jurisdictions shows that similar business and public records have been challenged under confrontation theories, but few, if any, have succeeded. See Jeffrey Bellin &
Diana Bibb, The Modest Impact of the Modern Confrontation
Clause, 89 Tenn L Rev 67, 106 (2021) (finding that out of
25 cases sampled in the federal appeals courts, the courts
found a Confrontation Clause violation in only one; concluding that “[c]ourts interpret the business records exception to
require that qualifying records were created for ‘the administration of the [business’s] affairs and not for the purpose
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of establishing or proving some fact at trial’ ” and, thus, that
“it should be rare that a proper application of the business
records hearsay exception would result in the admission
of a testimonial statement” (brackets in original)). Most
importantly, we can find no instance of a similar jail release
agreement ever being held testimonial, in any jurisdiction.
On this record, we are unpersuaded that we should blaze
that trail.
        Affirmed.