State v. H. D. E.

                                       718

            Submitted on remand February 9, affirmed May 3, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                             H. D. E.,
                      Defendant-Appellant.
                   Umatilla County Circuit Court
                      19CR07787; A171975
                                   

    Defendant appealed a judgment of conviction for initiating a false report,
raising two assignments of error. In a prior opinion, the Court of Appeals reversed
the conviction based on defendant’s first assignment of error. The Supreme Court
reversed and remanded for consideration of the second assignment of error,
related to the admission of prior bad acts evidence. Held: The trial court’s speaking verdict, considered in context, demonstrates that any error in admitting that
evidence was harmless.
    Affirmed.



   On remand from the Oregon Supreme Court, State v.
H. D. E., 

, 

 (2022).
    Jon S. Lieuallen, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    KAMINS, J.
    Affirmed.
Cite as 

 (2023)                             719

        KAMINS, J.
         This case is before us on remand from the Supreme
Court. Defendant was convicted, following a bench trial, of
initiating a false report, ORS 162.375, for falsely reporting
to police that a doctor had assaulted two of her children
in his waiting room. In the underlying appeal, defendant
raised two assignments of error. The first assignment contended that the trial court erred in denying her motion for
judgment of acquittal (MJOA), and the second assignment
challenged the admission of evidence relating to defendant’s
prior convictions for perjury and initiating a false report.
We agreed with defendant’s first assignment of error and
reversed. State v. H. D. E., 

, 

 (2021) (H. D. E. I), rev’d and rem’d, 

, 

 (2022) (H. D. E. II).
          The Supreme Court disagreed with our interpretation of ORS 162.375, reversed our decision, and remanded
the matter for further proceedings. H. D. E. II, 

.
We understand that our limited task on remand is to consider defendant’s second assignment of error, which we did
not reach in H. D. E. I, 

 n 1. Defendant
assigns error to the admission of prior bad acts evidence
about her prior convictions for perjury and initiating a false
report, which the trial court ruled was relevant to prove
financial motive and knowledge of the reporting process.
The state contends that any error in admitting that evidence
was harmless. Having reviewed the record, we agree with
the state that the trial court’s speaking verdict, considered
in context, demonstrates that any error in admitting defendant’s prior acts was harmless. State v. Reed, 

, 

 (2019), rev den, 

 (2020) (“If
error is harmless, this court is required to affirm a defendant’s conviction even when a trial court commits error; and
error is harmless if there is little likelihood that the error
affected the verdict or substantially affected the defendant’s
rights.” (Citation omitted.)).
         In assessing the impact of potential evidentiary
error in a bench trial, “the court’s speaking verdict and other
comments must be considered in context, taking into account
the circumstances in which the court made its observations
720                                           State v. H. D. E.

and the extent to which the court’s explanation of its verdict
sheds light on how it viewed the evidence.” Id. at 689. In this
case, the trial court did not mention the challenged evidence
in its speaking verdict, nor did it base its findings on defendant’s credibility, who did not testify. Although it is true
that “a trial court’s failure to mention contested evidence
when explaining its disposition does not necessarily establish that any error in admitting that evidence was harmless,” it is clear from the trial court’s comments that it based
its verdict almost exclusively on evidence of what happened
in the waiting room that day. State v. Klontz, 

, 

 (2013) (admission of prior bad acts
evidence was harmless where the court’s speaking verdict
did not mention the contested evidence and instead focused
on the victim’s credibility).
         Defendant reported to police that the doctor had
yelled at her children, got in their face, pushed one of
them into a refrigerator, causing him to hit his head, and
pushed another into a chair, causing a bruise. The trial
court explained that it found defendant guilty based on the
assault allegations, because it did not “see that there’s any
substantiation of those … and all the actual evidence is
to the contrary.” The court clarified that if defendant had
only reported “that he was harassing [her] children, yelling and screaming at [them], disorderly conduct-type stuff,
I wouldn’t find [she] had violated the law.” The court then
mentioned the surveillance video that captured most of the
incident, except for “a little brief moment off the corner,” and
which showed that the doctor was “upset,” but not that he
ever made contact with the children. The trial court finally
stated, “whether it’s through the doctors, nurses, and/or
[defendant’s] own statements, they don’t match up,” referring to the medical records and testimony of an ER nurse
who examined one of the children afterward and did not see
any sign of injury.
         The foregoing demonstrates that the trial court
viewed its role as comparing the specific allegations in
defendant’s report to other evidence about what happened
in that waiting room. It “expressly identified the evidence
that it found determinative”—the video and the medical
records—and “nothing in the record causes us to doubt
Cite as 

 (2023)                             721

its explanation.” State v. Sanchez-Chavez, 

, 

, rev den, 

 (2021) (admission of
the defendant’s statements was harmless because the trial
court based its verdict on the physical evidence and the testimony of the victim and the victim’s mother); see also State
v. Rashad, 

, 

 (2021) (evidentiary error was harmless where the court’s speaking verdict
demonstrated that “its credibility determination turned on
the testimony of a third-party witness, which corroborated
the victim’s version of events and flatly contradicted defendant’s”). In that context, the trial court’s failure to mention defendant’s prior bad acts indicates that they were not
significant to its findings. Sanchez-Chavez, 

 (highlighting the importance of context in determining that where the trial court “expressly identified the evidence on which it relied” and did not mention the challenged
evidence, “we understand that omission to mean that the
court did not consider [the challenged evidence] significant
to its findings” (emphasis in original)). As a result, there
is little likelihood that the prior acts evidence affected the
verdict.
        Affirmed.