282 April 24, 2024 No. 275
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DOUGLAS CARROLL LEVINE,
Defendant-Appellant.
Washington County Circuit Court
22CR07736, 21CR39975, 20CN01644, 21CR13926;
A178572 (Control), A178573, A178574, A178575
Ricardo J. Menchaca, Judge. (Judgment entered April 12,
2022)
Janelle F. Wipper, Judge. (Judgment entered April 8, 2022)
Argued and submitted February 07, 2024.
Francis C. Gieringer, 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.
Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
JOYCE, J.
In Case No. 22CR07736, conviction for fourth-degree
assault reversed and remanded; otherwise affirmed. In
Case No. 21CR39975, Case No. 20CN01644, and Case No.
21CR13926, affirmed.
Nonprecedential Memo Op: 332 Or App 282 (2024) 283
JOYCE, J.
Defendant appeals from a judgment of conviction
for fourth-degree assault constituting domestic violence.1
Defendant’s conviction arises from an incident in which he
allegedly struck his partner, L, multiple times. He raises
six assignments of error. Because we conclude that the trial
court erred in not allowing defendant to use L’s grand jury
testimony as substantive evidence, and because we conclude
that that error was not harmless, we reverse. Our reversal
on those claims of error (assignments of error one through
three) obviates the need for us to address his remaining
three assignments of error.
In his first three assignments of error, defendant
challenges the trial court’s exclusion of L’s grand jury testimony as substantive evidence. Before the grand jury, L testified that she did not feel pain in her head or hand after the
incident, that she kicked defendant during the events that
resulted in her injuries, and that she has a “spotty” memory. At trial, L testified that she lied to the grand jury and
did so because she wanted to maintain a relationship with
defendant. In contrast to her grand jury testimony, L testified at trial that she suffered significant pain because of
defendant’s assault and that she did not remember kicking
defendant.
Defendant sought to admit her grand jury statements both to impeach L’s credibility and as substantive
evidence—that is, to prove the content of L’s statements to
the grand jury. The trial court admitted the statements as
impeachment evidence but refused to allow them as substantive evidence. The trial court allowed defendant to play
a clip of L’s grand jury testimony that she had not suffered
pain as a result of the assault but did not allow defendant to
play (or admit as exhibits) the parts in which she testified
that she had kicked defendant and had a spotty memory.
On appeal, defendant argues that L’s grand jury
statements were inconsistent with L’s trial testimony and
thus admissible for their substance under OEC 801(4)(a)(A).
1
This case is consolidated with three others. Defendant challenges only the
conviction in this case, which involved only one count of fourth-degree assault.
284 State v. Levine
The state concedes error; its concession is well founded, and
we accept it. However, the state maintains that the error
is harmless. See State v. Davis, 336 Or 19, 32,
77 P3d 1111
(2003) (error is harmless where there is “little likelihood
that the particular error affected the verdict”).
In considering whether the error is harmless, we
assess the nature of the error, including any differences
between the “quality of the evidentiary error and other evidence admitted on the same issue,” as well as the context
of the error. State v. Partain, 297 Or App 799, 804-05,
444
P3d 1136, rev den,
365 Or 533 (2019); see also Davis,
336 Or
at 33-34 (focusing on whether the finder of fact would have
regarded the evidence as duplicative, cumulative, or unhelpful in its deliberations).
We disagree that the error is harmless. As defendant notes, the excluded evidence was relevant to L’s credibility, and her credibility, in turn, was an important issue
at trial. To be sure, as the state points out, the trial court
permitted defendant to use the one statement played for
the jury, as well as L’s testimony about her untruthfulness
before the grand jury, to attack L’s credibility. However, in
light of the trial court’s ruling, defendant could not argue
that what L said at grand jury was true. That is, defendant
could not argue that L’s grand jury testimony established as
a matter of fact that by her own admission, L did not suffer
pain, had kicked defendant, and had a spotty memory. That
argument would have been distinct from the argument that
L lied.
Further, as to the latter two issues in particular—
whether L kicked defendant and has a spotty memory—no
comparable evidence was available to defendant. See State
v. Simon, 294 Or App 840, 849,
433 P3d 385 (2018), rev den,
365 Or 502 (2019) (considering other admissible evidence
on the same issue as the erroneously excluded evidence).
Although L testified repeatedly that she had lied at grand
jury, as to the three specific parts of the grand jury testimony that defendant identified, the jury heard only her testimony about suffering pain as a result of the assault. As
to her grand jury testimony that she kicked defendant, the
jury did not hear it, and at trial she simply testified that she
Nonprecedential Memo Op:
332 Or App 282 (2024) 285
“can’t exactly recall why—or what happened with the leg
thing.” Defendant’s ability to offer substantive evidence that
the parties engaged in a mutual physical fight of some sort
could have been significant to the jury’s deliberations, and
no other admissible evidence came in on that issue. And at
no point in her trial testimony did L acknowledge that she
testified at grand jury that she has a “spotty memory”; to
the contrary, by testifying that she remembered what happened, L implied that her memory was correct and complete.
If defendant had been permitted to offer evidence that L in
fact has a “spotty” memory, a jury could infer that her trial
testimony was incorrect.
Because defendant was prevented from offering the
grand jury testimony as substantive evidence on those two
points, one of which directly related to the incident and the
other to L’s credibility, we cannot conclude that the error is
harmless.
In Case No. 22CR07736, conviction for fourth-degree
assault reversed and remanded; otherwise affirmed. In
Case No. 21CR39975, Case No. 20CN01644, and Case No.
21CR13926, affirmed.
