332 August 14, 2024 No. 561
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KALEB JONATHON MOON,
Defendant-Appellant.
Lane County Circuit Court
20CR35733; A177339
Bradley A. Cascagnette, Judge.
Argued and submitted June 20, 2023.
James Brewer, 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.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Reversed and remanded.
Cite as 334 Or App 332 (2024) 333
POWERS, J.
In this criminal case, defendant appeals from a
judgment of conviction after a jury found him guilty of driving under the influence of intoxicants, reckless driving, and
recklessly endangering another person. In two assignments
of error, defendant argues that the trial court erred when
it excluded hearsay statements made by Bishop, in which
Bishop told a deputy that he had been the driver of the car
that drove up onto a curb and hit a parked car. Specifically,
defendant contends that the statements were admissible
under the hearsay exception for statements against interest, OEC 804(3)(c), and alternatively that, if the statements
were inadmissible, their exclusion violated his rights under
the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. We conclude that the statements were against Bishop’s penal interest and that there
was sufficient corroboration for the statements to be admitted under OEC 804(3)(c). Moreover, excluding the statements
was not harmless. Because we conclude that the statements
were admissible, we do not consider defendant’s constitutional arguments. Accordingly, we reverse and remand.
I. BACKGROUND
We begin by describing background information to
give context for defendant’s challenge to the excluded hearsay statements. In the early morning in June 2020, a person
driving a Toyota, with two passengers, drove up onto a curb
and hit a parked car, causing damage. A witness called 9-1-1
to report the incident and noted that the tallest of the three
people was the driver of the Toyota.1 It is undisputed that
Bishop was the tallest of the three people who were in the
Toyota.
Deputy Dodds responded to the call and stopped
two people that matched the description given by the 9-1-1
caller, defendant and Natali, who both denied knowledge
of the crash. While Dodds was questioning defendant and
Natali, he heard “yelling and screaming,” and a third person,
Bishop, came up to them and said that a woman was being
1
That statement was admitted at trial only for its effect on the investigation,
not for its truth.
334 State v. Moon
assaulted. Dodds decided to investigate the assault and told
defendant, Natali, and Bishop that they were free to leave.
Defendant and Natali then got into a taxi. After Dodds
determined that there had been no assault and learned that
defendant was the registered owner of the Toyota, another
deputy stopped the taxi that defendant and Natali were in.
Dodds investigated defendant’s involvement in the
car crash and learned that defendant, Bishop, and Natali
lived together. Eventually, defendant admitted to Dodds
that he had been the driver of the Toyota and that Bishop
and Natali were passengers. Defendant explained that he
had been drinking prior to driving and that he crashed the
car when he used the emergency brake to drift—or slide the
car—as he turned a corner. Defendant was subsequently
arrested and charged with felony driving under the influence of intoxicants, failure to perform the duties of a driver
when property is damaged, reckless driving, and recklessly
endangering another person.
About three weeks after defendant’s arrest, and one
week before arraignment, Bishop called the district attorney’s
office to report that he, not defendant, had been the driver of
the Toyota. Dodds then arranged to meet with Bishop in person the following day to discuss the call. The statements that
Bishop made to Dodds during that meeting are the subject of
this appeal. Thus, we turn to the details of that interaction.
At trial, defendant sought to introduce evidence
regarding Dodds’s meeting with Bishop. Defendant first
called Bishop to testify, and Bishop asserted his right
against self-incrimination and was thus unavailable to
testify.2 Defendant then called Dodds to testify about his
conversation with Bishop. Dodds testified that he went to
Bishop’s house, where he found Bishop sitting in his driveway “drinking a fifth of Jack Daniels.” Dodds testified that
Bishop was intoxicated and “slurring” his words but that
Bishop was coherent and able to “convers[e] normally.”
Defense counsel asked Dodds about the statements that
Bishop made to Dodds about the night of the accident, and
the state objected on hearsay grounds. Defendant argued
2
At the time of the trial, Bishop had pending charges against him arising
from his act of telling Dodds about the alleged assault the night of the incident.
Cite as 334 Or App 332 (2024) 335
that the hearsay statements were admissible under OEC
804(3)(c), which is set out below.3
To rule on the objection, the court allowed defendant to make an offer of proof. Defense counsel proceeded
to question Dodds outside the presence of the jury, and
Dodds testified that, before beginning the conversation, he
read Bishop his Miranda rights and that Bishop appeared
to understand them. Bishop then told Dodds that he, defendant, and Natali “had been out drinking” before the crash
and that he had driven the car because defendant was too
intoxicated to drive. Bishop explained that he had trouble
driving a stick shift and that “they went up on a curb on
accident” because “the vehicle got stuck in gear.” Bishop told
Dodds that he did not come forward earlier about being the
driver because he “thought [defendant] was being released
so he didn’t feel like he needed to say anything.”
Ultimately, the trial court excluded Dodds’s proposed testimony regarding Bishop’s statements. The court
determined that, although the statements were against
Bishop’s penal interest, they were not admissible under OEC
804(3)(c) because there were insufficient corroborating circumstances. The jury then returned to the courtroom, and
the trial proceeded. Dodds testified that he called defendant
after talking with Bishop and asked if defendant wanted
“to change anything about his story.” Defendant told Dodds
that he was aware that Bishop had claimed to be the driver,
and defendant explained that he “wasn’t very appreciative
of the fact that Bishop had called to take credit for him driving because he felt that it made him look bad.” Defendant
reiterated that he was the driver of the Toyota and that it
was “important that he take responsibility.” Ultimately, the
jury found defendant guilty as described above, and defendant timely appealed.
On appeal, defendant renews his argument that the
statements that Bishop made to Dodds admitting to being
the driver were sufficiently corroborated and should have
been admitted under the OEC 804(3)(c) hearsay exception
3
OEC 804 has been amended since defendant’s trial. Or Laws 2023, ch 141,
§ 1. Those amendments, however, do not affect our analysis, and therefore we
refer to the current version of the statute in this opinion.
336 State v. Moon
and asserts that excluding them was not harmless error.
In the alternative, defendant argues that, if we determine
that the statements are inadmissible under OEC 804(3)(c), it
would violate his rights under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution
to prohibit the admission of Bishop’s statements of thirdparty guilt. The state remonstrates that the evidence does
not sufficiently corroborate Bishop’s statements. Moreover,
the state offers an alternative basis for affirmance—that
the statements were not against Bishop’s penal interest and
thus do not satisfy the “against interest” prong of the OEC
804(3)(c) hearsay exception.4
II. ANALYSIS
We review a trial court’s “preliminary factual
determinations” to determine if “any evidence in the record
supports them.” State v. Cook, 340 Or 530, 537,
135 P3d 260
(2006). We review a trial court’s legal conclusion regarding
whether a hearsay statement is admissible under a hearsay
exception for errors of law.
Id.
OEC 804 provides, in part:
“(3) The following are not excluded by [OEC 802 or the
hearsay rule] if the declarant is unavailable as a witness:
“…
“(c) A statement which was at the time of its making
so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless
the person believed it to be true. A statement tending to
expose the declarant to criminal liability and offered to
4
In advancing its alternative argument, the state cites to Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659,
20 P3d 180 (2001) (describing
the “right for the wrong reason” doctrine). As we have explained before, however,
Outdoor Media applies to issues raised for the first time on appeal, not to issues—
like the one presented here—that were raised before the trial court and rejected.
See Sherertz v. Brownstein Rask,
314 Or App 331, 341-42,
498 P3d 850 (2021)
(explaining that, when an issue is raised for the first time on appeal, the doctrine
in Outdoor Media may be used if specified criteria are met; whereas, when an
argument was made before the trial court and is made again on appeal, Outdoor
Media does not apply and we will normally resolve the issue, unless a remand is
necessary for factual findings, exercise of discretion, or the like).
Cite as
334 Or App 332 (2024) 337
exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of
the statement.”
It is undisputed that Bishop was unavailable to testify.
Thus, the two issues in this case are (1) whether the statements were against Bishop’s interest and (2) whether there
was sufficient corroboration.
A. Statements Against Interest
We conclude that Bishop’s statements were against
his penal interest for purposes of OEC 804(3)(c). In determining whether statements are against a declarant’s interest, we consider the statements as a whole rather than
examine each individual statement or sentence separately.
Cook, 340 Or at 538. For a statement to be against a declarant’s penal interest, the statement need not be a confession
to a crime, but it must “ ‘tend’ to subject [the declarant] to
criminal liability.” State v. Schutte,
146 Or App 97, 102,
932
P2d 77 (1997). Moreover, there must be evidence—or an
inference that could be drawn from the evidence—that the
declarant realized, at the time of making the statements,
that the statements were against the declarant’s interest.
State v. Kaino-Smith,
277 Or App 516, 525,
371 P3d 1256
(2016).
Here, Bishop’s statements were made after Dodds
read Bishop his Miranda rights, and thus Bishop should
have been aware that his statements could be used against
him in a criminal prosecution. Moreover, Bishop told Dodds
that he, defendant, and Natali had been out drinking that
night and admitted to driving the car up onto the curb and
hitting another car. Additionally, Bishop contacted the district attorney’s office and spoke to Dodds after defendant
had been arrested and cited for crimes relating to the accident, which would have alerted Bishop that his statements
could be used as the basis for criminal charges against him.
In arguing for a different conclusion, the state contends that Bishop’s statements were not against his interest
because, in its view, Bishop never admitted to any wrongdoing and his story suggests an intent to protect his interests
and simultaneously exculpate defendant. Specifically, the
338 State v. Moon
state argues that Bishop’s statement that defendant was too
intoxicated to drive implies that Bishop was not intoxicated
and that Bishop drove up onto the curb because of an understandable issue driving a stick shift, which is not criminal conduct. However, Bishop did admit that he had been
out drinking that night and admitted to being the driver
of a car that was in a crash that caused property damage.
Therefore, despite any alternative motivation that Bishop
could have had in making those statements, we conclude
that the statements tended to subject Bishop to criminal
liability. Accordingly, we reject the state’s contention that
Bishop’s statements did not satisfy the “against interest”
prong of the OEC 804(3)(c) hearsay exception.
B. Sufficient Corroboration
Second, we conclude that the statements were sufficiently corroborated. To determine whether there are sufficient corroborating circumstances that “clearly indicate
the trustworthiness of the statement” for purposes of OEC
804(3)(c), we consider the entire context of the statements.
See, e.g., State v. Cazares-Mendez/Reyes-Sanchez, 350 Or
491, 514-15,
256 P3d 104 (2011) (considering the context of
the statements, including their spontaneity, repetition, additional corroborating details, the time the statements were
made, and whether the declarant had a motive to fabricate).
There is no “magic formula” for determining corroboration,
and each case must be analyzed based on its own individual
circumstances. State v. Edwards-Peecher,
218 Or App 311,
318,
179 P3d 746 (2008). Here, the statements are corroborated by evidence that the 9-1-1 caller reported that the tallest of the three men was the driver, and there is undisputed
evidence that Bishop was the tallest of the three occupants
of the car.5 Moreover, it is undisputed that Bishop was in the
car at the time of the accident, and thus he was one of three
people who could have been the driver. The circumstances
surrounding the statements further indicate their trustworthiness. First, Bishop admitted on at least two occasions
that he was the driver—to the district attorney’s office and
5
Even though the evidence of the 9-1-1 caller’s statement was not admitted for its truth, in determining preliminary questions as to the admissibility of
evidence, courts are not bound by the rules of evidence except for privileges. See
OEC 104(1).
Cite as 334 Or App 332 (2024) 339
to Dodds. See Cazares-Mendez/Reyes-Sanchez,
350 Or at 514
(explaining that the declarant “confess[ing] on four separate occasions to four different witnesses” is a corroborating
circumstance). Second, Bishop’s statements included other
details of the accident, such as the location of the car on the
curb. See
id. at 515 (explaining that the declarant’s statements were more reliable because they “included additional,
corroborating details about the crime”).
To be sure, there are some circumstances that
weigh against trustworthiness. First, Bishop and defendant were friends and roommates, and Bishop’s statements
were not spontaneous. Thus, Bishop could have fabricated a
story to help his friend. See Edwards-Peecher, 218 Or App at
318-19 (concluding that the relationship between the declarant and the defendant—the declarant was the defendant’s
juvenile son dependent on her for his support—and that
the declarant did not make the statements until after the
defendant was charged were circumstances that weighed
against trustworthiness because they gave rise to a reasonable inference that the son belatedly fabricated the statement to assist his mother’s defense). Second, Bishop was
drinking while speaking to Dodds, which could have made
his statements less trustworthy. However, Dodds testified
that Bishop was coherent and could converse normally. On
balance and given the entire context of Bishop’s statements,
we conclude that the statements were sufficiently corroborated and trustworthy such that they should have been
considered by the jury. See Cazares-Mendez/Reyes-Sanchez,
350 Or at 506-07 (explaining that the corroboration requirement serves primarily to determine whether the statements
are “trustworthy” enough to be considered by the jury; the
jury ultimately decides the credibility of the witness and
whether to believe the statements). Because we conclude that
Bishop’s statements were admissible under OEC 804(3)(c),
we need not consider defendant’s due process arguments.
C. Harmlessness
Finally, we conclude that the error was not harmless. Under Article VII (Amended), section 3, of the Oregon
Constitution, we will affirm a judgment, even if the court
erred in excluding evidence, if the error has little likelihood
340 State v. Moon
of affecting the verdict. State v. Davis, 336 Or 19, 32-33,
77
P3d 1111 (2003). Although evidence that is cumulative or
duplicative can be considered harmless, if the evidence is
qualitatively different from what the jury heard, it may be
harmful. State v. Pusztai,
309 Or App 95, 104,
481 P3d 946,
rev den,
368 Or 348 (2021). The state contends that, because
the jury heard testimony that Bishop told the district attorney’s office that he was the driver, and because defendant
repeatedly stated that he was the driver even after learning of Bishop’s conversation with Dodds, excluding Bishop’s
statements to Dodds was harmless. We disagree with the
state’s argument because the statements were qualitatively
different.
Bishop’s statement to the district attorney’s office
included an admission that he was the driver. The statements to Dodds, however, consisted of that same admission
and also included a more complete statement about the incident, including why Bishop was driving and how the car
ended up on the curb. In our view, although Bishop repeated
the statement that he was the driver, those additional
details make the statements to Dodds qualitatively different from what the jury already heard such that we cannot
conclude that error in excluding those statements had little
likelihood of affecting the verdict. In short, we conclude that
the omission of Bishop’s statements to Dodds, which went to
a central factual issue, was not harmless.
Reversed and remanded.
