State v. Cook
State v. Cook
Opinion of the Court
Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890; unlawful possession of methamphetamine, ORS 475.894; interfering with a peace officer, ORS 162.247; and tampering with physical evidence, ORS 162.295. Defendant makes three assignments of error on appeal. First, he disputes the admission of hearsay evidence. Second, he contends that the hearsay evidence violates his confrontation rights under the Sixth Amendment of the United States Constitution. Third, he challenges the trial court’s purported merger, “for sentencing purposes,” of convictions for unlawful delivery of methamphetamine and unlawful possession of methamphetamine. See State v. Mason, 241 Or App 714, 718 n 4, 250 P3d 976 (2011) (observing that “the phrase ‘merged for sentencing purposes’ is a misnomer and should never be used because it improperly conflates two distinct parts of the criminal process”). The state concedes that the trial court erred in admitting the hearsay evidence but argues that the error was harmless. We conclude that the error was not harmless, and we reverse and remand on defendant’s first assignment of error. We need not address defendant’s second and third assignments.
“[I]n our assessment of whether the erroneous admission of disputed evidence was harmless, we describe and review all pertinent portions of the record, not just those portions most favorable to the state.” State v. Maiden, 222 Or App 9, 11, 191 P3d 803 (2008), rev den, 345 Or 618 (2009). We review to determine “the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
Defendant’s convictions arose from a routine traffic stop. Defendant was driving, and his girlfriend, Buchanan, was in the passenger seat when Deputy Speldrich signaled defendant to pull over. Officer Thomsen arrived to assist Speldrich with the stop. Thomsen discovered that defendant
During the officers’ subsequent search of the car, Thomsen found a digital scale disguised as a cell phone, lithium batteries consistent with the batteries powering the scale, a wad of loose cash on the driver’s side floorboard, some small empty plastic baggies, and a metal mint tin containing “cut,” a substance used to bulk up a drug’s volume before its sale. Defendant denied possessing any controlled substances and told Thomsen that he had only handed Buchanan money while in the car. A bag of methamphetamine, weighing 24.68 grams, was recovered from Buchanan at the jail.
Defendant was charged with unlawful delivery of methamphetamine,
The state tried the case on the theory that the methamphetamine belonged to defendant. During Speldrich’s
On appeal, defendant argues that the trial court erroneously admitted hearsay evidence and that the error likely affected the outcome of the verdict. The state concedes the error but responds that it was harmless. The state argues that Buchanan’s other pretrial statements undercut her credibility so as to make her statement to Speldrich of little persuasive value. The state stresses other evidence, including defendant’s admission that the scale was his.
The Oregon Evidence Code defines hearsay as “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). Unless an exception applies, hearsay is not admissible. OEC 802. A trial court’s erroneous admission of evidence, however, does not always require reversal. See Davis, 336 Or at 32; Or Const, Art VII (Amended), § 3 (if “the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed notwithstanding any error committed during the trial”). Evidentiary error is not presumptively prejudicial. OEC 103(1); State v. Morgan, 251 Or App 99, 108, 284 P3d 496 (2012).
The question here is whether “there [is] little likelihood that the particular error affected the verdict.” Davis,
This court has emphasized that reversal is required where “erroneously admitted statements were both qualitatively different than the evidence that the jury heard, and were presented to the jury as bearing directly on the central issues in the case, viz., defendant’s *** general credibility.” State v. Painter, 255 Or App 513, 523, 300 P3d 179 (2013) (citing Davis, 336 Or at 34) (internal quotation marks omitted)). Erroneously admitted evidence is less likely to be harmless if it pertains to the “heart” of the state’s “factual theory of the case.” Id.
This case reduces to a dispute between defendant’s and Speldrich’s account of events.
Convictions for unlawful delivery of methamphetamine, unlawful possession of methamphetamine, and tampering with physical evidence reversed and remanded; remanded for resentencing; otherwise affirmed.
Because the assigned errors do not pertain to defendant’s conviction for interfering with a peace officer, that conviction is not at issue.
Speldrich saw “crystalline powder” that looked like methamphetamine inside the bag that defendant “handed off’ to Buchanan.
The count for unlawful delivery of methamphetamine was charged as a commercial drug offense, ORS 475.900.
The recorded phone conversations did not resolve that factual dispute by providing unambiguous evidence of guilt.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.