State v. Richards

Where erroneously excluded evidence relates to the central factual issue, rather than a tangential issue, and thereby is more likely to effect the trier of fact’s determination, the evidentiary error is not harmless.

Defendant appealed a judgment of conviction for attempted murder, assault in the second degree, two counts of unlawful use of a weapon, and two counts of menacing. The trial court excluded witness testimony as hearsay. Defendant assigned error to that exclusion, pursuant to OEC 802, the “excited utterance” exception to the hearsay exclusionary rule. The State agreed that the trial court erred by excluding the testimony, however, contends that the error was harmless, and therefore the judgment should be affirmed. On appeal, the Court applied the following standard to each of Defendant’s convictions: where erroneously excluded evidence relates to the central factual issue, rather than a tangential issue, thereby more likely to effect the trier of fact’s determination, the evidentiary error is not harmless. Based on that standard, the Court determined that Count 4 (unlawful use of a weapon) and Count 6 (menacing) were harmless because erroneously excluded statement was not relevant to those issues. However, the Court concluded that Count 1 (attempted murder, Count 2 (assault in the second degree), Count 3 (unlawful use of a weapon), and Count 5 (menacing) were not harmless because the excluded statement was relevant to the central issue (Defendant’s self-defense theory). Reversed and remanded for Counts 1, 2, 3, and 5; remanded for resentencing; otherwise affirmed.