State v. Fetzer

When a party fails to object to testimony at trial, the argument may not be preserved on appeal, even where the party successfully moved to exclude the substantive evidence upon which the testimony is based.

Defendant appealed a conviction for second-degree criminal mischief under ORS 164.354 following an incident where Defendant intentionally ran her car into the victim's car following a parking dispute. Before trial Defendant moved to exclude a body shop estimate of the value of the damage; the court agreed and held the victim could testify as to the value of the property damage but that the report was inadmissible, but that if there was a dispute as to the victim's opinion it may open the door to testimony regarding the contents of the estimate. At trial, Defendant did not object to the State's questions or the victim's opinion testimony regarding the value of the damage, which was based on the information contained in the estimate. On appeal, Defendant argued the victim's testimony was inadmissible under OEC 602 because it was not based on any independent personal knowledge. The State argued Defendant failed to preserve the argument because Defendant did not object to the testimony at trial. The Court held that Defendant failed to preserve the argument because, while the Defendant raised objection to entry into evidence of the estimate itself, the court was never presented with an objection to the evidence Defendant now challenges. Affirmed.