State v. Ambriz-Arguello

When appealing a conviction for evidentiary error, petitioner must show based on the totality of the record that the court’s error affected a substantial right, and the jury’s verdict. State v. Kayfes, 213 Or App 543, 555, 162 P3d 308, rev den, 343 Or 690 (2007).

Defendant appealed his judgment for conviction of three counts of first-degree rape (ORS 163.375), one count of first-degree sodomy (ORS 163.405), one count of second-degree sodomy (ORS 163.395), and four counts of first-degree sexual abuse (ORS 163.427). Defendant assigned error to the admission of out-of-court statements, made by a Spanish to English interpreter interpreting defendant’s statements, into evidence. Defendant argued that admitting audio-video tapes and transcripts of the interpreter was inadmissible hearsay, but concedes that his Spanish statements are not hearsay.  The state argued that the statements by the translator should be admitted because the translator was acting as an agent of the Defendant under OEC 801(4)(b)(C) and (D). The Court found that “out-of-court translations of non-English speaker’s statements to a third party constitutes hearsay because the interpreter’s translation constitutes an assertion of the English meaning of the original translation.” When appealing a conviction for evidentiary error, petitioner must show based on the totality of the record that the court’s error affected a substantial right, and the jury’s verdict. State v. Kayfes, 213 Or App 543, 555, 162 P3d 308, rev den, 343 Or 690 (2007). The Court held that the admission of the statements and audio-video of the interpreter were not harmless to Defendant because it was essential to the Defendant’s case and affected the verdict. Reversed and remanded.