State v. Moala

A photograph illustrating nonverbal behavior intended to constitute an assertion—a "statement," OEC 801(1)(b)—that is intended to prove the truth of the claim in the statement is hearsay.

The State appealed a pretrial order excluding evidence that the trial court found to be inadmissible hearsay. The State argued that the evidence was not hearsay because it was intended for a limited purpose, which was not to prove the truth of the matter asserted. Defendant cross-appealed and assigned error to the trial court’s failure to exclude all the photos that the State intended to offer. Defendant argued that the photos should have been excluded because they depicted nonverbal conduct, which could be interpreted as statements or assertions and thus constitute hearsay. A photograph illustrating nonverbal behavior intended to constitute an assertion—a "statement," OEC 801(1)(b)—that is intended to prove the truth of the claim in the statement is hearsay. The Court concluded that the trial court erred in excluding the photos as inadmissible hearsay given the facts at the time of the pretrial hearing because the State explained that it intended to use the photo for a limited purpose. The Court reasoned that if the State attempted to expand on its use of the photos at trial, the trial court could exclude the evidence at that time or offer limited instructions. Reversed on appeal; affirmed on cross-appeal.