State v. Hager

201

Argued and submitted September 2, reversed and remanded October 13, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

DUWAYN DORN HAGER,

Defendant-Appellant.

Lane County Circuit Court

15CR12300; A172736

500 P3d 83

Charles M. Zennaché, Judge.

Marc D. Brown, Deputy Public Defender, argued the

cause for appellant. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Kirsten M. Naito, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

PER CURIAM

Reversed and remanded.

202 State v. Hager

PER CURIAM

Defendant appeals a judgment extending his term

of probation based on findings that he failed to report as

directed. He assigns error to the trial court’s decision, over

defendant’s due process objection, to permit his current pro-

bation officer to testify to written statements made by his

former probation officer in his notes about defendant. The

state responds that any error was harmless and that the

trial court properly allowed the new probation officer to tes-

tify to statements by the former probation officer.

As an initial matter, the state has not disputed

that due process poses the same limitations on the reliance

on out-of-court statements to extend probation that it does

on the use of hearsay to revoke probation. Accordingly, we

assume without deciding that the analysis is the same in

each context.

Turning to the question at hand, we reject the

state’s contention that any error is harmless. Contrary to

the state’s assertions, the hearsay evidence was not cumula-

tive of other evidence and the record indicates that the trial

court likely relied on it to find that defendant violated the

terms of probation and then to extend probation based on

that finding.

As for the merits of the due process question, we see

little difference between this matter and our recent deci-

sion in State v. Brown, 313 Or App 283, 284-86, 496 P3d 701

(2021). Considering the relevant factors, the state made the

evidence central to its case, and defendant asked for con-

frontation. Although defendant’s former probation officer

had retired, the state made no showing that it would be dif-

ficult or expensive to call him as a witness. As for reliability

of the statements, although the court determined that the

former probation officer’s file would be admissible under the

business records hearsay exception (an assessment on which

we do not express an opinion), the documentary records

themselves were not admitted into evidence as the excep-

tion contemplates. OEC 803(6) (allowing for the admission

of “[a] memorandum, report, record, or data compilation,

in any form” otherwise meeting requirements of the rule).

Instead, defendant’s new probation officer simply testified to

Cite as 315 Or App 201 (2021) 203

the contents of those records, so the business records excep-

tion is not a basis for concluding that the hearsay testimony

is reliable. See State v. Monk, 244 Or App 152, 158, 260 P3d

607 (2011) (rejecting state’s argument that testimony based

on police report was reliable where report itself had not been

admitted into evidence). Beyond that, we do not see any other

basis to conclude that the hearsay statements were so reli-

able that the other factors pointing toward defendant hav-

ing a due process confrontation right in this circumstance

are outweighed by that reliability.

For these reasons, we conclude that the trial court

erred in overruling defendant’s due process objection.

Because we also have concluded that the error was not

harmless, we reverse and remand.

Reversed and remanded.