State v. Gonzales

No. 592 November 15, 2023 155

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TIMOTHY EDWARD GONZALES,

Defendant-Appellant.

Polk County Circuit Court

19CR24018; A176611

Norman R. Hill, Judge.

Argued and submitted April 26, 2023.

David L. Sherbo-Huggins, 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.

Peenesh Shah, Assistant Attorney General, argued

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

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

SHORR, P. J.

Reversed and remanded.

156 State v. Gonzales

SHORR, P. J.

Defendant appeals from a judgment of conviction

for one count of first-degree sexual abuse.1 ORS 163.427.

Defendant contends that the trial court erroneously admit-

ted a Child Protective Services (CPS) report under the

OEC 803(6) “business records exception” to the bar against

hearsay evidence. Defendant argues that the CPS report did

not meet all of the required elements under OEC 803(6). The

state concedes that the trial court erred under Arrowood

Indemnity Co. v. Fasching, 369 Or 214, 503 P3d 1233 (2022),

which requires the proponent of the business record to estab-

lish each of the OEC 803(6) required elements. The state

argues, however, that we should affirm because the error

was harmless. For the reasons discussed below, we accept

the state’s concession of error but conclude that the error

was not harmless. Accordingly, we reverse and remand for

further proceedings.

As a preliminary matter, we accept the state’s

concession that the trial court erred in admitting the CPS

report under the business records exception in OEC 803(6).

The state offered into evidence a CPS caseworker’s report

that included a statement from S, the alleged victim, that

S’s mother (hereinafter “mother”) had previously encour-

aged S and her siblings to tell people that they were scared

in their current living situation with their father.2 The

report also noted that S was not, in fact, scared, suggesting

that mother had encouraged the children to lie to obtain

custody of the children during a dispute with father.3 Under

Arrowood Indemnity Co., a party seeking to offer evidence

under the business record exception must prove that the

record it is offering has each of the characteristics listed

in OEC 803(6). 369 Or at 224. OEC 803(6) provides, among

1

Defendant was charged with two counts of first-degree sexual abuse. A jury

found defendant guilty as charged. The trial court merged the verdicts into a

single conviction for first-degree sexual abuse.

2

As we discuss below, the father is not the defendant here. He is not other-

wise involved in this case.

3

As discussed in more detail below, the report was offered at trial to under-

mine mother’s credibility with respect to her denials that any abuse had occurred

and to bolster S’s credibility by offering an explanation for her prior denials of

abuse.

Cite as 329 Or App 155 (2023) 157

other requirements, that the business record must have been

(1) “made at or near the time” of the acts, events, conditions,

opinions, or diagnoses and (2) made “by, or from information

transmitted by, a person with knowledge.”4

The caseworker testified at trial that he recognized

the CPS report in question and remembered interviewing

S. However, the caseworker was not able to verify when he

made the report or even if he submitted the report by the

listed due date. The trial court ultimately admitted the

report over defendant’s objections that the caseworker did

not write the report “close in time” to the events described

therein, concluding that “since the person writing the report

was also the person who observed it, it doesn’t have to be

close in time.” The trial court misstated the law. The fact

that the caseworker had personal knowledge of the inter-

view with S did not obviate the state’s burden to establish

that the caseworker made the report “at or near the time”

of the interview. Arrowood Indemnity Co., 369 Or at 224. (“A

party seeking to utilize the exception must prove that the

record it is proffering has each of those characteristics, and

the party must do so through the testimony of the custodian

or other qualified witness.” (Internal quotation marks omit-

ted.)). We therefore accept the conceded error because there

was insufficient evidence at trial to show that the case-

worker wrote the report “at or near the time” of the events

in question, as required by statute.

Before turning to our consideration of whether the

error was harmless, we address the state’s argument that

defendant’s choice in the trial court to reject a limiting

instruction should preclude our consideration of the harm

4

OEC 803(6) provides:

“A memorandum, report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses, made at or near the time by, or

from information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the regular

practice of that business activity to make the memorandum, report, record,

or data compilation, all as shown by the testimony of the custodian or other

qualified witness, unless the source of information or the method of circum-

stances of preparation indicate lack of trustworthiness. The term ‘business’

as used in this subsection includes business, institution, association, pro-

fession, occupation, and calling of every kind, whether or not conducted for

profit.”

158 State v. Gonzales

that defendant raises on appeal. After overruling defendant’s

objection to the hearsay evidence, the trial court offered to

instruct the jury that the statement in the CPS report should

not be considered for its truth, but only as “circumstantial

evidence of state of mind of the child.” Ultimately, defendant

decided not to accept that proposed limiting instruction. On

appeal, the state contends, without citing any authority, that

because defendant declined to accept that limiting instruc-

tion, defendant should be precluded on appeal from arguing

that the admission of the CPS report was not harmless. We

have rejected a similar argument in the past. See Deerfield

Commodities, Ltd. v. Nerco, Inc., 72 Or App 305, 325 n 15,

696 P2d 1096, rev den, 299 Or 314 (1985) (concluding that

a party’s failure to request a limiting instruction in a civil

trial did not waive that party’s right to appeal the admissi-

bility of the underlying evidence). Here, defendant argued

to the trial court that the CPS report was inadmissible in

its entirety. That defendant did not accept the more limited

relief offered by the trial court—a limiting instruction on a

particular statement within the report—does not preclude

defendant from contending that the trial court erred in the

first instance by admitting the report. It also does not pre-

clude defendant from arguing that the error was not harm-

less when considered by the jury.5 Furthermore, the state

has not identified any case law that would exempt us from

our duty to consider whether the error was harmless. See

State v. Davis, 336 Or 19, 27, 77 P3d 1111 (2003) (“ ‘[H]arm-

less error’ is a shorthand reference to a legal standard * * *

that the Oregon Constitution requires this court to apply

after determining in an appeal or on review that a trial

court has erred.”).

We turn to whether the error was harmless, begin-

ning with the facts and procedural history of the case. When

determining whether the trial court’s erroneous admission

of evidence was harmless, “we describe and review all per-

tinent portions of the record, not just those portions most

favorable to the state.” State v. Cuffy, 322 Or App 642, 644,

521 P3d 516 (2022) (internal quotation marks omitted).

5

In appropriate circumstances, we may factor a party’s decision to reject a

limiting instruction into our harmless error analysis, but in this circumstance,

we decline to do so.

Cite as 329 Or App 155 (2023) 159

S was an 11-year-old girl at the time of trial. S testi-

fied that in 2013, when she was around four years old, defen-

dant, her uncle, would come into her room at night, carry

her to her parents’ bedroom, and touch her “private parts.”

During these encounters with defendant, S stated that she

would pretend to be asleep. On one occasion, S recalled

screaming for mother when defendant placed his genitals

on S’s face. S told a caseworker that mother saw defendant

committing the sexual act, threatened to call the police,

and forbade defendant from returning to the house. Mother,

however, contradicted S, testifying that she never walked in

on a sexual act happening between defendant (her brother)

and S.

In the following years, CPS caseworkers interviewed

S several times in unrelated matters. In 2015, following up

on allegations of neglect, a CPS caseworker asked S whether

she had been sexually abused. S denied any sexual abuse.

In July 2017, following up on more unrelated allegations,

another CPS caseworker asked S whether she had been

sexually abused. S again denied any sexual abuse. Only in

August 2017, during another CPS interview, did S disclose

to CPS that she had been sexually abused by defendant.

In the ensuing investigation, defendant made inconsistent

and plainly untrue statements during police interrogations.

Notably, at the beginning of the investigation, defendant

denied even knowing S, his niece.

Despite challenges to defendant’s credibility, S’s

credibility remained the central issue in the case. Mother

undermined S’s credibility when she contradicted S and

expressly denied ever walking in on defendant performing

sexual acts with S. S’s credibility was also potentially called

into question by S’s delayed or inconsistent reporting of the

sexual abuse. To bolster S’s credibility, and diminish trust

in mother, the state introduced the business record at issue

in this case—the report from the July 2017 CPS interview.

At the time of the July 2017 CPS interview, mother was

engaged in a custody dispute with the father of her chil-

dren, including S. According to the report, S stated to the

caseworker that mother instructed her and her siblings “to

tell people that [they were] scared because Mom [wanted

160 State v. Gonzales

them] to stay with her.” S told the caseworker that she was

not scared in her current living situation.

An error is harmless if there is “little likelihood

that the particular error affected the verdict.” Davis, 336

Or at 32. We have held that when the credibility of a wit-

ness is at issue, and improperly admitted evidence may have

“colored the jury’s consideration” of that issue, “we cannot

conclude that there is little likelihood that the admission

of the improper * * * evidence affected the verdict.” State

v. Ferguson, 247 Or App 747, 755, 271 P3d 150 (2012) (con-

cluding impermissible vouching for sexual abuse victim not

harmless when credibility of victim was in question). This

is especially true when the credibility of the witness is the

central issue in the case. State v. Marrington, 335 Or 555,

566, 73 P3d 911 (2003) (concluding that when “swearing con-

test” was the central issue in sexual abuse case, erroneously

admitted expert testimony related to delayed reporting was

not harmless).

During the trial, defendant argued that S’s incon-

sistent reporting and prior denials of any sexual abuse by

defendant undermined her credibility. Much like the tes-

timony in Ferguson, the statement from the erroneously

admitted CPS report was probative of that issue. It provided

a logical explanation for S’s inconsistency in reporting:

mother may have instructed her to lie to CPS caseworkers

about the abuse. Furthermore, S’s statements from the CPS

report undermined mother’s credibility because those state-

ments suggest that mother may have been willing to lie to

authorities. As in Marrington, the lack of physical evidence

in this case reduced the jury trial to a “swearing contest”

between S and defendant. But here, mother “stood in” for

defendant by testifying to his version of events and reject-

ing S’s version. Therefore, a challenge to mother’s credibil-

ity—such as S’s statements from the CPS report—neces-

sarily weighed on the jury’s consideration of the “swearing

contest” between S and defendant.6 For those reasons, the

6

We acknowledge that both Ferguson (vouching testimony) and Marrington

(expert evidence) involved particularly damaging evidence that had been improp-

erly admitted and was clearly not harmless. However, the same harmless-error

principles apply here when the improperly admitted evidence at issue goes to a

significant credibility issue in the case.

Cite as 329 Or App 155 (2023) 161

statements from the CPS report likely colored the jury’s con-

sideration of S’s credibility—the central issue in this case.

Accordingly, we cannot conclude that there is little likeli-

hood that the erroneously admitted CPS report affected the

verdict.

Reversed and remanded.