Defendant appeals a judgment of conviction for murder constituting domestic violence. See ORS 163.115 (2015).
1
We write to address two assignments of error—that the trial court erred in not admitting defendants brothers out-of-court colloquy with the police and in denying defendants motion for a judgment of acquittal. We uphold without discussion the other rulings that defendant challenges on appeal and affirm the trial courts judgment.
Defendant grew marijuana in Jackson County. He lived in a doublewide trailer at the top of a hill on a sparsely traveled lane. His brother Shane lived off and on in a trailer a short distance below defendants doublewide trailer. Although a defense witness explained that Shane usually stayed in the lower trailer, she added that Shane was “kind of transient, homeless, or stayed at the river or something.”
The victim was a young woman who had left college to work in defendants marijuana-grow operation. She stayed some of the time in the lower trailer where Shane lived and also in defendants doublewide trailer. One evening, defendant and the victim stopped by a neighbors house to socialize. Defendant began drinking bourbon and became increasingly intoxicated and belligerent towards the victim. Among other things, he accused the victim of costing him approximately $165,000, apparently because of a mistake she had made processing marijuana. Additionally, the victim told the neighbor that defendant had headbutted her earlier that day, although she denied that he had hurt her.
The neighbor offered to call the police because she was concerned for the victims safety, but the victim declined. At approximately 10:00 p.m., the neighbor asked defendant to leave because of the way he was talking to the victim. The neighbor saw the victim stumble as she and defendant walked to his car. The neighbor watched as defendants car drove to the lower trailer, stopped briefly, and then continued uphill to defendants doublewide.
At 2:00 a.m. the next morning, defendants brother Shane woke up another neighbor and asked if he could use the neighbors phone to call 9-1-1. Shane explained that defendant had come to his house, woken him up, and told him that the victim had died from an overdose. Using the neighbors phone, Shane told the 9-1-1 operator essentially the same information and added that defendant had taken a whole “scrip” of pills. Shane told the operator that the victim and defendant were at defendants house at the top of the hill, that he did not know if the victim was breathing, and that it could be a suicide attempt. Shane waited outside the neighbors house for the emergency medical personnel to arrive so that he could accompany them and the police to defendants house.
When the emergency personnel got to the house, they found the victim dead, propped up against a table in the bedroom. There was blood all over the bedroom and bathroom. The emergency personnel found defendant passed out on a mattress in the bedroom, next to the victims body. The emergency personnel were able to revive defendant, and the police placed him under arrest. Later, defendant made numerous statements that were introduced at trial.
Shanes colloquy with the police. After the police discovered the victims body and placed defendant under arrest, they advised Shane of his Miranda rights and spoke with him briefly. (The interview ended when Shane began having seizures caused by alcohol withdrawal.) Shanes colloquy with the officers divides into four parts. First, the officers asked Shane about an older cut on his arm and a fresh mark near his eye, which Shane explained resulted from “some guy” hitting him. Second, the officers sought to deter-mine where Shane was sleeping when defendant woke him up to tell him that the victim was dead. Third, Shane told the officers that, after defendant woke him up, he followed defendant up the hill to defendants house, where he saw the victim, who did not appear to be breathing, and then saw defendant take a “scrip” of pills. Shane explained that he ran down the hill to find a phone so that he could call 9-1-1. Fourth, Shane recounted defendants version of the events that occurred the night of the victims death. Specifically, Shane said that defendant told him that the victim had left the neighbors house before defendant, that defendant arrived home later and found the victim stumbling around and bleeding profusely from her mouth and nose, and that defendant tried to revive the victim before fearing that his efforts were unsuccessful. After that, he went to get Shane.
At the time of trial, Shane could not be found, and the parties stipulated that he was unavailable. When defendant sought to introduce Shanes colloquy with the police, the state objected that it was hearsay. Defendant responded initially that Shanes unavailability was sufficient, without more, to make his hearsay statements admissible. The state pointed out, and the trial court agreed, that unavailability alone is not a sufficient basis for admitting hearsay. Defendant then argued that Shanes statements were admissible under three exceptions to the hearsay rule—state of mind, excited utterance, and statements against penal interest. Defendant also suggested that, even if the rule against hearsay barred admitting the colloquy, due process required its admission. The trial court disagreed and sustained the states objection.
On appeal, defendant does not argue, as he did below, that Shanes colloquy with the officers was admissible under an exception to the hearsay rule. Rather, he argues that the colloquy was not hearsay because all or part of the colloquy was not offered for the truth of the matter asserted. Defendants appellate argument faces two related but separate preservation problems. First, the question whether a statement is hearsay will vary depending on the purpose for which it is offered. See OEC 801(3) (defining hearsay). Defense counsel, however, never told the trial court that she was offering Shanes statements for any purpose other than for the truth of the matter asserted. Indeed, all her arguments at trial rested on the premise that she was offering the statements for the truth of the matter asserted, and she contended only that the statements were admissible either as an exception to the rule against hearsay or because due process required their admission.
2
Defense counsel failed to preserve the ground for admission that defendant now raises on appeal. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) (preservation requires a clear, specific objection).
Defendants argument faces a second problem. The Supreme Court has long recognized that, when a party unsuccessfully offers evidence as a whole, without segregating admissible from inadmissible parts of the offer, the trial courts ruling sustaining an objection will be affirmed on appeal if part of the offer is inadmissible. See State v. Brown, 310 Or. 347, 358-59, 800 P.2d 259 (1990) (stating rule); Biegler v. Kirby, 281 Or. 423, 426, 574 P.2d 1127 (1978) (upholding trial courts ruling because the trial court was not required to sort out admissible from inadmissible evidence). In this case, most of Shanes colloquy appears to have been offered for the truth of the matter asserted. For example, Shane recounted defendants exculpatory version of how the victim died (she arrived at defendants house first, she was bleeding profusely when defendant came home, and defendant attempted unsuccessfully to care for her injuries). Similarly, Shane explained how he had run to the neighbors house to find a phone to call 9-1-1, and he answered the officers’ questions about the injuries they observed on his arm and face.
For all that appears from the record, defendant offered those statements for the truth of the matter asserted—to exculpate himself, to explain the events that led to the emergency personnel entering his home, and to support a conclusion that Shane had injuries to his face that could have been inflicted by the victim. Even if Shanes statements regarding where he was sleeping were admissible for a nonhearsay purpose and even if the trial court should have realized that defendant was offering part of the colloquy for that purpose, defendant cannot object to the trial courts ruling when he failed to separate the admissible part of the colloquy from the inadmissible part. Brown, 310 Or. at 359, 800 P.2d 259.
3
Defendant suggests alternatively that due process required that Shanes colloquy with the police be admitted. The cases that defendant cites, however, apply when a state evidentiary rule arbitrarily bars admission of trustworthy evidence critical to a persons defense. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Cazares-Mendez/Reyes-Sanchez, 350 Or. 491, 256 P.3d 104 (2011). Defendant cites no case for the proposition that Chambers applies when the excluded evidence would have been admissible if offered for the right reason. In that situation, post-conviction would seem to provide all the process that is due. Beyond that, Shanes brief colloquy with the officers can hardly be described as critical defense evidence. Most of what Shane told the officers repeated either what Shane said during his 9-1-1 call or statements that defendant made after his arrest, all of which were admitted at trial.
One part of the colloquy that is not duplicated else-where in the record consists of Shanes statements regarding where he was sleeping when defendant woke him. Defendant argues that Shanes responses to that series of questions were evasive and gave rise to an inference of guilt. Specifically, Shane told the officers that he was sleeping in a trailer “just down the hill from [his brothers] house,” that the trailer was not on his brothers property, that the trailer was located “at a neighbors house,” and that the victim had stayed there “when she first got here.” Although Shanes statements are not without ambiguity, he appears to have told the officers that there were three trailers—the doublewide where his brother lived, a trailer below that on his brothers property, and a third trailer on someone elses property where the victim initially had lived. That reading of Shanes statements is consistent with the testimony of a defense witness, who told the court that there were three trailers and that the victim initially had stayed at the third trailer on a neighbors property below the other two.
Given that testimony, the trial court reasonably could have inferred that Shanes answers, although imprecise, permitted at most a weak inference that he was being evasive. That is particularly true since any ambiguity in Shanes answers about where he was sleeping could have arisen from (1) the fact that Shane was essentially a transient, as defendants witness had testified, (2) inartful questioning by the officers, who did not appreciate Shanes fluid living situation, and (3) Shanes medical condition when he spoke with the officers.
4
To the extent that any evasiveness on Shanes part permitted a weak inference of guilt, that inference is a far cry from the clear evidence of guilt, such as a third partys confession to murder, that gave rise to the due process holdings in Chambers and Cazares-Mendez.
Motion for a judgment of acquittal. Defendant does not dispute on appeal that the trier of fact reasonably could find that whoever killed the victim did so with the requisite mental state. As we understand his argument, he contends that the only conclusion that a reasonable trier of fact could draw was that the evidence was in equipoise as to whether he or Shane had beaten the victim to death. It follows, he concludes, that no reasonable trier of fact could find beyond a reasonable doubt that he was the person who killed the victim.
On that issue, the evidence permitted the trial court, sitting as the trier of fact, to find that, shortly before the victim died, defendant had been angry with her for supposedly ruining $165,000 worth of marijuana, that he had headbutted her earlier that day, that he had become increasingly intoxicated and belligerent towards her at a neighbors house, and that the neighbor had been sufficiently concerned for the victims safety that she offered to call the police on the victims behalf. Moreover, the court could find that, when the police entered defendants house, they found defendant passed out next to the victim, who had been beaten to death.
As noted, after the police placed defendant under arrest, he made numerous statements. Among other things, he said that he and the victim had been at the neighbors house, that they had gone home, that she had overdosed on cocaine, that she had “faceplanted” on the stairs, that she was bleeding profusely from her mouth and nose, that he tried to staunch the bleeding from her chin with duct tape, that he had dragged her into the bathtub to reverse the effects of her drug overdose and accidentally caused her head to hit the side of the tub, and that he had tried to revive her for two-and-a-half hours. He said that, when those efforts proved unsuccessful, he could not find his cell phone and woke up his brother Shane to go for help.
Although defendant argues that the only conclusion that the trial court reasonably could have reached was that it was equally possible that Shane could have beaten the victim at the lower trailer before taking her body up to defendants doublewide trailer and dropping it off, the trial court reasonably could have found otherwise. The trial court reasonably could have inferred from defendants statements, set out above, that only defendant had been with the victim from the time she left the neighbors house unharmed until her death. Moreover, defendant never said that Shane had any connection to the victims injuries, and the trial court reasonably could have found that, unlike defendant, Shane had neither a motive nor an opportunity to harm the victim. Finally, the trial court could have credited the neighbors testimony that, when Shane arrived at his house to call 9-1-1, the neighbor did not notice any blood on Shane that would suggest that Shane was the one who had beaten the victim.
To be sure, at trial, defendant called a different neighbor to testify, who said that, the day after the victims death, he saw Shane cleaning blood off the walls of the victims room in the lower trailer. However, the witness also testified that he had not seen any blood at the upper trailer where the victims body was found, aside from a spot of blood. Given the amount of blood where the victim was found, the trial court was not required to credit the witnesss testimony.
5
Additionally, the trial court was not required to find that the evidence as to who killed the victim was in equipoise, nor did it err in denying defendants motion for a judgment of acquittal.
Affirmed.
FOOTNOTES
1
. ORS 163.115 was amended in 2015 and again in 2019. See Or Laws 2015, ch. 820, § 46; Or Laws 2019, ch. 634, § 28.
2
. Defendant notes that, in arguing that due process required the admission of Shanes hearsay statements, his lawyer told the trial court that Shanes statements about where he was sleeping were evasive and evidenced Shanes guilt. Defendant contends that the trial court should have realized that he wanted to admit those statements for that reason, not for the truth of the matter asserted. Defendant, however, made that argument to support his claim that some of Shanes statements came within a hearsay exception (statements against penal interest) or were so central to his defense that due process required their admission even if the hearsay rule barred them. All defendants trial arguments rested on the premise that Shanes statements were hearsay.
3
. Defendant argues on appeal that every part of Shanes colloquy could have been admitted for some purpose other than the truth of the matter asserted. Even if that is so, those purposes, if they exist at all, are far from apparent. Defendant cannot fault the trial court for taking the premise of his trial argument at face value—that Shanes statements were being offered for the truth of the matter asserted. For similar reasons, we are not persuaded by defendants argument that any error in sustaining the states objection constitutes plain error.
4
. Before the trial court ruled on defendants due process argument, defendant introduced testimony that the medical condition that led to Shanes seizure, which in turn ended his colloquy with the officers, can result in hallucinations and confusion.
5
. The witness made a gratuitous statement during his testimony that the government had “jerry-rig[ged his] phone so I have to talk to them,” which also could have led the court to doubt the accuracy of the witnesss observations.
KISTLER, S. J.