State v. Wilcox

When a party unsuccessfully offers evidence as a whole, without segregating admissible from inadmissible parts of the offer, the trial court’s 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 P2d 259 (1990).

Defendant appealed a judgment of conviction for murder constituting domestic violence. Defendant’s brother called 9-1-1 after defendant had woken him up and told him that the victim had died from an overdose. On appeal, defendant argued that the trial court erred in not admitting defendant’s brother’s out-of-court colloquy with the police. At trial, defendant argued that his brother’s colloquy with the officers was admissible as an exception to the hearsay rule. On appeal, defendant argued that the colloquy was not hearsay because “all or part of the colloquy was not offered for the truth of the matter asserted.” The court disagreed and explained that, based on the record, “defendant offered [his brother’s] 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 [his brother] had injuries to his face that could have been inflicted by the victim.” Because defendant’s counsel “failed to preserve the ground for admission that defendant [raised] on appeal,” and “failed to separate the admissible part of the colloquy from the inadmissible part,” the Court concluded that the trial court did not err in excluding the evidence. Affirmed.