Filed: August 23, 2001

STATE OF OREGON,

Respondent on Review,

v.

GROVER CLEVELAND CLEGG, JR.,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted November 3, 2000.

Susan Elizabeth Reese, Portland, argued the cause and filed the brief for petitioner on review.

John C. Bradley, Deputy District Attorney, Portland, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, and Leeson, Justices.**

GILLETTE, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

* Appeal from Multnomah County Circuit Court, William C. Snouffer, Judge. 161 Or App 201, 984 P2d 332 (1999).

** Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; Riggs and De Muniz, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

The issue in this criminal case is the admissibility at trial of certain testimony offered under various exceptions to the hearsay rule. The trial court admitted the testimony at issue and defendant was convicted of aggravated murder and other crimes. In a divided en banc opinion, the Court of Appeals affirmed defendant's convictions. State v. Clegg, 161 Or App 201, 984 P2d 332 (1999). For the reasons that follow, we hold that the testimony was admissible. We affirm the decision of the Court of Appeals, albeit on different grounds.

Because the jury convicted defendant on all counts, we view the evidence in the light most favorable to the state. State v. Hayward, 327 Or 393, 399, 963 P2d 667 (1998). On July 30, 1993, defendant's wife, Christina (Tina) Clegg, was shot and killed by two gunmen wearing ski masks who burst into the Albina Head Start office where Tina worked as a receptionist. One of the men walked directly toward Tina and shot her several times; the last three shots were in a straight line down her back, in a manner that indicated that the shooter had stood over her and shot downward. After shooting, the men asked for money, but left without taking anything of value. One of Tina's coworkers also was shot in the chest in the incident. One of the intruders carried a silver gun, but police never found the murder weapon. At least in part because of the manner in which Tina was murdered, police soon began to suspect that the motive for the attack was not robbery, as first thought, but Tina's murder.

Ultimately, defendant was indicted and charged with aggravated murder, conspiracy to commit aggravated murder, felony murder, intentional murder, assault, burglary, and two counts of solicitation to commit aggravated murder. The charges were based on allegations that defendant arranged for the murder of his wife. At trial, the state's theory of the case was that defendant had orchestrated the foregoing events because he was unhappy in his marriage to Tina, but did not want to risk either losing his home or paying child support as a result of divorce, and because he wished to collect the proceeds of a $100,000 insurance policy on Tina's life. According to the state, defendant asked his brother, Randall Clegg, to find someone to kill his wife.

The state presented evidence that Randall had made more than one effort to find a killer. Randall first hired a man named Deskins to murder Tina for about $1,000. Deskins borrowed a gun from a friend, and Randall loaned Deskins a car and provided him with a photo album containing pictures of Tina. Deskins did not carry out his assignment, however. On one occasion, Deskins failed to carry out the plan because Tina unexpectedly went to church. The next day, Randall again loaned Deskins his car, telling him to return it after he had committed the murder. However, Deskins instead picked up a few friends, began drinking, and ultimately drove Randall's car into a pole. The police officer who dealt with the collision found assorted unfired bullets in the car and, in the trunk, a box of shotgun shells, a long-sleeved black T-shirt, and a black ski mask.

About two weeks later, Randall hired two other individuals, Steward and Matthews, to kill Tina. The two also were to be paid $1,000 for the job. Tina's teenage daughter testified that, on the night before the murder, she saw defendant with Randall and Matthews in the basement of defendant's house; the Cleggs were showing Matthews a small silver gun. After the murder, Steward told friends that he had stolen the car that was used in the murder and that Matthews was the shooter. Two of Tina's fellow employees confirmed that Steward was one of the two intruders on the day of the murder, but was not the one who shot Tina.

Although there was direct evidence linking Randall, Steward, and Matthews to Tina's murder, (1) the state's case against defendant was circumstantial. The state presented evidence that, in the year before the murder, defendant often had talked to coworkers about his marital unhappiness and frequently stated that he would have his wife killed rather than pay child support. In addition, defendant told coworkers that, if his wife were to die, he would receive $100,000 in life insurance benefits, his mortgage would be paid off, and he would be able to keep his children. Defendant's insurance agent testified about defendant's efforts, within hours of Tina's murder, to inquire about the extent of the coverage. Finally, various witnesses, including the investigating police officers and defendant's friends and coworkers, testified about defendant's relative lack of grief over Tina's death and his lack of interest in apprehending the killers.

The piece of evidence tending most directly to connect defendant with the crime was testimony concerning a telephone conversation between defendant and Tina only moments before the murder. From that conversation, a juror could infer that defendant was attempting to ensure that Tina would be present in the office at the time that her killers arrived. The testimony came from of one Tina's coworkers, Hughes.

Hughes testified that, about two to five minutes before the murder, she walked up to Tina's window just as Tina was hanging up the telephone after a conversation with defendant. (2) Hughes observed that Tina looked happy; Hughes asked Tina what accounted for her good mood. Hughes stated that Tina "told me that her husband loved her." Hughes then testified as follows:

"And I said, 'Oh and what brought that on?' And she said, 'I just talked to Grover and told him Gladys was going to take me to the bank and he said, "No, no, no," and insisted I not let Gladys take me, that he was going to take me when he took me to lunch.'"

In response to the prosecutor's announcement of intent to use the foregoing part of 'Hughes's testimony at trial, defendant objected on the ground that the statement was hearsay not within any exception to the hearsay rule. In the alternative, and to the extent that Hughes's testimony was admissible, defendant objected to it on the ground that its prejudicial effect outweighed its probative value.

The state argued, among other things, that Hughes's testimony was admissible under OEC 803(3), which provides:

"The following are not excluded by [OEC 802, the general rule against hearsay], even though the declarant is available as a witness:

"* * * * *

"(3) A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant's will."

In particular, the state asserted that Tina's statement to Hughes was admissible because it concerned whether Tina intended to go to the bank with Gladys or to wait to do so until she went to lunch with her husband. Moreover, the state argued, Tina's statement to Hughes was admissible because it concerned the state of her marriage, which was relevant because the defense had contended that the Cleggs' marriage was happy and free of conflict. (3)

The trial court admitted the testimony as state-of-mind evidence under OEC 803(3). Defendant did not ask for a limiting instruction, and none was given. At the conclusion of the trial, defendant was convicted on all counts and sentenced to life imprisonment without the possibility of parole.

On appeal, defendant assigned error to, among other things, the trial court's evidentiary ruling regarding that hearsay testimony. In response, the state argued that the trial court's ruling should be affirmed because Hughes's statement was not actually hearsay, inasmuch as it was not offered to prove the truth of the matter asserted. The state also repeated its contention that the statement, if it were hearsay, was admissible under OEC 803(3) as evidence of Tina's state of mind.

In an en banc opinion, a divided Court of Appeals agreed with defendant that the evidence was hearsay that was not admissible under the state-of-mind exception to the hearsay rule and that the trial court had erred in admitting it on that basis. Clegg, 161 Or App at 207-10. (4) Notwithstanding the Court of Appeals' conclusion that the trial court erred, however, that court affirmed defendant's convictions, because it concluded that the error was harmless. Id. at 211. We allowed defendant's petition for review.

"Hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC 801(3). The first issue that we address is whether Hughes's testimony included hearsay.

Hughes's testimony recounted her conversation with Tina. In that conversation, Tina in turn recounted her telephone conversation with defendant. As a result, Hughes's testimony included several out-of-court statements -- Tina's statement to Hughes, which, in turn, included Tina's own statements to defendant during their phone conversation, and defendant's statements to Tina -- each of which potentially poses a hearsay problem if offered for its truth. To determine whether Hughes's testimony was inadmissible hearsay, therefore, we first determine whether any statement was offered for its truth. (5)

Neither Tina's statements to defendant nor defendant's statements to Tina during their telephone conversation were offered for their truth. The prosecution did not seek to prove either that Gladys was going to take Tina to the bank or that defendant was going to take Tina to lunch. Accordingly, those statements are not hearsay. (6) Tina's statement to Hughes, however, was offered to prove exactly what it asserted, namely, that defendant had just called Tina (7) and that, when Tina suggested to defendant that she might be leaving her office, he tried to persuade her not to go. Accordingly, those statements by Tina to Hughes are hearsay and are admissible only if they qualify under one of the exceptions to the hearsay rule.

In Oregon, "[h]earsay is not admissible except as provided in [OEC 801] to [OEC 806] or as otherwise provided by law." OEC 802. The question thus becomes whether Tina's statement to Hughes qualifies under one of the exceptions to which OEC 802 refers.

As noted, Tina's account of her conversation with defendant is hearsay, because it was offered to prove the truth of its contents, viz., that Tina in fact told defendant that Gladys was going to take her to the bank and that defendant in fact responded by "insist[ing] I not let Gladys take me, that he was going to take me when he took me to lunch." The trial court ruled that Tina's statement was admissible under OEC 803(3), the "state-of-mind" exception. The Court of Appeals disagreed. The Court of Appeals' majority stated that the problem with applying OEC 803(3) was that

"the evidence at issue was introduced to show defendant's state of mind or intentions, not the victim's state of mind. The victim's state of mind -- that she was happy and that she intended to go to the bank after lunch -- as shown by her relation of her conversation to her coworker, was not relevant to any material issue in this case."

Clegg, 161 Or App at 208 (emphasis in original). The court went on to state:

"The language of OEC 803(3) makes it clear that evidence is not excluded by the hearsay rule if it is a statement of the 'declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health * * *.' (Emphasis added.) As noted above, the principal purpose of Kendra Hughes's statements was not to show the victim's state of mind. Rather, the evidence was offered to show defendant's state of mind. The language of OEC 803(3) does not authorize the admission of evidence of the state of mind or intentions of someone other than the declarant.

"* * * * *

"Kendra Hughes's testimony regarding the victim's statement about intending to go to the bank with defendant after lunch was not admissible to show that defendant asked the victim not to go to the bank until after lunch -- or inferentially, that defendant wanted the victim to stay at her office until the gunmen arrived."

Clegg, 161 Or App at 208-10 (emphasis in original).

In reaching the foregoing conclusion, the Court of Appeals appears improperly to have conflated three distinct inquiries, viz.: (1) whether the statement actually reflected some aspect of Tina's then-existing state of mind and, therefore, is not excluded by the general rule against hearsay; (2) whether the evidence is relevant and therefore admissible for the purpose of establishing that state of mind; and (3) whether the state may use that evidence, if it is admissible for that purpose, for any other purpose. We consider each question in turn.

Tina's report of her conversation with defendant is not a direct commentary on her "state of mind, emotion, sensation or physical condition," as described in OEC 803(3). However, a statement, for purposes of the hearsay rule, includes oral "assertions" as well as nonverbal conduct intended as an assertion. OEC 801(1)(a) and (b). Therefore, even if a statement merely reflects the declarant's state of mind or reasonably supports an inference as to the declarant's state of mind, it constitutes an assertion of the declarant's state of mind for purposes of OEC 803(3). See Christopher B. Mueller and Laird C. Kirkpatrick, 4 Federal Evidence,