State v. Quebrado

[[COURTLISTENER_SUBOPINION {"id":"11159218","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
No. 875              October 8, 2025                   99

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            CARLOS ALBERTO QUEBRADO,
                 Defendant-Appellant.
            Washington County Circuit Court
                 19CR34736; A174385

  On remand from the Oregon Supreme Court, State v.
Quebrado,
372 Or 301
,
549 P3d 524
(2024).
  Ricardo J. Menchaca, Judge.
  Submitted on remand June 27, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
100   State v. Quebrado
Cite as
344 Or App 99
(2025)                                               101

           HELLMAN, J.
         This case is before us on remand from the Oregon
Supreme Court. State v. Quebrado,
372 Or 301
,
549 P3d 524
(2024) (Quebrado II). Defendant was convicted of one count of
second-degree assault, two counts of unlawful use of a weapon,
and one count of fleeing or attempting to elude a police officer.
Defendant appealed his convictions, arguing, among other
things, that the trial court erred in denying his motion for
a mistrial, or alternatively, motion to strike testimony that
he asserted violated his state confrontation rights. We con-
cluded that defendant’s motions were untimely and therefore
not preserved, and affirmed his convictions in a nonpreceden-
tial opinion. State v. Quebrado,
323 Or App 308, 310
(2022)
(nonprecedential memorandum opinion) (Quebrado I).
         Defendant petitioned for review, challenging our
ruling on the issue of preservation.1 The Supreme Court
took review and concluded that “defendant’s motion for a
mistrial on confrontation grounds under Article I, section
11, was timely and therefore preserved the issue for appeal.”
Quebrado II,
372 Or at 315
. That court reversed in part,
affirmed in part, and remanded the case to us to consider
the merits of defendant’s confrontation-based arguments.
Therefore, the issues before us on remand are whether
defendant’s Article I, section 11, confrontation rights were
violated, and, if so, whether the trial court abused its discre-
tion in denying his motion for a mistrial, or, alternatively,
his motion to strike the disputed testimony. On remand, we
conclude both that the admission of the testimony violated
defendant’s right under Article I, section 11, to confront wit-
nesses against him and that the trial court abused its dis-
cretion when it denied defendant’s motions. Accordingly, we
reverse and remand for further proceedings.
                             BACKGROUND
         The charges in this case arose when defendant’s
girlfriend, Sisco, got into an altercation inside a bar with
E and D, who were other patrons of the bar and strangers
    1
      Defendant’s petition for review also presented a second question related to
the trial court’s refusal to answer a jury question. The Supreme Court declined
to reach that question. Quebrado,
372 Or at 305
n 1. Nor do we address that issue
because it may not arise again on remand.
102                                                     State v. Quebrado

to defendant and Sisco. After the altercation, the parties
moved to the parking lot where Sisco continued to yell racial
slurs at E and D. Defendant eventually drove away from
the bar with Sisco still yelling at E and D from the pas-
senger window. E and D left several minutes later. As E
and D drove home, defendant and Sisco began to pursue E
and D in what is colloquially referred to as a “car chase.”
At one point during the car chase, Sisco fired a shotgun at
E and D from the passenger window. Shotgun pellets hit
E in the forehead and hand. Not long after, police appre-
hended defendant and Sisco, and the state charged them
with attempted murder, second-degree assault, unlawful
use of a weapon, and attempting to elude a police officer.
Defendant was charged as an accomplice to all the crimes
except attempting to elude, for which he was charged as the
principal. Sisco entered a plea deal contingent on her agree-
ment to testify against defendant; defendant exercised his
constitutional right to a jury trial.
          At trial, D testified that, at the bar, he had mistaken
Sisco for a friend and playfully flicked her hair. D said that
in response, Sisco smacked D’s hat off his head and yelled
at him that “I’ll kill you, you stupid f-ing N-word.” The state
also elicited testimony from E, D, and a police officer that, as
defendant was rummaging in the back seat of his car in the
bar parking lot, Sisco told defendant, “No, not here” or “Not
right here. Not right here.” Defendant did not contempora-
neously object to the statements on confrontation grounds
because the state had indicated that it would call Sisco as a
witness.
         Ultimately, however, the state rested its case with-
out calling Sisco as a witness. After the state rested, defen-
dant moved for a mistrial, or alternatively to strike D’s tes-
timony that Sisco said, “I’ll kill you, you stupid f-ing N-word”
and the testimony that Sisco told defendant “No, not here”
or “Not right here. Not right here,” in the parking lot.2
Defendant took the position that both statements were hear-
say, that the state had failed to prove Sisco’s unavailabil-
ity, and that, as a result, introduction of those statements
    2
      Along with his motion to strike, defendant also sought a curative instruc-
tion to the jury; however, defendant noted that the motion to strike and curative
instruction seemed to be an inadequate remedy.
Cite as
344 Or App 99
(2025)                               103

violated his confrontation rights under Article I, section
11. The state disputed that the statements were hearsay,
instead arguing that they were co-conspirator statements
and thus Article I, section 11, did not prohibit their admis-
sion. The trial court denied the motions and declined to give
a curative instruction, explaining, “I don’t find it’s hearsay
and I don’t find it’s testimonial, the two statements at issue.”
         In closing argument, the state urged the jury to
find that Sisco had intended to kill and harm E and D and
that defendant aided and abetted her commission of those
crimes when he drove his car near E and D’s car while Sisco
shot at them.
         Defense counsel told the jury that defendant had
been caught in the middle of a dispute between his girlfriend
and a stranger, and that he never intended to harm or kill
E and D. Counsel explained that when defendant was rum-
maging in his car, he was looking for his phone to call the
police. Defense counsel challenged E and D’s veracity and
suggested that D was aggressive and much more responsible
for the events than the state claimed. Relying on defendant’s
testimony and recordings of E’s 9-1-1 call, defense counsel
argued that the car chase was in fact defendant trying to flee
from E and D, who kept pursing him, and that defendant did
not know that Sisco planned to shoot at E and D until she
pulled out the gun in the middle of the car chase.
         In rebuttal, the state argued that Sisco had “no idea
that this shotgun was in [defendant’s] vehicle until [defen-
dant] pulled it out” and that when Sisco said “No, not here,”
it was because “she [saw] the defendant himself retrieving
the shotgun.” The state asserted that her statement proved
defendant was either “about to use the gun himself” or that
he intended to make the shotgun “readily accessible” for
Sisco to use later.
        The jury acquitted defendant of the attempted first-
degree murder charges and convicted him of second-degree
assault and unlawful use of a weapon as an accomplice, and
of attempting to elude a police officer as a principal.
        On remand, we now consider whether the disputed
testimony violated defendant’s confrontation rights under
104                                        State v. Quebrado

Article I, section 11, and whether the trial court abused
its discretion in denying defendant’s motion for a mistrial
or his motion to strike the testimony and give a curative
instruction.
                         ANALYSIS
A.    Hearsay and the right to Confrontation under Article I,
      Section 11
          Article I, section 11, provides that “[i]n all crimi-
nal prosecutions, the accused shall have the right to * * *
meet the witnesses face to face.” One of the animating prin-
ciples behind the adoption of the confrontation right was “to
limit and condition the use of prior testimony in lieu of live
witness testimony at trial.” State v. Copeland,
353 Or 816,
829
,
306 P3d 610
(2013). Under that provision, an out-of-
court statement made by a declarant who does not testify at
trial is admissible only if (1) the declarant is “unavailable,”
and (2) the statements have “adequate indicia of reliabil-
ity.” State v. Campbell,
299 Or 633, 648
,
705 P2d 694
(1985)
(adopting, on independent state grounds, the confrontation
test initially articulated by the United States Supreme
Court in Ohio v. Roberts,
448 US 56
,
100 S Ct 2531
,
65 L Ed
2d 597
(1980), overruled by Crawford v. Washington,
541 US
36
,
124 S Ct 1354
,
158 L Ed 2d 177
(2004)); see also State v.
Belden,
369 Or 1, 9-10
,
499 P3d 783
(2021) (noting that not-
withstanding Crawford, Oregon courts continue to adhere
to the Campbell/Roberts test).
         Because the confrontation right applies to hear-
say statements, the threshold question in a confrontation
analysis is whether the statements at issue constitute hear-
say. State v. Dimolfetto,
342 Or App 456, 500
, ___ P3d ___
(2025). Hearsay is an out-of-court statement “offered in evi-
dence to prove the truth of the matter asserted,” OEC 801(3),
and a “statement” is “[a]n oral or written assertion,” OEC
801(1)(a).
         Determining hearsay for purposes of a constitu-
tional analysis is not coextensive with a statutory analysis.
That is, whether a statement is hearsay under the evidence
code does not automatically determine whether a statement
is hearsay for purposes of Article I, section 11. See State v.
Cite as
344 Or App 99
(2025)                               105

Wyant,
300 Or App 1
, 13 n 2,
452 P3d 471
(2019), rev den,
366 Or 451
(2020) (recognizing the “complex relationship”
between the confrontation clause and hearsay rules and
observing that nonhearsay may not necessarily be “auto-
matically admissible in the context of a confrontation clause
challenge”). In a constitutional analysis, we are concerned
with what the framers of the Oregon Constitution would
have considered to be hearsay, not with what a modern leg-
islature has defined as hearsay. See Copeland,
353 Or at 822
(when construing a provision of the Oregon Constitution, we
examine the text “in light of the meaning understood by the
framers * * * [to] inform our application of the constitutional
text to modern circumstances”). Therefore, to determine
whether the statements at issue in this case are hearsay for
purposes of Article I, section 11, we must consider whether
the framers could have characterized them as such.
B.   The statement “I’ll kill you, you stupid f-ing N-word” was
     hearsay.
        The first challenged statement is Sisco’s decla-
ration to D that “I’ll kill you, you stupid f-ing N-word” in
response to him flicking her hair in the bar. The parties
dispute whether that statement was offered for its truth, as
required for hearsay. The state argues that the statement
was a verbal act that has legal significance merely because
it was made and that it was not offered for its truth but as
circumstantial evidence that Sisco was angry at D. We dis-
agree with the state’s arguments.
        Although the statement could be used to demon-
strate that Sisco was angry at D, that was not the sole
purpose of introducing it. To prove that defendant was an
accomplice to attempted murder, the state had to prove that
defendant had the specific intent to “promote or facilitate”
the attempted murder and that he “aid[ed] or abet[ted] or
agree[d] or attempt[ed] to aid and abet” Sisco in committing
the crime. ORS 161.155(2)(b); State v. Lopez-Minjarez,
350 Or
576, 582
,
260 P3d 439
(2011) (holding that ORS 161.155(2)(b)
“requires a specific intent: the intent to promote or facilitate
the commission of the crime committed by another”). That
necessarily required proof that Sisco intended to kill E and
D, rather than to just threaten or harm them in another
106                                                     State v. Quebrado

way. Sisco’s statement, “I’ll kill you,” made to D mere hours
before she shot at him with a shotgun from a moving vehi-
cle was evidence of that intent, but only if the jury believed
that Sisco meant it when she threated to kill D.3 We have
previously held that statements qualify as hearsay when
they contain assertions that support the state’s theory of
the case only if the jury believed in the truth of the asser-
tion. See State v. Kaino-Smith,
277 Or App 516, 523
,
371 P3d
1256
(2016) (concluding that statements were offered for
their truth because they supported the proponent’s position
only if considered for their truth); State v. Causey,
265 Or
App 151, 154-55
,
333 P3d 345
(2014) (text messages were
offered for their truth because they were relevant circum-
stantial evidence only if the jury accepted the truthfulness
of the content of the messages). Moreover, the jury was not
instructed that they could only consider Sisco’s statement
as circumstantial evidence that Sisco was angry. Thus, the
statement in which Sisco told D that she would kill him was
offered for the truth of the matter asserted and was hearsay.
C. The statement “No, not here” or Not right here. Not right
   here,” was hearsay.
         We turn next to the second statement, in which
Sisco told defendant, “No, not here” or Not right here. Not
right here,” while defendant was rummaging in the back
seat of his car. In Quebrado I, we determined that there was
sufficient evidence to support the trial court’s admission of
that statement as a coconspirator statement under OEC
801(4)(b)(E). Quebrado I,
323 Or App at 310
. The Supreme
Court’s decision in Quebrado II did not disturb that holding.
        That statutory analysis, however, does not answer
the constitutional issue now before us. OEC 801(4)(b)(E) cur-
rently defines a co-conspirator statement as “not hearsay.”
But co-conspirator statements were historically treated “as
an exception to the hearsay rule.” State v. Cornell,
314 Or 673,
683
,
842 P2d 394
(1992) (emphasis added). Indeed, the Oregon
Supreme Court recognized that historical understanding

    3
       Indeed, when the state argued against defendant’s motion for a mistrial it
took the position that this statement was made “in furtherance of the conspir-
acy,” indicating that its purpose in introducing the statements was to prove that
defendant intended to, and did, help Sisco try to kill E and D.
Cite as
344 Or App 99
(2025)                              107

when it applied a constitutional analysis to determine whether
introduction of co-conspirator statements violated Article I,
section 11. Id. at 682-83. Therefore, although co-conspirator
statements are currently “not hearsay” under OEC 801(4)(b)
(E), a coconspirator statement may nevertheless constitute
hearsay for purposes of Article I, section 11, if the statement
meets the historical definition of hearsay.
         In this case, the state argues that the statement,
“No, not here” or Not right here. Not right here,” is not a
“statement” at all because it contains no assertive content,
but rather is a command incapable of being true or false.
According to the state, Sisco was simply instructing defen-
dant not to take the gun out in the parking lot. We agree that,
on its face, the statement does appear to be a command, but
that does not end the inquiry. In State v. Schiller-Munneman,
359 Or 808, 816
,
377 P3d 554
(2016), the Supreme Court
addressed an analogous issue of whether questions, which
typically are not considered assertions, could nevertheless
be assertions for hearsay purposes. The Supreme Court
determined that a communication may be found to be an
assertion, even though not phrased as such, “if it contains—
expressly or impliedly—factual content that amounts to an
assertion.”
Id.
(citing Laird C. Kirkpatrick, Oregon Evidence
§ 801.01[3][b], 699 (6th ed 2013)). In Schiller-Munneman, the
defendant was charged with rape, and one of the commu-
nications at issue was a text message from the victim to
defendant asking, “Why did you do that to me?” Id. at 817
(brackets omitted). The court concluded that the question,
when considered in the context of the parties’ arguments,
impliedly included an assertion that the contact was non-
consensual and therefore constituted a “statement” for pur-
poses of the hearsay rule. Id. at 817.
         Here, in context, Sisco’s communication to defen-
dant, “No, not here” or Not right here. Not right here,” con-
tained the implied assertion that defendant intended to use
the gun against E and D. In fact, the state told the jury
in closing that there was “no other reason” for Sisco to say
that to defendant “except that he was about to use the gun
himself.” Therefore, we conclude that the second statement
contains an assertion, was offered to prove the truth of the
108                                           State v. Quebrado

matter asserted, and consequently, is hearsay for purposes
of the confrontation right.
D. The hearsay statements were inadmissible under
   Article I, section 11, because Sisco was available to tes-
   tify at trial.
         Having determined that both statements constitute
hearsay for purposes of the confrontation right, we turn now
to whether the statements were admissible. Under Article I,
section 11, hearsay testimony is admissible over a confron-
tation objection only if the declarant is unavailable and the
statements have adequate indicia of reliability. Campbell,
299
Or at 648
. The burden of demonstrating unavailability falls
on the state. Belden,
369 Or at 11
; see also Campbell,
299 Or at
651
(“The defendant has no burden to prove unavailability.”).
         Sisco was available at the time of defendant’s trial.
Her plea bargain explicitly required her to testify against
defendant, and she was in jail under the state’s subpoena.
Because the state failed to demonstrate that Sisco was
unavailable, we need not consider whether the statements
had adequate indicia of reliability. The admission of Sisco’s
out-of-court statements violated defendant’s Article I, sec-
tion 11, confrontation rights.
E.    The trial court abused its discretion when it denied defen-
      dant’s motion for a mistrial, or in the alternative to strike
      Sisco’s testimony, because its decision was based on
      an incorrect determination that the statements were not
      hearsay. That ruling deprived defendant of a fair trial.
          Because defendant expected the state to call Sisco to
testify, he did not contemporaneously object to the violation
of his confrontation rights, but rather moved for a mistrial or,
alternatively, to strike the testimony after it became appar-
ent that the state would not call Sisco to testify. As noted, the
Supreme Court concluded that, under the circumstances of
this case, defendant’s confrontation objection was timely and
preserved the issue for appeal. Quebrado II,
372 Or at 315
.
We turn now to the trial court’s denial of those motions.
        We review a trial court’s denial of a motion for a
mistrial for an abuse of discretion. State v. Worth, 231 Or
Cite as
344 Or App 99
(2025)                                                   109
App 69, 74, 218 P3d 166
(2009), rev den,
347 Or 718
(2010).
We review the denial of a motion to strike testimony under
that same standard. State v. Cox,
337 Or 477, 490
,
98 P3d
1103
(2004), cert den,
546 US 830
(2005). When the trial
court’s exercise of discretion is based on a mistaken premise
of law, and the effect of that error is to deny defendant a
fair trial, the court’s decision does not fall within the range
of legally correct choices and does not produce a permissi-
ble, legally correct outcome. Worth, 213 Or App at 75; see
also State v. Johnson,
199 Or App 305, 313-14
,
111 P3d 784
,
rev den,
339 Or 701
(2005) (abuse of discretion to deny the
defendant’s motion for a mistrial where the court had erro-
neously admitted a codefendant’s confession in violation of
the defendant’s confrontation rights).
         Here, in response to defendant’s motions, the trial
court denied the motion for a mistrial and motion to strike
testimony and declined to give a curative instruction. The
trial court’s ruling was based on its legal determination
that neither statement was hearsay. But as we explained
above, both challenged statements are hearsay for purposes
of the confrontation right under Article I, section 11. The
trial court denied defendant’s motions based on an incorrect
legal premise, which is itself an abuse of discretion. Worth,
231 Or App at 75
.
         The trial court’s rulings deprived defendant of a fair
trial. See State v. Kurz,
342 Or App 772, 785
, ___ P3d ___
(2025) (evaluating the “seriousness of the prejudice and the
manner in which the court sought to cure the error, with the
decisive issue [being] whether defendant’s ability to receive
a fair trial was impaired”). The improperly admitted state-
ments supported the state’s position that Sisco intended
to kill and otherwise harm E and D and that defendant
intended to help her do so.4 Indeed, the prosecutor relied
on Sisco’s statement “not here” in closing to urge the jury to
find that defendant knew of Sisco’s plans to kill and/or harm
E and D and intended to help her accomplish it.
    4
       We note that Sisco’s “I’ll kill you” statement to D helps establish her intent
to kill or harm E and D. Thus, the statement is prejudicial to defendant notwith-
standing his acquittal on the attempted murder charges, because it suggests that
Sisco also had the intent to harm E and D, a prerequisite to proving defendant
was her accomplice on the second-degree assault charge.
110                                         State v. Quebrado

         Moreover, defendant’s defense was primarily based
on his own testimony that he was unaware of Sisco’s plans
and merely trying to flee from E and D when she began
shooting. The core of the defense depended on defendant’s
credibility, and the state used Sisco’s statements to under-
mine that credibility. In the face of the challenge to his
defense, and to his credibility, defendant was not afforded
the opportunity to cross-examine Sisco for a more complete
explanation of her statements. That deprivation is inconsis-
tent with one of the “animating principles” of the confronta-
tion right—”to limit and condition the use of prior testimony
in lieu of live witness testimony at trial.” Copeland,
353 Or
at 829
. In light of that error, defendant did not receive a fair
trial.
        Reversed and remanded.