S054607, Opinion — State v. Rodriguez-Castillo

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Argued and submitted October 3, 2007, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings July 3, 2008

STATE OF OREGON,
Respondent on Review,
v.
CESAR RODRIGUEZ-CASTILLO,
Petitioner on Review.
(CC 030872; CA A122360; SC S054607)
188 P3d 268

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CJS, Criminal Law § 856.

On review from the Court of Appeals .*

Ernest G. Lannet, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. Jamesa
J. Drake, Deputy Public Defender, filed the petition for
review. With them on the petition for review and the brief
was Peter Gartlan, Chief Defender, Office of Public Defense
Services, Legal Services Division.

Kaye Ellen McDonald, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.

Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices .**

\* Appeal from Lincoln County Circuit Court, Charles P. Littlehales, Judge.
210 Or App 479, 151 P3d 931 (2007).

** Linder, J., did not participate in the consideration or decision of this case.

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KISTLER, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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KISTLER, J.

The primary question this case presents is whether a
translated statement is hearsay and, if it is, whether the
statement comes within an exception to the hearsay rule. The
trial court ruled that the victim's translated statements were
admissible under an exception for reports of sexual abuse,
and the jury convicted defendant of one count of sexual abuse
and acquitted him on the remaining 10 counts. A divided en
banc Court of Appeals affirmed. State v. Rodriguez-Castillo,
210 Or App 479, 151 P3d 931 (2007). The lead opinion in the
Court of Appeals reasoned that the statements were not
admissible under the hearsay exception on which the trial
court had relied. Id. at 489. It concluded, however, that the
statements were admissible under OEC 803(28), the residual
exception to the hearsay rule. Id. at 496. We allowed defen-
dant's petition for review and now reverse the Court of
Appeals decision.

Defendant and his wife lived with their three daugh-
ters and their niece in Lincoln County. In June, defendant's
uncle, his two sons, and his 13-year-old daughter (the victim)
moved into defendant's home. For several weeks, the two
families shared the same home. Defendant and his family
then moved to California for the summer and returned in
October. When defendant and his family returned, the victim
began to act differently. The victim reported to a friend, fam-
ily, and the police that defendant had touched her inappro-
priately. The specificity and the details of the victim's reports
of abuse varied, however. The most detailed and complete
report of the abuse occurred during the victim's second inter-
view with a detective. Because that interview also gave rise
to the evidentiary issue that divided the Court of Appeals, we
first set out what the victim reported during that interview.
We then describe the charges that resulted from the victim's
reports of abuse and the evidentiary ruling that gave rise to
the Court of Appeals decision.

The victim primarily speaks Spanish. The detective
who interviewed her speaks only English. To allow the two of
them to communicate, a bilingual middle-school tutor, Pedro
Perez, served as an interpreter during the second interview.
During that interview, the victim described, through Perez,

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three incidents of abuse to the detective. The victim reported
that the first incident occurred one night while defendant's
wife was sleeping in one bedroom with their children, the vic-
tim's father and her younger brother were sleeping in the
other bedroom, and the victim's older brother was sleeping on
the couch in the living room. The victim and defendant were
also in the living room watching television. She was on
another couch and defendant was on the floor. She said that
"defendant touched [her] chest, he touched [her] down below,
both places, with his hand." When asked if he touched her "on
the outside of her body or the inside of her body," she said,
"On the inside." Defendant then "grabbed her around the
waist, and wanted her to stand up, and he pulled her by the
hand and dragged her into the kitchen" where he exposed his
genitals and tried to get the victim to touch them.

The victim also reported to the detective, through
Perez, that the second and third incidents occurred one day
when defendant's wife took their children and went to a
motel. She said that the second incident occurred in the after-
noon. Defendant, the victim, her brothers, and a cousin were
the only ones at home. All of them "started kind of goofing off
and messing around and locking each other out of the house."
When the older brother locked defendant and the victim out,
defendant grabbed the victim around the waist and would
not let go. Eventually she got away and got back in the house.
At that point, the cousin left, and the victim's older brother
began taking a shower before going to work. While her older
brother was taking a shower, the victim went in the bedroom.
Defendant followed her. He grabbed her, pushed her onto the
bed, and touched her chest.

The victim reported that the third incident occurred
later that same night, while the defendant's wife and chil-
dren were at the motel. The victim and her younger brother
were home alone. Defendant, the victim's older brother, and
her father were at work. Defendant came home from work
early and sat beside the victim on the couch. He started
stroking her hair. She tried to get up, but defendant grabbed
her hand and said, " 'Don't leave.'" He touched her chest and
then touched her "[d]own below. She said that [defendant]
touched her that night down below under her pants with his
hand."

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The state charged defendant with one count of first-
degree sexual penetration, one count of second-degree sexual
penetration, one count of private indecency, and eight counts
of first-degree sexual abuse.1 At trial, the state called the
detective to tell the jury the statements, set out above, that
the victim had made to him through Perez. Shortly after the
detective began recounting what the victim had said during
the second interview, defendant's counsel objected on the
ground that the detective's testimony was double hearsay;
that is, the detective was telling the jury what Perez told him
the victim had said, and the evidence was being offered for
the truth of the matter asserted-to prove that defendant
sexually abused the victim. Defendant acknowledged that
the victim's out-of-court statements were admissible under
an exception to the hearsay rule for reports of abuse.
See OEC 803(18a)(b) (authorizing the admission of some
out-of-court statements regarding abuse if the declarant is
available for cross-examination). He contended, however,
that Perez's repetition of those statements to the detective
added another layer of hearsay that did not come within any
exception to the hearsay rule.

The state responded that the premise of defendant's
argument was wrong; in the state's view, Perez's repetition of
the victim's statements to the detective did not add another
layer of hearsay. The state did not argue that, if Perez's state-
ments added another layer of hearsay, those statements were
admissible under an exception to the rule against hearsay.2
Specifically, the state did not argue (and the trial court did
not decide) whether the detective's repetition of Perez's
out-of-court statements was admissible under the residual

1 The indictment specified that four counts of first-degree sexual abuse related
to touching the victim's breasts and that the remaining four counts of first-degree
sexual abuse related to touching her vagina. The eight counts of first-degree sexual
abuse were paired based on alternative means for charging first-degree sexual
abuse; for example, count three alleged that defendant committed first-degree sex-
ual abuse because he touched the victim's vagina by means of forcible compulsion,
and count four alleged that he committed first-degree sexual abuse because he
touched her vagina when she was under 14 years of age. The other six counts of
first-degree sexual abuse were paired in the same way.

2 Defendant had raised the same issue earlier during the detective's testimony,
and our summary of the state's arguments comes from both that discussion and the
discussion surrounding the admission of the victim's statements.

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exception to the hearsay rule. See OEC 803(28) (setting out
criteria necessary to come within that exception).

After considering the parties' arguments, the trial
court overruled defendant's objection, apparently on the
ground that both the victim's out-of-court statements and
Perez's out-of-court statements were admissible under OEC
803(18a)(b) as reports of abuse. The detective then repeated
the victim's statements to the jury, and the state introduced
additional evidence to prove defendant's guilt.

In instructing the jury at the end of the trial, the
court did not tell the jury which of the 11 counts corresponded
to which of the three incidents. The trial court submitted sep-
arate verdict forms for each count; each form provided a
space for the jury to record its verdict on that count and also
contained signature lines for each juror who had voted for
that verdict. Consistently with the indictment, the verdict
forms for the eight counts of first-degree sexual abuse indi-
cated the body part (vagina or breasts) that defendant alleg-
edly had touched and the basis for elevating the charge to
first-degree sexual abuse (the victim's age or forcible compul-
sion). The verdict forms did not otherwise distinguish among
the three incidents, however.3 After considering the evidence,
the jury convicted defendant of count seven of the indictment.
It found him guilty of first-degree sexual abuse for touching
the victim's vagina when she was under 14 years of age. The
jury acquitted defendant of the remaining counts.

On appeal, a divided en banc Court of Appeals
upheld the trial court's evidentiary ruling but on a different
ground. The lead opinion assumed that Perez's repetition of
the victim's statements to the detective added another layer
of hearsay, and it concluded that Perez's statements were not
admissible under OEC 803(18a)(b), as the trial court appears

$ The two counts of penetration and the one count of private indecency presum-
ably related to the first incident. There was evidence that, during that incident,
defendant had touched the inside of the victim's vagina and then exposed himself
to her. The difficulty lies in determining from the trial court's instructions and jury
verdict forms which of the eight counts of first-degree sexual abuse related to which
of the three incidents.

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to have ruled. Rodriguez-Castillo, 210 Or App at 489. How-
ever, a majority of the court concluded that Perez's state-
ments were admissible under the residual exception to the
hearsay rule, OEC 803(28)-an exception that neither the
state had argued before the trial court nor that the trial court
had considered. See id. at 496 (lead opinion) (upholding the
trial court's evidentiary ruling on that ground); id. at 513
(Edmonds, J., concurring).4 We allowed defendant's petition
for review to consider the evidentiary issue that divided the
Court of Appeals.

The detective's testimony reduces to the following
paradigm: During the detective's interview with the victim,
the victim told Perez that defendant had sexually abused her.
Perez then translated and repeated those statements to the
detective, who ultimately repeated them to the jury for the
truth of the matter asserted; that is, the state offered the
detective's testimony to prove that defendant had sexually
abused the victim on three separate occasions. In any other
context, the detective's testimony would be double hearsay.
See State v. Derryberry, 270 Or 482, 488, 528 P2d 1034 (1974)
("[t]he testimony of the police officers that they heard [defen-
dant's friend] say that he heard the defendant say that he
stole the furniture was 'double hearsay' "); Christopher B.
Mueller and Laird C. Kirkpatrick, 5 Federal Evidence § 8:136
at 244 (3d ed 2007) (describing layered or double hearsay).
Mueller and Kirkpatrick provide the following "fairly com-
mon" example of double hearsay in their treatise on evidence:

"[A]ssume that M learns from L that K said that the light
was green. If M testifies about L's statement describing
what K said and the purpose is to prove that the light was

4 Four judges reasoned that Perez's statements were admissible under OEC
803(28), the residual exception to the hearsay rule. Rodriguez-Castillo, 210 Or App
at 496 (lead opinion). One judge agreed with the lead opinion's reasoning on that
issue but did not join its opinion because he would have analyzed a separate issue
differently. Id. at 513 (Edmonds, J., concurring). Three judges disagreed with the
lead opinion's reasoning on the evidentiary issue but did not reach the question
whether any error was harmless because those judges would have reversed on a
different issue. Id. at 528 and n 11 (Brewer, C. J., dissenting). One judge disagreed
with the lead opinion's reasoning on the evidentiary issue and would have held that
the erroneously admitted evidence was not harmless. Id. at 530-31 (Wollheim, J.,
dissenting).

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green, then M's testimony involves layered (double)
hearsay."

5 Federal Evidence § 8:136 at 244. To paraphrase that exam-
ple, the detective's testimony was double hearsay because the
detective testified about Perez's statement describing what
the victim said and did so to prove the truth of the matter
asserted-that defendant had sexually abused the victim.

Under OEC 805, the detective's testimony was
admissible only if the state could show that each out-of-court
statement either came within an exception to the hearsay
rule or did not constitute hearsay. See OEC 805 (stating that
rule); Hansen v. Abrasive Engineering and Manufacturing,
317 Or 378, 388-89, 856 P2d 625 (1993) (same). The parties
agree that, although the victim's out-of-court statements
were hearsay, they were admissible under the exception for
reports of abuse set out in OEC 803(18a)(b).5 The parties dis-
agree whether Perez's repetition of the victim's statements to
the detective adds another layer of hearsay and, if it does,
whether his repetition of her statements comes within an
exception to the hearsay rule.

The state contends initially that Perez's statements
are not hearsay either because Perez was merely a "language
conduit" between the victim and the detective or because
Perez was the victim's agent. The state argues alternatively
that, if Perez's statements constitute a second layer of hear-
say, then the Court of Appeals correctly concluded that his
statements came within the residual exception to the hear-
say rule. We begin with the state's argument that Perez's
repetition of the victim's statements to the detective did not
constitute hearsay because Perez served as a "language con-
duit" between the victim and the detective.

In making that argument, the state notes that OEC
801(3) defines hearsay as an out-of-court "statement
\* \* \* offered in evidence to prove the truth of the matter
asserted." It then notes that OEC 801(1)(a) defines a state-
ment as "[a]n oral or written assertion." The state reasons
that, in translating a person's statements from one language

5 Because Perez could not remember what the victim had said, he was unable
to testify regarding her statements to him,

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to another, an interpreter is not asserting anything. Rather,
an interpreter is merely converting a speaker's statements to
another language and conveying the converted statements to
another person. The state concludes that, because Perez's
statements were not assertions, they were not hearsay.

The premise of the state's argument-that, in con-
verting the victim's statements from Spanish to English and
repeating them to the detective, Perez was not making an
independent assertion-is difficult to square with both the
detective's testimony and established case law. When the
detective told the jury that the victim said that defendant
had assaulted her, he based his testimony on two separate
statements: (1) the victim's statement to Perez that defen-
dant had assaulted her and (2) Perez's statement to the
detective that the victim had said that defendant had
assaulted her. Each statement asserts a related but separate
proposition. The first statement asserts what defendant did.
The second statement asserts that the victim said that he did
it. The second statement in this case asserts no more and no
less than the second statement asserted in the "fairly
common" example of double hearsay from Mueller and
Kirkpatrick that we quoted above. See Mueller and
Kirkpatrick, 5 Federal Evidence § 8:136 at 244 (describing a
"fairly common" example of double hearsay).

In many cases, a second person may seek only to
repeat what another person said and thus may intend to
serve only as a conduit, but it does not follow that the second
person's repetition of the first person's statement does not
add another layer of hearsay. In Hickey v. Settlemier, 318 Or
196, 199, 864 P2d 372 (1993), for instance, a reporter for a tel-
evision news program repeated the defendant's words during
a broadcast. The plaintiff sought to introduce a videotape of
the broadcast at trial, and this court held that the reporter's
out-of-court statement repeating the defendant's words was
inadmissible hearsay. Id. at 204-06. That was true even
though the reporter was merely repeating what the defen-
dant had said, much as Perez did in this case.6

6 The state appears to rely on the fact that Perez was translating the victim's
statement to argue that Perez's out-of-court statement is not hearsay. As we
understand the state's argument, it contends that Perez's role as an inter-
preter made his out-of-court statements trustworthy. The fact, however, that an

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The state argues alternatively that Perez's state-
ments were not hearsay because Perez was the victim's
agent. That argument rests on the premise that, when Perez
was translating the victim's statements, he was acting as her
agent. The state then reasons that, because Perez was the
victim's agent, Perez's statements are admissible as if they
were the victim's statements.

Even if we assume that Perez was acting as the vic-
tim's agent, the Oregon Evidence Code recognizes a more
limited agency exception to the rule against hearsay than the
state advocates. OEC 801(4) excepts from the definition of
hearsay certain out-of-court statements that otherwise
would come within that definition. Specifically, OEC
801(4)(b)(A) provides that a party's out-of-court statement is
not hearsay if it is offered against the party. As a corollary to
that rule, the evidence code provides that "[a] statement by
the party's agent * * * concerning a matter within the scope
of the agency * * * [and] made during the existence of the
relationship" is also not hearsay when it is offered against
the party. OEC 801(4)(b)(D). The rules of evidence recognize
an "agency exception" only for statements that a party's
agent makes and then only when the statement is introduced
against the party. The victim is not a party in this case, and
her statements were not introduced against her. We may not
expand the specific exception for statements that a party's
agent makes to include statements that anyone's agent
makes. See US West Communications v. City of Eugene, 336
Or 181, 188, 81 P3d 702 (2003) (explaining that courts may
not rewrite statutes to insert what the legislature has
omitted).

The victim's statements that defendant had abused
her would have been admissible under OEC 803(18a)(b) if
she had made them to the detective and he had been able to
testify to them without Perez's intervention. That did not
happen, however. Instead, the victim told Perez what hap-
pened, and Perez told the detective. Perez's statements to the
detective added another layer of hearsay but not the kind of

out-of-court statement may be trustworthy does not mean that it is not hearsay.
Rather, the premise of most hearsay exceptions is that a category of statements,
although hearsay, is sufficiently trustworthy to be admissible without the ability to
cross-examine the declarant.

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hearsay that is admissible under OEC 803(18a)(b). Accord-
ingly, the detective's testimony was admissible only if Perez's
out-of-court statements came within some other exception to
the rule against hearsay.

On that issue, the state relies on only one hearsay
exception. It argues that the Court of Appeals correctly held
that the statements were admissible under the residual
exception in OEC 803(28), which provides:

"The following are not excluded by [the rule against hear-
say], even though the declarant is available as a witness:

"(28)(a) A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstan-
tial guarantees of trustworthiness, if the court determines
that:

"(A) The statement is relevant;

"(B) The statement is more probative on the point for
which it is offered than any other evidence that the propo-
nent can procure through reasonable efforts; and

"(C) The general purposes of the Oregon Evidence
Code and the interests of justice will best be served by
admission of the statement into evidence.

"(b) A statement may not be admitted under this sub-
section unless the proponent of it makes known to the
adverse party the intention to offer the statement and the
particulars of it, including the name and address of the
declarant, sufficiently in advance of the trial or hearing, or
as soon as practicable after it becomes apparent that such
statement is probative of the issues at hand, to provide the
adverse party with a fair opportunity to prepare to meet it."

OEC 803(28) directs trial courts to determine in the
first instance whether (1) the statement has equivalent cir-
cumstantial guarantees of trustworthiness as other hearsay
exceptions; (2) the statement is relevant; (3) the statement is
more probative than any other evidence that is reasonably
available; and (4) the general purposes of the evidence code
and the interests of justice would be served. Although rele-
vance presents a legal issue, the determination whether

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other evidence is reasonably available and whether the state-
ment contains circumstantial guarantees of trustworthiness
may require factual inquiries, as discussed below. And the
determination whether admitting the evidence in a particu-
lar case would best serve the ends of justice is the sort of dis-
cretionary decision that customarily has been entrusted to
trial courts in the first instance.

Given those considerations, other courts that have
considered this issue have held that the question whether
evidence should be admitted under the residual exception
ordinarily may not be raised for the first time on appeal. As
Mueller and Kirkpatrick explain,

"Because of the notice requirement, and because it is pecu-
liarly important in the case of the [residual] exceptions that
the judge consider the evidence and apply the exception in
the first instance, resort to this provision for the first time
on appeal as the basis for challenging or supporting rulings
below is inappropriate."

5 Federal Evidence § 8:140 at 272 (summarizing federal deci-
sions interpreting the federal counterpart to OEC 803(28))
(footnote omitted).

We think that admonition applies equally in this
case. The state never argued before the trial court that
Perez's repetition of the victim's statements was admissible
under OEC 803(28); as a result, defendant did not have an
opportunity to offer evidence on the various criteria that OEC
803(28) directs trial courts to determine, and the trial court
never considered whether the state's evidence satisfied those
criteria for admission. Not surprisingly, when the Court of
Appeals considered, for the first time on appeal, whether the
translated statements were admissible under OEC 803(28),
the lead and the dissenting opinions differed over the first
criterion-whether those statements had sufficient "guaran-
tees of trustworthiness." See OEC 803(28) (stating that
criterion).

The lead opinion concluded that the statements
were trustworthy based on evidence that it gleaned from var-
ious parts of the trial record. It noted that Perez explained
that he spoke Spanish "quite well," that Perez works as a

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bilingual middle- school tutor, and that the victim's trial tes-
timony was consistent with the detective's recitation of her
out-of-court, translated statements. 210 Or App at 494. The
dissenting opinions reasoned that the ability to speak a sec-
ond language is quite different from the ability to serve as an
interpreter, that there was no evidence that Perez was a
qualified interpreter, nor was there any evidence that he had
employed one of two accepted methods of interpretation. Id.
at 528-30 (Brewer, C. J., dissenting). Rather, as the dissent-
ing opinions reasoned, "[i]t is possible that [Perez] summa-
rized or paraphrased the victim's statements instead. When
asked whether he had accurately translated the conversa-
tion, Perez responded only, 'I think so. I think it's-yeah, as
far as I-as far as I know.'" Id. at 530.

We need not decide whether the lead or the dissent-
ing opinions have the better of the argument in order to
resolve this case. Because the state did not argue before the
trial court that it was relying on OEC 803(28) as the basis for
admitting the detective's statements, neither defendant nor
the state presented any evidence on the criteria set out in
that rule. Moreover, the trial court did not have an opportu-
nity to rule on the criteria that OEC 803(28) directs it to con-
sider. It follows that we are not in a position to rule as a mat-
ter of law that the detective's statements were admissible
under OEC 803(28).7 See Outdoor Media Dimensions Inc. v.
State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001)
(appellate courts may not rely on an alternate ground for
upholding a trial court's ruling when the record either is not
adequate or would have been developed differently if the
alternate ground had been raised at trial). Accordingly, we
hold that, in this procedural posture, the state may not rely
on the residual exception to uphold the trial court's ruling.

7 There are other issues regarding whether the state may rely on the residual
exception. One issue is whether, because the victim was available to testify, the
detective's recitation of the victim's out-of-court statements were "more probative
on the point for which [they were] offered [i.e., to prove that defendant sexually
assaulted the victim] than any other evidence that the proponent can procure
through reasonable efforts." See OEC 803(28)(a)(B) (stating that requirement);
Laird C. Kirkpatrick, Oregon Evidence § 803.28[3][c] at 813 (2007) (explaining that,
"[a]rguably, this rule also contains an unavailability requirement as a practical
matter, because a showing must be made that the hearsay statement is more pro-
bative on the point for [which] it is offered than any other evidence which the pro-
ponent can procure through reasonable efforts").

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The remaining question is whether erroneously
admitting the detective's testimony was harmless-i.e.,
whether there was "little likelihood that the particular error
affected the verdict." State v. Davis, 336 Or 19, 32, 77 P3d
1111 (2003) (stating standard). As the court explained in
Davis, the correct focus of that inquiry "is on the possible
influence of the error on the verdict rendered, not whether
this court, sitting as a factfinder, would regard the evidence
of guilt as substantial and compelling." Id. In determining
the possible influence of the error on the verdict, the court
has considered the nature of the erroneously admitted evi-
dence in the context of other evidence on the same issue. See
State v. Gibson, 338 Or 560, 576-77, 113 P3d 423 (2005) (pur-
suing that inquiry). It has asked whether the jury would have
regarded the evidence as duplicative, cumulative, or unhelp-
ful in its deliberations. Davis, 336 Or at 33-34.

The state identifies four bases for saying that the
detective's testimony was merely duplicative or cumulative
of other evidence in the record. First, it notes that the victim
reported the abuse to a friend, her family, and her teachers.
She told those people that defendant had touched her inap-
propriately.8 Her reports were no more specific than that,
however. She did not say where, when, or how often defen-
dant had touched her. By contrast, the victim gave the detec-
tive a detailed narrative of three incidents of sexual abuse,
which we have set out above. Those statements went far
beyond her nonspecific reports of abuse to her friend, family,
and teachers.

Second, the state notes that the victim testified to all
three incidents at trial. The victim's trial testimony, however,
is not as complete as her out-of-court statements to the detec-
tive. For example, regarding the third incident (which alleg-
edly occurred the night that defendant's wife was away and
defendant came home from work early), the victim responded
"yes" when the prosecutor asked if "anything happen[ed] that
night." When asked what happened, the victim said, "Well, I

8 Initially, the victim told her friend and family that defendant had raped her.
However, when her family explained what rape means, the victim corrected her
report and said only that defendant had touched her inappropriately.

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don't know, and I can't lie because I don't know what hap-
pened." The prosecutor reminded the victim that she had just
said that something had happened and asked her why she
had said that. The victim responded, "He touched me ---
because he touched me, but I don't know where."

The trial court took a break. When the trial resumed,
the victim returned to the stand and responded briefly to a
series of specific questions. She said that defendant sat next
to her and touched her. When asked where he touched her,
she did not answer. The prosecutor then handed her a dia-
gram of a young girl. The victim indicated on the diagram
that defendant had touched her vagina and, when asked,
said that he had touched her on top of her clothes. The vic-
tim's trial testimony can only be described as sparse and halt-
ing in comparison to her statements to the detective. We can-
not say that, in light of her testimony at trial, her statements
to the detective were merely duplicative or cumulative.9

Third, the state notes that a social worker who inter-
viewed the victim told the jury what the victim said to her
during their conversation. As the state candidly acknowl-
edges, however, the victim's statements during that inter-
view "were rather confused." Her statements go back and
forth between the second and third incidents without distin-
guishing between them. She does not appear to refer to any
touching during the first incident, although she acknowl-
edged in response to leading questions from the social worker
that defendant had exposed himself to her, presumably dur-
ing the first incident. Again, we cannot say that the victim's
statements to the detective were merely cumulative. Rather,
the victim's statements to the detective provided the most
complete, detailed narrative of the three incidents that the
jury heard.

Finally, the state called an officer who speaks
Spanish, who had interviewed defendant without the aid of

9 As noted above, defendant objected to the detective's testimony regarding his
second interview with the victim. He did not object to the detective's testimony
regarding his first interview with the victim. That interview was more sparse and
halting than the victim's trial testimony. Accordingly, it does not provide a basis for
saying that the ruling admitting the testimony to which defendant did object was
harmless.

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<!-- PageHeader="State v. Rodriguez-Castillo" -->

an interpreter, and who had videotaped the interview. When
the officer started to translate the videotape for the jury, the
trial court stopped him from doing so because, as the trial
court explained outside the presence of the jury, the officer's
Spanish was "very poor."10 The officer explained that he had
difficulty with simultaneous translation. The state accord-
ingly selected a few specific statements and asked the officer
to translate those statements. Essentially, the officer testi-
fied that defendant denied, then admitted, and then denied
that, on one occasion, he had put his hand inside the victim's
pants and touched either the top of her pubic hair or the out-
side of her vagina.

Defendant also testified. He said that he had not
touched the victim's breasts or vagina. He testified, however,
that one night, when his wife, the victim's father, and her
older brother were home, he was watching television. He said
that the victim came in, lay down beside him, took his hand
and put it on her stomach. Then, she pushed his hand down
her pants. He explained that his hand may have touched the
top of her pubic hair but that he had not touched her vagina.
Defendant testified that he tried to explain what had hap-
pened to the officer, but the officer did not speak Spanish
"very well; 50, 60 percent." Defendant testified that their dif-
ficulty communicating occurred either because of the officer's
limited Spanish or because the officer was trying to get him
to say that he had touched the victim's vagina. Additionally,
defendant called an expert, who testified that the officer's
Spanish was "poor."

Although the issue is closer, we cannot say that any
error in admitting the detective's testimony was harmless in
light of defendant's admission to the officer. The state intro-
duced evidence that permitted the jury to find that defendant
had touched the victim's vagina on two separate occasions-
once when his wife was home and once when she was away

10 The trial court explained that, based on what the court-certified interpreters
were telling it, the officer was paraphrasing what defendant had said and his
translation was "off. It's not a good translation." The court previously had ruled
that the state could not have the court interpreters translate the videotape for the
jury, and the state was unable to get a court-certified interpreter to translate the
videotape. Accordingly, it relied on the officer to translate.

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<!-- PageHeader="Cite as 345 Or 39 (2008)" -->

for the night. Because the jury convicted defendant of touch-
ing the victim's vagina on one occasion and acquitted him of
touching it on the other (and the instructions and jury verdict
forms provide no basis for determining which incident gave
rise to the conviction), there is some question whether the
jury relied on the admission that the officer recounted in find-
ing defendant guilty. But, even if we assume that the jury
found the officer's testimony more credible than defendant's
and convicted him on that basis, we cannot say that errone-
ously admitting the detective's statements had little likeli-
hood of affecting the jury's verdict; that is, we cannot say that
the erroneous introduction of the victim's detailed narrative
did not affect the jury's decision to disbelieve defendant's
trial testimony regarding his admission and to credit the offi-
cer's version of defendant's admission. Because the error was
not harmless, the Court of Appeals decision and the trial
court's judgment must be reversed, and the case remanded
for further proceedings.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.