State v. Cain

When a business record is maintained in the ordinary course of business, and there is a duty to report, the document qualifies as admissible hearsay under OEC 803(6). Additionally, it is a plain error to impose post-judgment interest on restitution awarded for non-economic damages.

Defendant appealed from convictions of five counts of first-degree theft under ORS 164.055, for fraudulently obtaining employee benefits, assigning error to (1) the trial court’s admission of an exhibit (“exhibit one”) over his hearsay objection, and (2) the trial court’s order that Defendant pay the Oregon Employment Department $26,004 in restitution, plus 12% interest. Defendant was found to have received more unemployment benefits than what he was entitled to because Defendant had failed to disclose gratuities he earned while working at the Hilton. At trial, Defendant argued that exhibit one qualified as double hearsay. The exhibit included a chart showing earnings Defendant disclosed to the Department, Defendant's earnings as reported by Hilton, and the difference between the benefits Defendant received and should have received. Exhibit one was admitted as a business record under OEC 803(6), as well as under OEC 1006 as a summary of underlying business record. On appeal, Defendant renewed his objection that the statements made by Hilton are hearsay because he was not an employee, nor did he maintain a business record with the Hilton. The Court held that exhibit one was admissible because Hilton made these records in the ordinary course of business, pursuant to a duty to report the earnings to the Department, qualifying it as admissible hearsay. Second, Defendant asserted an unpreserved argument that the 12% interest charged was a plain error by the trial court. The Court found that the trial court plainly erred because the post-judgment interest was not economic damages, as required by ORS 31.710(2)(a), and could not be imposed as restitution. Remanded for resentencing; otherwise Affirmed.