State v. Lobo

In a criminal case, when a error that was not exclusionary of any new evidence occurs and would not affect the verdict, it is a harmless error and is not reversible. Additionally, OEC 803(18a)(b) does not requires the trial court to hold a pretrial conference to determine the availability of a witness where the hearsay declarant testifies and is subject to cross-examination.

Andrew Lobo (Lobo) appealed a conviction for unlawful first-degree sexual penetration and first degree sexual abuse. Lobo appealed on the basis that the trial court abused its discretion in denying a motion to reset the trial date and its denial of holding a pretrial motion to determine the victim’s availability under OEC 803(18a)(b). Before the trial, Lobo received a court order allowing the defense to test several pieces of evidence held by the prosecution with some disclosure conditions that violated attorney-client privilege. Subsequently, Lobo filed a motion to reset the trial date. The trial court ordered the prosecution turnover the evidence without conditions and denied the motion to reset the trial date. During trial, Lobo never alerted the court of any new evidence and Lobo was found guilty. Lobo argued the trial court relied on improper factors in denying the motion to reset. The Court of Appeals held that, even if there was an error, it was a harmless error and would not have affected the verdict because no new exculpatory evidence was produced. Regarding the victim’s hearsay statements, the prosecution argued the victim was available to cross-exam and, hence, were admissible. Lobo argued the court should have held a pretrial hearing to establish the victim’s availability under OEC 803(18a)(b). The Court of Appeals held that OEC 803(18a)(b) does not require the trial court to hold a pretrial conference to determine the availability of a witness where the hearsay declarant testifies and is subject to cross-examination. Affirmed.