State v. Hernandez-Fabian

A defendant's awareness of statements and their substance does not compensate for the State's failure to comply with notice requirements in OEC 803(18a)(b).

Defendant appealed a judgment of conviction for two counts of first-degree sexual abuse. He assigned error to the trial court's admission of hearsay statements about the abuse, arguing that the State failed to provide adequate notice of its intention to offer the statements at trial. The State produced 91 pages of documents. Each batch of the documents was accompanied by a child abuse hearsay notice. In addition, the State filed a separate a notice 14 days before trial. On appeal Defendant argued that the State failed to identify the substance of the statement sought to be introduced and to identify the witness or the means by which the statement would be introduced. The State argued that the discovery sheets sufficiently identified the particulars of the statements. Alternatively the State argued that the statements were admissible as statements made for medical diagnosis. The Court found that the State's cover sheet failed to identify how the statements would be admitted. The Court held that given the emphasis the Jury placed on the inadmissible testimony, and that the Jury acquitted on two counts, that the erroneously admitted evidence was harmful. Reversed and remanded.