Stave v. Bailey

When a victim satisfies the first condition under OEC 803(18a)(b) – testifying and being subject to cross-examination – whether she was “unavailable” is irrelevant to admissibility of her out-of-court statements.

Defendant appealed his conviction of three counts of first-degree unlawful sexual penetration, and six counts of first-degree sexual abuse. At trial, the five-year-old victim testified and was cross-examined, but could not remember any of those penetrations or contacts except for one. Defendant contends that because of the victim’s inability to remember, the trial court was required to determine whether the victim was unavailable as a witness. The trial court did not make such a determination. On appeal, Defendant argued that the trial court erred when it failed to examine the witness and determine whether she was unavailable. The Court found that Defendant had not moved for a pretrial determination of availability. The Court held that when a victim satisfies the first condition under OEC 803(18a)(b) – testifying and being subject to cross-examination – whether she was “unavailable” is irrelevant to the admissibility of out-of-court statements if the witness testifies and is subject to cross examination. Affirmed.