State v. Navaie

A trial court may rely on circumstantial evidence when determining whether evidence is hearsay or not hearsay (statement of party opponent) in an OEC 104(1) hearing. Proponents of disputed evidence does not need to show that the testifying witness personally witnessed the party making the statement.

Defendant appeals a conviction of first-degree encouraging child sexual abuse and 8 counts of second-degree encouraging child sexual abuse. Defendant argues that the trial court erred when it admitted evidence over Defendant’s hearsay objection. Defendant was arrested after her husband admitted to having child pornography on their home computer; Defendant claimed that she had downloaded it all. Police found several folders on the computer with child pornography; several pictures were found in a folder labeled “Matt” and one was found in a folder labeled “Piper’s stuff.” Piper is Defendant’s nickname. Defendant objected to the presentation of such evidence as hearsay; the State argued that the naming of the file folder was a statement of a party opponent. The Court held that while the trial court needed to decide if Defendant actually labeled the folder (by preponderance of the evidence), they may rely on circumstantial evidence to make that decision, including Defendant’s statements that she downloaded the pictures. The state was not required to show that the witness offering such evidence personally observed Defendant labeling the folder. The Court held that because there was enough evidence that Defendant labeled the folder, that evidence was not hearsay and could be admitted. The Court did not make any decision as to whether labeling the folder was itself a “statement.” The case was remanded for new trial on different grounds. Reversed and remanded for new trial.