State v. Kelly

Notice that the State planned to introduce hearsay evidence under OEC 803(18a)(b), given prior to first trial, was held to be sufficient, despite lack of renewed notice at retrial.

Appeal followed retrial after Court of Appeals reversed defendant’s conviction. At retrial, Defendant was convicted of twelve counts of first-degree sexual abuse. Defendant appealed, arguing that the State’s notice of intent to use hearsay evidence offered by the victim was not renewed at the retrial, in violation of OEC 803(18a)(b). The Court held that the state’s notice obligation under OEC 803(18a)(b) was met. Defendant was given notice long before the case was tried that the state intended to introduce the evidence at issue. The Court held that the remand and retrial did not render that notice ineffective. The Court asserted that not all notices given at a first trial will be sufficient at a retrial, the key distinction is whether, given the circumstances, the party seeking to admit the evidence carried its burden “to make known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial.” Affirmed.