State v. Belden

“Reliance by the state on out-of-court statements in lieu of live testimony is only permitted when offered out of necessity, that is, after the state has ‘exhausted all reasonably available means of producing the witness.’ The state bears the burden to establish unavailability of the witness.” State v. Nielsen, 316 Or 611, 623, 853, P2d 256 (1993); State v. Harris, 362 Or 55, 65, 404 P3d 926 (2017).

Defendant appealed from a conviction of fourth-degree assault (ORS 163.160) constituting domestic violence (ORS 132.586). Defendant assigned error to the trial court’s admission of the victim’s hearsay statements by the passerby, arguing that the admission of the statements violated his constitutional right to confront the witness. On appeal, defendant argued that the court wrongly determined that that state exhausted all reasonable efforts to produce the victim-witness for trial. “Reliance by the state on out-of-court statements in lieu of live testimony is only permitted when offered out of necessity, that is, after the state has ‘exhausted all reasonably available means of producing the witness.’ The state bears the burden to establish unavailability of the witness.” State v. Nielsen, 316 Or 611, 623, 853, P2d 256 (1993); State v. Harris, 362 Or 55, 65, 404 P3d 926 (2017). The Court examined the witness’s evasiveness and the state’s efforts to secure the witness in comparison to the situations in Anderson, Starr, and Simmons. See State v. Anderson, 42 Or App 29, 33, 599 P2d 1225, rev den, 288 Or 1 (1979), cert den, 446 Us 920 (1980); State v. Starr, 269 Or App 97, 344 P3d 100 (2015), rev den, 357 Or 415 (2015); State v. Simmons, 241 Or App 439, 250, P3d 431 (2011). The record reflected that the state made multiple attempts (some successful) to get in contact with the witness prior to trial. The state even “continued to attempt contact even after [the witness] repeatedly said that she did not want to testify. Or speak with them, and after she twice attempted to evade service of the subpoena.” These efforts satisfied the burden by the state to make reasonable efforts in good faith to produce the witness for trial. The court did not err when it admitted the witness’s hearsay testimony.

Affirmed.