State v. Morgan

“Although the state necessarily must prove that the person charged with committing a crime is, in fact, the person who committed the crime, that does not mean that the state is required to prove that a particular person sitting at counsel table with defense counsel is the person who is charged with a crime.” See ORS 132.540.

At trial, Defendant was convicted of sexual assault. Defendant’s niece (“S”) testified that he inappropriately touched her vagina. On appeal, Defendant raised three assignments of error: The court erred in (1) denying his motion for acquittal, (2) sustaining a hearsay objection against Defendant’s statement denying the allegation to social workers, and (3) giving the jury non-unanimous instructions. Defendant argued that his motion for acquittal should have been granted because S never identified him in the courtroom. The State argued that they introduced sufficient identification evidence that the named party committed the acts alleged because S testified that “Uncle Daniel” twice touched her vagina. As a general rule, the State does not need to identify the person seated at Defendant’s table unless Defendant is charged under a fabricated name. See ORS 132.540. Here, the Court found that the identification was sufficient because S’s testimony identified the named party as the perpetrator. Next, the Court found that Defendant’s initial response to the accusation was not within any hearsay exclusion where it did not cure any implied charge by the State. Finally, the Court found that the trial court’s non-unanimous jury instruction was erroneous but not sufficient to justify reversal because the court did not poll the jury. Affirmed.