State v. Joseph

OEC 803(18a)(b) provides, in part, that: “A statement made by a person concerning an act of abuse as defined in ORS 107.705 or 419B.005, is not excluded by ORS 40.455 if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made.”

Defendant appealed the trial court’s sentence of 25 years in prison. In 2018, defendant filed a pretrial motion to exclude evidence of statements made by victims concerning defendant’s mistreatment of family pets and physical abuse of two other children. Prosecution sent defendant a discovery letter that indicated the state’s intent to rely on these statements. Defendant assigned error to the trial court’s determination that the statements were admissible. The issue on appeal is the notice requirement in OEC 803(18a)(b), which provides: “No statement may be admitted under this paragraph unless the proponent of the statement makes 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, except for good cause shown.”  Because the hearsay notices filed on January 31 were untimely, the state argued that the discovery letter dated January 10^th was sufficient to serve as the notice of intent to offer the statements at trial, as required by OEC 803(18a)(b). The Court found that the trial court erred when it ruled that the January 10 discovery letter was sufficient to satisfy the requirements. Because “the letter itself identified no substantive statements, no dates, no names of particular witnesses, or any other limiting information,” it failed to provide the defense with the “particulars” of what the state intended to offer at trial.  After determining that the letter was insufficient, the Court then concluded that admission of the statements was not harmless. Counts 1 through 7, 10, 12, 15, 16, and 19 through 21 reversed and remanded; otherwise affirmed.