State v. Postlethwait

“OEC 803(25), [] authorizes the admission of certain documents containing out-of-court statements, while providing that ‘the defendant may subpoena’ the declarant at no cost. That language impermissibly shifted the responsibility to secure the declarant’s attendance at trial to defendant, which is directly at odds with defendant’s right to confront her accusers and to ‘meet the witnesses face to face.’ Or Const, Art I, § 11.”

Defendant appealed their conviction for delivery of methamphetamine (Count 1) and possession of a weapon in a public building (Count 3). Defendant argued the State had insufficient evidence to prove intent because the State failed to show she had taken a substantial step toward committing the crime of delivery. Additionally, defendant challenged the trial court’s decision to admit a report that indicated the handgun was test-fired and operable. “OEC 803(25) [] authorizes the admission of certain documents containing out-of-court statements, while providing that ‘the defendant may subpoena’ the declarant at no cost. That language impermissibly shifted the responsibility to secure the declarant’s attendance at trial to defendant, which is directly at odds with defendant’s right to confront her accusers and to ‘meet the witnesses face to face.’ Or Const, Art I, § 11.” The Court found the evidence that defendant possessed (157 grams of methamphetamine divided into smaller bags, a scale, and a handgun) was adequate to establish intent. The Court reasoned that the trial court erred when it admitted the report about the handgun's operability because the State did not produce the declarants for cross-examination or establish their unavailability, thereby violating the defendant’s confrontation rights. The Court held that this error was not harmless. Count 1 reversed and remanded for resentencing and Count 3 reversed.