Argued and submitted on September 25, 2012.
Washington County Circuit Court C082793CR Marco Hernandez, Judge.
Ryan T. O'Connor, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Following a jury trial, defendant was convicted of one count of sodomy in the first degree, ORS 163.405, and two counts of sexual abuse in the first degree, ORS 163.427. On appeal, he raises four assignments of error, the last of which we reject without discussion. Defendant first assigns error to the trial court's admission of certain hearsay statements made by the victim, arguing that the state's notice of its intent to offer those statements was insufficient under OEC 803(18a)(b), which provides an exception to the general rule excluding hearsay, OEC 802. In his second and third assignments of error, defendant contends that the court erred in admitting a letter that defendant wrote to his wife while awaiting trial and in requiring that defendant's wife testify. The court ruled that the otherwise-applicable husband-wife privilege, OEC 505, was abrogated in this case by ORS 419B.040(1)--a statute that prohibits the use of that privilege "in any judicial proceeding resulting from a report made pursuant to ORS 419B.010 to 419B.050." As to defendant's first assignment of error, we conclude that the state's notice was sufficient under OEC 803(18a)(b) and that the court therefore did not err in admitting the hearsay statements. As to defendant's second and third assignments of error, we conclude that defendant failed to object to the admission of the letter at trial--thereby failing to preserve that issue for our review--and that any error in requiring defendant's wife to testify was harmless. Accordingly, we affirm.
Defendant was charged with multiple crimes after the victim, a nine-year-old boy, alleged that defendant had sexually assaulted him in a YMCA locker room. At the YMCA, and over the days that followed, the victim made statements concerning the alleged sexual assault to various persons, including his mother, a YMCA patron, a YMCA employee, and several police officers. Those persons testified at trial as to the victim's hearsay statements. The victim also described the alleged sexual assault in detail during a DVD-recorded interview at CARES; that DVD was played at trial.
Before trial, the state notified defendant that it intended to offer the victim's hearsay statements pursuant to OEC 803(18a)(b). Under that rule, a party may offer "statement[s] made by a person concerning an act of abuse" if, among other things, "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." (Emphasis added.) "[T]he rule's requirement that the proponent identify the particulars of the statement requires at a minimum that the state identify in its notice the substance of the statement sought to be introduced and also identify the witness or the means by which the statement would be introduced." State v. Chase, 240 Or.App. 541, 546-47, 248 P.3d 432 (2011) (emphases added).
Here, the state's notice provided that the relevant statements were contained within (1) "[a]ll previously provided discovery in this case"; (2) "[a]ll documents received by the parties pursuant to court authorized pre-trial subpoenas"; and (3) "[t]he video recording of the CARES interview." It also referred to an attached affidavit:
"The foregoing and subsequent items and documents contain the particulars of statements made by [the victim] that the State intends to offer[:]
"a. Statement(s) made orally and in the form of drawings on November 15th, 2008 while at or immediately outside of the Beaverton YMCA, referenced (among other potential places) on discovery pages[ ] 4, 5, 11, 12, 16, 17, and 34;
"b. Statement(s) made on November 15th-16th, 2008 at Legacy Emanuel Hospital referenced (among other potential places) in Legacy Emanuel Hospital records previously subpoenaed to court and on discovery page 18;
"c. Statements made on November 18th, 2008 at the CARES Northwest program referenced (among other potential places) on discovery pages 80-91 and on the recorded (DVD) interview previously made available to the defense;
"d. Statement(s) made on November 18th, 2008 to Detective Andler after the November 18th, 2008 CARES interview referenced (among other potential places) on discovery page 5b."
Notably, the affidavit also provided that the victim was "available and expected to testify at defendant's trial."
Defendant moved to exclude the victim's hearsay statements on the ground that the state's notice did not identify the "particulars of the statement[s]" as required by OEC 803(18a)(b):
"The affidavit just outlines that there was a CARES video available to the defense. * * * And then several specific pages that the State indicated had statements on them. * * * I've copied the pages that the State refers to in their notice and it's, you know, several--it's probably 30 or 40 pages thick. And as it stands now unless we go through--the notice is insufficient it's almost like giving us discovery [and] saying, 'Well, parse through it and figure it out.' And I think that's not proper notice under [OEC] 803(18a)(b), the particulars of the statement actually have to be in the notice. It can't just be referred to somewhere else."
In response, the state argued that its notice was sufficient:
"I guess what we could do is we could photocopy the police reports and highlight them for defense counsel or we could have a secretary or have myself sit down and retype what's in the police report into the notice. But that seems to be a needlessly useless step, when we in fact have--there's nearly 300 pages of discovery here * * * we focus on particular pages and we've apprised defense counsel to look at this particular page for where the statement is contained, you will find the statement on this particular page, or you will find it on the CARES tape, or you'll find it in the CARES report. So the notice has been complied with."
The trial court concluded that the state's notice was insufficient as to statements contained within the hospital records and the CARES report (discovery pages 81-90) but sufficient as to the rest of the statements:
"All right, so the question is whether or not there is sufficient particularity. To the extent that the State has notified the defense that we are intending on offering those statements found on a particular page, that's sufficient particularity, as far as I'm concerned. I do not believe they have to identify this particular statement on this particular * * * paragraph. Given that they have identified by page number in discovery that's sufficient particularity. * * *
"Now, with the DVD I don't have a concern about that because it's not--again, it's not as though you have to sift through the DVD to find the child's statements. All of the statements on the DVD are only by the child. So I'm not really concerned about the DVD itself. Reference to the report regarding the DVD and the reference to the hospital records I don't think were of sufficient particularity for purposes of [OEC] 803(18a)(b). The state is not offering the report from the DVD examiner interviewer. So that question becomes moot.
"So the only question is what about the hospital report itself. Again, I think that you need to point to a particular statement on a particular page. You can't just say we're offering statements found within a hospital report. That isn't of sufficient particularity without knowing where that particular statement is to be located. ...