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State v. Hernandez-Fabian

Court of Appeals of Oregon

July 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERTO HERNANDEZ-FABIAN, Defendant-Appellant

Argued and Submitted February 22, 2013.

Washington County Circuit Court C100923CR. Marco Hernandez, Judge.

Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. On the opening brief were Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services. With her on the reply brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 676

[264 Or.App. 27] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427. He assigns error to the trial court's admission under OEC 803(18a)(b) of hearsay statements about the abuse, arguing that the state failed to provide adequate notice of its intention to offer the statements at trial. For the reasons that follow, we reverse defendant's convictions and remand for a new trial.

Because the jury convicted defendant, we state the facts in the light most favorable to the state. State v. Villanueva-Villanueva, 262 Or.App. 530, 531, 325 P.3d 783 (2014). However, in assessing whether the admission

Page 677

of hearsay evidence was error and, if so, whether the error was harmless, we review all pertinent portions of the record. See State v. Eckert, 220 Or.App. 274, 276, 185 P.3d 564, rev den, 345 Ore. 175, 190 P.3d 1237 (2008).

Defendant met the victim, S, a thirteen-year-old girl, through his brother, who was dating S's older sister. After attending a family birthday party, defendant and S were riding in a van driven by defendant's brother's girlfriend. The group stopped at a fast-food restaurant, and defendant's brother and the brother's girlfriend went into the restaurant. Defendant, S, and two younger children remained in the van. Defendant, who is 27 years old, climbed into the back seat of the van, where S was sitting, and twice touched S on her breast, once with his hand and once by kissing her.

Approximately one month later, S disclosed the touching to her sisters and mother. The family contacted the Washington County Sheriff's Office, which referred S to CARES Northwest, a child-abuse-assessment center. In addition, and at the behest of the Washington County Sheriff's Office, S made a recorded, pretext phone call to defendant asking him if he remembered touching and kissing her and why he had done that.

Thereafter, two deputy sheriffs interviewed defendant, who admitted touching S, albeit playfully, when the group stopped at the restaurant to get food. Defendant explained that he had been sitting in front of S during the van ride, and S, as well as another child, were playfully [264 Or.App. 28] kicking the back of defendant's seat and tickling him ...


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