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State v. Simon

Court of Appeals of Oregon

November 15, 2018

STATE OF OREGON, Plaintiff-Respondent,
HOWARD JAMES SIMON, Defendant-Appellant.

          Argued and submitted August 15, 2017

          Washington County Circuit Court C142065CR Donald R. Letourneau, Judge.

          Kendra M. Matthews argued the cause for appellant. Also on the briefs was Boise Matthews LLP.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

         Case Summary: Defendant appeals from a judgment of conviction on one count of unlawful sexual penetration in the first degree, ORS 164.311, and seven counts of sexual abuse in the first degree, ORS 163.427. Defendant raises two main issues on appeal. The first issue is whether OEC 803(18a)(b), the hearsay exception for statements concerning sexual abuse, extends to double hearsay, specifically when a victim makes a statement concerning abuse to one person, who reports the statement to a second person, who then relates the victim's statement at trial. The second issue is whether defendant established that, because of cognitive deficits that were diagnosed after trial, he was not competent to be sentenced or to stand trial. Held: As to the first issue, even assuming that the trial court erred by admitting double hearsay, that error was harmless. Given the context of the entire trial and the theories on which the case was tried, the challenged statement added nothing of distinctive material value to the jury's assessment of the victims' credibility, such that there is little likelihood that the challenged evidence affected the verdict. As to the second issue, the trial court applied the correct legal standard to determine whether defendant was [294 Or.App. 841] competent to be sentenced and, subsequently, whether to grant a new trial based on newly discovered evidence of defendant's cognitive deficits, and the record supports those determinations.


          [294 Or.App. 842] LINDER, S. J.

         Defendant appeals from a judgment of conviction on one count of unlawful sexual penetration in the first degree, ORS 163.411 (Class A felony), and seven counts of sexual abuse in the first degree, ORS 163.427 (Class B felony). Defendant's assignments of error frame two main issues on appeal.[1] One issue is whether OEC 803(18a)(b), the hearsay exception for statements concerning sexual abuse, extends to double hearsay-that is, a statement by a victim to one person, who reports the statement to a second person, who then relates the victim's statement at trial. The second issue is whether defendant established that, because of cognitive deficits that were diagnosed after trial, he was not competent to be sentenced or to stand trial. For the reasons we explain below, we affirm.


         We begin with a summary of the evidence at trial and the procedural events that gave rise to the issues on appeal. In our analysis of the hearsay and competency issues raised on appeal, we provide added factual and procedural details that have particular relevance to those discrete issues.

         Defendant was charged with a total of eight sexual offenses committed against three girls. Two of the girls (KLM and SAM) are twin sisters; the third (KCH) is their older cousin. Defendant is their uncle. The victims were between five and nine years old when the crimes were committed, which occurred over a period of years and involved multiple, isolated incidents of sexual touching. The victims' allegations did not come to the attention of law enforcement authorities until several years after the abuse ended. By the [294 Or.App. 843] time of trial, KCH was 24 years old; the twins were 16 years old; and defendant was 80 years old.

         Each of the three victims testified at trial and gave their first-hand accounts of defendant's sexual contacts with them. According to KCH, when she was about eight or nine years old, while defendant and his wife were babysitting her for the day, defendant took her to an upstairs bedroom, sat her on the bed, lifted her skirt, and began to rub his hand above her vagina, while asking her if what he was doing "felt good." KCH's memory of that touching was vivid. She also remembered other times when defendant touched her inappropriately, but by KCH's own account, those other memories were fainter and more indistinct.[2] The twins, KLM and SAM, testified to sexual touching by defendant that began when they were between about five and seven years old and stopped around third grade. In particular, KLM recalled times when defendant fondled her buttocks while greeting and hugging her. Both twins also described their memories of inappropriate touching by defendant when he would go swimming with them. KLM remembered how defendant would touch her vagina and her buttocks, both underneath her swimsuit and over the top of it.[3] SAM likewise remembered defendant touching her vaginal area, but only over the top of her swimsuit. Finally, SAM also remembered several other sexual contacts by defendant in his home when she and KLM were being babysat by defendant and his wife. As to those contacts, SAM remembered that once, while she was with defendant in a bedroom, defendant put lotion on her legs and touched her vaginal area with his hand. Another time, while SAM was with defendant in the living room, defendant had SAM touch his penis with her hand and move her hand while he watched a pornographic video on TV. SAM also remembered, on a different occasion when [294 Or.App. 844] she was with defendant in the living room, that defendant touched her vagina with his hand and penetrated her vagina with his finger.[4]

         The victims each described feeling traumatized and confused by defendant's sexual contacts with them, and were reluctant to tell anyone about the abuse. While still in grade school, KCH confided in a few friends and cousins, telling them that her uncle (defendant) was a bad person, and sometimes saying that he had molested her, without describing the details of the abuse. Towards the end of high school, KCH finally told her mother that defendant had abused her when she was younger, again without giving details, but her mother (defendant's sister-in-law) insisted that KCH not tell anyone. The twins both testified that they confided in each other after the abuse began, sometimes crying together at night; but they did not tell each other details. KLM's father testified that, once, after KLM came home from defendant's house upset and crying, one or both of the twins told him that that they were not comfortable around defendant because he touched them on their butts; KCH also said that defendant touched her "on the front too," which her father understood to mean between her legs. Their father got upset, told their mother (his then-wife and another of defendant's sisters-in-law), and threatened to confront defendant. But, according to the twins' father, their mother insisted that the conduct was not "that bad" and stopped him. Their mother did, however, call KCH, tell her what KLM had said, and ask KCH if defendant had done anything like that to her. KCH testified that, when she answered yes, the twins' mother told her not to talk about it.

         Although defendant's alleged abuse of KCH stopped when she was about nine years old, she testified that various things would "trigger" her memory, causing her to have [294 Or.App. 845] traumatic "flashbacks" of defendant touching her vaginal area in the upstairs bedroom. A grade-school friend, who also had briefly been KCH's boyfriend in college, testified that he witnessed KCH go through those traumatic reactions well into her college years. After college, while in graduate school, KCH began seeing a psychotherapist to deal with having been abused when she was young. During that time, KCH decided to bring defendant's abuse to the attention of authorities, which led to KCH being interviewed by a detective.[5] As part of the investigation, the detective recorded a phone call between KCH and defendant in which KCH confronted defendant about his abuse of both her and KLM; defendant denied the allegations. The detective also interviewed KLM, who had difficulty talking about the abuse, but described defendant's fondling and groping during hugs and while swimming; KLM also suggested that SAM may have been abused. The detective interviewed the twins' mother, who confirmed that one of the twins had made a limited disclosure of the abuse to their father several years before.

         The detective's investigation resulted in referring the twins for CARES interviews and physical examinations.[6] Each of the twins was individually interviewed; each interview lasted about 45 minutes and was video recorded. The videos were played in full at trial for the jury as substantive evidence. The twins' statements to the CARES interviewer about defendant's sexual contacts paralleled the substance of their testimony at trial. The videos also permitted the jury to observe the twins' demeanor during the interviews, their difficulty talking about the abuse, and how the interviews were conducted.

          [294 Or.App. 846] Numerous other witnesses also testified. The state presented several witnesses (friends, family members, and KCH's psychotherapist) who corroborated the disclosures that the victims had made over the years as well as other corroborating circumstances, such as the victims' discomfort around defendant, and, in KCH's case, the traumatic flashbacks that she experienced. Defendant's case focused on impeaching the victims' credibility by cross-examining the victims and the corroborating witnesses in an attempt to expose inconsistencies in the statements that the victims had made over time, inherent weaknesses in their accounts of events, and other circumstances that arguably undercut the victims' and the state's other witnesses' believability (such as bias due to intrafamily tensions). By way of an affirmative case, defendant presented character witnesses who testified that defendant was sexually appropriate around children; his wife, who testified that, when she and defendant babysat the victims, none of the victims was ever out of her sight or alone with defendant; and the twins' mother, who testified that the twins were lying about the abuse.[7]

         At the conclusion of the trial, the jury returned guilty verdicts on each of the eight counts. Before sentencing, defense counsel moved to have the court determine defendant's fitness to be sentenced, asserting that defendant had undergone cognitive decline that called his competency into question. At a hearing on the motion, the court was presented with the opinions of two experts who had examined defendant and agreed that he had a mild neurocognitive disorder (i.e., dementia) that caused him some degree of memory impairment. The experts reached opposite conclusions, however, on whether defendant's cognitive deficits rendered him incompetent to be sentenced. After weighing the experts' competing opinions and other relevant evidence, the trial court determined that defendant was competent for sentencing purposes. The trial court then sentenced defendant to 124-months' imprisonment and 20-years' post-prison supervision.

          [294 Or.App. 847] After sentencing, defendant moved for a new trial based on newly discovered evidence of defendant's neurocognitive disorder which, defendant asserted, had rendered him incompetent at the time of trial. At the hearing on the motion, the earlier record on defendant's competency to be sentenced was made part of the record on the motion for new trial; defendant also offered further evidence in support of his motion. At the end of the hearing, the trial court denied the motion for new trial, finding that defendant did not carry his burden to establish that he had not been competent at the time of trial. The trial court then entered judgment against defendant, and defendant brought this appeal.


         As described above, during its case-in-chief, the state called several witnesses to testify to disclosures that the victims had made about defendant's sexual contacts. Before trial, the state gave notice that it would be introducing those various hearsay statements pursuant to OEC 803(18a)(b), which allows into evidence hearsay statements "concerning an act of abuse," including acts of "sexual abuse" and "rape of a child, which includes but is not limited to rape, sodomy, unlawful sexual penetration and incest." See id. (incorporating definition of "abuse" under ORS 419B.005). With one exception, the evidence of the victim's several disclosures came in at trial without objection.

         The exception occurred during the testimony of the twins' father. He principally testified about the disclosure that, as we earlier described, one or both twins made to him when they were young, after KLM had come home from defendant's house crying and upset during the time that the abuse was on-going. Although the twins' mother stopped him from confronting defendant, their father made sure that the twins never stayed at defendant's home again after that. The twins' father explained that the disclosure that the twins had made to him when they were young was the last that he heard about defendant's touching of the twins "for a bunch of years."

         The state then asked the twins' father whether he heard anything more in the months before trial about [294 Or.App. 848] defendant's sexual touching of the twins. He answered that, "when this whole case developed," KLM called to tell him that the twins were going to talk to an investigator about what defendant had done to them years before. The prosecutor then asked, "when [KLM] told you what had happened with [defendant] did she explain to you anything that had happened to [SAM] as well?" Defense counsel objected on hearsay grounds. When the prosecutor cited OEC 803(18a) (b), the trial court commented that the statement would be "double hearsay." The prosecutor replied:

"Sure. But it doesn't matter. It's still 803(18a)(b), statements concerning an act of abuse. [KLM]'s statements are statements concerning an act of abuse. [KLM] is testifying to someone who's saying statements concerning acts of abuse. So the double hearsay is covered by 803(18a)(b)[.]"

         At that point, the trial court overruled the objection and the prosecutor asked, "what did [KLM] say that [SAM] had said about the abuse?" The twins' father answered:

"Yeah. Well, when I first got that call, you know, she said about [what defendant] did a bunch of years ago.
"And I said, 'well as far as I understand it, it was kind of like when he gives you hugs, he kind of gave you pats on the butt, you know, or maybe he pinched you or something like that,' because I never heard the details. ***.
"And I said, 'well, you know, as far as I knew, that's what happened.'
"And she goes, 'no. It was a lot worse,' you know, she goes, 'he raped [SAM],' you know.
"And I said, 'well, what do you mean raped,' you know.
"And she just [said], 'well, he raped her,' and that's all she said, you know. She didn't tell me any of the details at that time."

         The twins' father explained that he "didn't clarify what to [KLM] rape means" because he "didn't want to put her through any more trauma than [he] had to."

         On appeal, defendant renews his challenge to that testimony, and the state renews its defense of its admissibility. In the course of their arguments, the parties dispute [294 Or.App. 849] several issues: (1) whether defendant adequately preserved his "double hearsay" challenge; (2) whether the challenged statement was in fact "double hearsay"; and (3) whether OEC 803(18a)(b) is limited to first level hearsay (i.e., B's testimony that A told B about abuse that A saw or experienced) or extends to any statement concerning an act of abuse, including multiple levels of hearsay (i.e., C's testimony that A told B who told C about abuse that A saw or experienced). Finally, the parties dispute whether, if admission of the challenged testimony was error, it was harmless. Because we conclude that any error in admitting the challenged statement was harmless, we do not reach the the other issues that the parties debate.

         A defendant seeking a reversal based on a claim of evidentiary error has the burden to show some likelihood that the challenged evidence affected the verdict. State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003); OEC 103(1) (evidentiary error is not presumed to be prejudicial). In assessing whether erroneously admitted or excluded evidence affected the verdict, we consider the nature of the evidence in the context of the trial as a whole. Davis, at 33-34. We therefore review all portions of the record, not just the evidence most favorable to the state. State v. Maiden, 222 Or.App. 9, 11, 191 P.3d 803, rev den, 345 Or. 618 (2008). Among other factors, we consider whether the evidence was cumulative of other evidence admitted without objection, which includes assessing any differences in the quality of the erroneously admitted or excluded evidence as compared to the other evidence on the same issue. Id. at 13-14; see also State v. Norby, 218 Or.App. 609, 620, 180 P.3d 752 (2008) (when several witnesses testify to the same effect, the erroneous admission of one witness's testimony often will be harmless; role and status of witnesses, however, must be considered). We also consider how the case was tried and the extent to which the disputed evidence was or was not emphasized by the parties and central to their theories of the case. Maiden, 222 Or.App. at 14 (discussing factors); State v. McKinzie, 186 Or.App. 384, 396, 63 P.3d 1214, rev den, 336 Or. 16 (2003) (considering extent to which proffering party relied on evidence at trial).

          [294 Or.App. 850] In this case, because there were no witnesses to defendant's sexual contacts with the victims, and because none of the victims suffered physical trauma or injury, the dispute reduced to whether the jury believed the victims. Under the parties' respective approaches to that central issue, the credibility of the older cousin, KCH, was particularly pivotal. As the state cast her, KCH was the "one person" who was "willing to lift the veil" and was "brave enough to undergo the fear, the sadness, the isolation and the pain" of stepping forward to report what defendant, her uncle, had done. With the veil lifted, the twins' allegations of abuse surfaced too. In contrast, as the defense cast her, KCH was a "steamroller" out to "bury" defendant. The twins were merely KCH's pawns: KCH had "recruited her two young cousins" to make false allegations about events that they claimed occurred so many years before that defendant could not easily respond to them.

         The trial was hard fought. The jury sat through five days of court proceedings, observed first-hand the direct testimony and extensive cross-examination of all three victims, watched nearly two hours of videotaped CARES interviews, listened twice to the 17-minute-long recorded phone call between KCH and defendant, and heard the testimony of 15 other witnesses. Other than the few sentences it took for the twins' father to relate what KLM said in her brief phone call to him about the "worse" thing that defendant did to SAM-viz., that KLM said defendant had "raped" SAM, but she did not explain what she meant by rape and her father was not willing to press her to further explain-the jury heard nothing more about that evidence.

         Instead, the prosecutor's credibility argument focused foremost on the substance of KCH's testimony and the genuineness of her emotions on the stand, together with the many things that corroborated her allegations, such as her partial disclosures to friends and relatives in grade school and high school, the traumatic flashbacks that she had endured for years, which others, including her psychotherapist, had witnessed; and her lack of a motive to fabricate her allegations. The prosecutor similarly emphasized the substance of the twins' descriptions of defendant's abuse, both from their testimony on the stand and their [294 Or.App. 851] corroborating CARES interviews; the genuineness of their difficulty talking about the abuse, both during their testimony on the stand and during the corroborating videotaped CARES interviews; their corroborating disclosures to each other when they were young; and the disclosure that one or both twins made to their father when they were about eight years old. The prosecutor did not so much as mention, let alone specially rely on, KLM's phone call to her father a few months before trial, when she was about to be interviewed by an investigator.

         Neither did the defense bring up that phone call or KLM's statement during the trial. Defense counsel focused principally on KCH, highlighting how her "story evolved with the questioning," expanding to an "indefinite number" of claimed instances of sexual abuse. Defense counsel acknowledged that he could not identify a "specific" motive for KCH's allegations, but he could say, and he urged that the jury could observe from KCH's demeanor and testimony, that she was "in fact, motivated," "clearly ha[d] an axe to grind here" and wanted defendant convicted. As for the twins, defense counsel emphasized their "troubled family life" and how "nice" it must have been for them to have an older cousin "pay attention to them," be a "support system" for them, and tell them that their emotional problems were defendant's fault. Defense counsel urged that the jury could see from the twins' testimony on the stand that they "appear[ed] to have been a little staged." For all three victims, defense counsel highlighted aspects of their testimony that, defense counsel maintained, were internally inconsistent, inconsistent with other evidence, or made their testimony inherently improbable. Defense counsel urged the jurors to rely on "what you saw from the witness stand," the "manner" in which KCH, KLM, and SAM testified, the "nature and quality" of their testimony, and the inconsistencies and contradictions in what they had said.

         As that description of the trial reveals, both the state and the defense relied on a vast array of circumstances to either bolster or detract from the victims' credibility. The fact that the victims made prior consistent disclosures was relevant to their credibility, and the challenged testimony was one such disclosure. But it was only one of many. Each [294 Or.App. 852] victim made other corroborating statements at other times. In particular, all three victims made earlier disclosures to a parent; KCH and KLM made earlier disclosures to the detective; the twins both made detailed and extensive disclosures to the CARES interviewer; and KCH made early disclosures to friends and cousins, and then later and on-going disclosures to her psychotherapist. KLM's disclosure in the telephone call to the twins' father was cumulative of the numerous other corroborating disclosures by the three victims that came into evidence without objection.[8]

         The challenged testimony had little likelihood to have affected the verdict in a second, equally important sense: It was a never-again-mentioned item of evidence in a five-day trial focused entirely on whether the jury should believe the victims' claims. Neither party brought up KLM's pretrial phone call to her father at any later point in the trial-not with the victims themselves, or in argument to the jury. See State v. Irons, 162 Or.App. 512, 526, 987 P.2d 547 (1999), rev den, 330 Or. 120 (2000) (inadmissible polygraph evidence was not prejudicial where reference was isolated and innocuous, and prosecutor did not later rely on it); see also State v. Mendoza-Sanchez, 291 Or.App. 299, 314-15, 419 P.3d 765 (2018) (assessing prejudice of erroneously admitted evidence in part based on parties' reliance and use of evidence in closing arguments). Both parties emphasized instead how the jury should assess the victims' credibility based on the substance of their in-court testimony in combination with their demeanor and manner on the stand.[9] That much, alone, gave the jury an ample basis on which to assess their credibility, despite any possible error in admitting KLM's isolated out-of-court statement to her [294 Or.App. 853] father about the "worse" thing defendant did to SAM. See State v. Hobbs, 218 Or.App. 298, 309, 179 P.3d 682, rev den, 345 Or. 175 (2008) (admission of victim's hearsay statements was harmless where statements were "cumulative of [the victim's] testimony"). In addition to the victims' in-court testimony, the other evidence admitted during the trial-e.g., the other corroborating prior disclosures, the videotaped CARES interviews, the audio recording of the 17-minute telephone call between KCH and defendant, and the various facts and circumstances related by the other 15 witnesses who testified during the trial-all was relevant to whether the jury should believe the victims' claims. In the context of this record, the challenged hearsay evidence simply had no realistic likelihood of affecting the jury's verdict where, as here, the parties did not rely on that evidence and there was a volume of other evidence from which the jury could make the credibility determination.

         Defendant does not dispute the existence of the victims' other corroborating disclosures or the volume of evidence bearing on the victims' credibility more generally. Defendant urges, however, that the challenged hearsay was particularly strong corroboration of SAM's allegations, because "it was an emotional, passionate, assertion" of serious sexual abuse, unlike the reluctantly-voiced and limited disclosures that the twins had made to each other and to their father when they were younger. To the extent that defendant, in making that argument, invites us to weigh the statements that KLM made in her telephone call to her father more heavily because of some perceived "emotional" or more forthright way in which KLM communicated with her father, that is not our role. State v. Miskell, 351 Or. 680, 699, 277 P.3d 522 (2012) (court does not weigh evidence in determining harmless error).

         It is our role, however, to assess qualitative differences in evidence admitted on the same issue. State v. Chandler, 278 Or.App. 537, 541, 377 P.3d 605, rev den, 360 Or. 568 (2016) (in assessing harmlessness, "we consider any differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue"). If defendant's point is that KLM's statement to her father was of distinctive quality, so that rational jurors would [294 Or.App. 854] more likely believe that evidence over the other corroborating disclosures that were admitted without objection, we disagree. Instead, the opposite is true. The challenged hearsay related KLM's spontaneous, cursory, and unexplored statement about SAM's abuse in a brief phone call to her father. The jury also had the evidence of SAM's video-recorded CARES interview, in which SAM had described in detail the precise conduct to which defendant subjected her. That prior disclosure not only corroborated SAM's in-court testimony, but provided the jury with a direct means of assessing SAM's credibility by observing firsthand her demeanor and the manner in which the interview was conducted.

         In urging that the challenged testimony was prejudicial, the dissent takes a different tack. The dissent characterizes KLM's statement to her father as an allegation of an uncharged crime or other bad act-i.e., the crime of rape, not a disclosure corroborating the charge of unlawful sexual penetration. 294 Or.App. at ___ - ___ (Shorr, J., dissenting). There are at least two problems with the dissent's position.[10]

         First, contrary to the dissent's assertion, in the context of this trial, it is highly unlikely the jury would have understood the challenged testimony to be an allegation of an additional, uncharged allegation of rape. All but one of defendant's contacts with the three victims involved defendant touching intimate areas of their bodies (their vaginas or buttocks) or, in one instance, causing SAM to touch defendant's penis. Those contacts resulted in charges of first-degree "sexual abuse," a Class B felony. But the final charge was significantly different and distinctive. It was a charge of a Class A felony: first-degree "unlawful sexual penetration" committed when defendant allegedly "penetrat[ed] the [294 Or.App. 855] vagina of [SAM], a person under the age of 12 years, with an object to wit: a finger." And that is what SAM, via her testimony on the stand and her statements to the CARES interviewer, consistently claimed: Defendant used his finger to penetrate her vaginally.

         The record does not reveal whether KLM resorted to the word "rape" to describe that act of abuse, or whether SAM used it first and KLM repeated it. Either way, "rape" was a natural word for them to use to describe the conduct on which the unlawful sexual penetration charge was based. As a matter of ordinary usage, rape can encompass a broad range of unlawful sexual activity, especially activity involving sexual penetration through some means.[11] Legally, that is true as well: The crime of rape often includes any sexual penetration (anal or vaginal), regardless of the means used to accomplish the act.[12] And in Oregon, "rape" of a child for purposes of the child abuse laws explicitly includes the crime of "unlawful sexual penetration." ORS 419B.005. In this case, none of the victims readily or easily could talk about what defendant had done to them, and none was comfortable [294 Or.App. 856] using graphic language.[13] Given their discomfort, resort to the word "rape" to articulate the "worse" thing that defendant did to SAM-much worse than patting the twins on their butts-was a natural and understandable (as well as legally correct) way to convey the physically invasive sexual contact that SAM suffered.

         Significantly, there is no reason to think that the jury was misled by KLM's use of the term. The twins' father testified that he did not know-and did not press KLM to explain-what she meant by "rape." After he gave that testimony, the jury watched the video-recorded CARES interviews. As part of SAM's interview, after SAM disclosed that defendant had made SAM touch his "private" (meaning defendant's penis) while he watched a pornographic video, the CARES evaluator was careful to ask her: "Did anything else happen with his private?" SAM answered: "No." The jury also observed SAM on the stand and heard her describe defendant's sexual contacts with her. SAM described only defendant's act of using his finger to touch the "inside part" of her body (i.e., her vagina). She did not claim that defendant at any time touched or penetrated her vaginally with his penis. Given the totality of the evidence, there is no reason to believe that the jury in this case would have assumed that KLM's disclosure to her father was an additional allegation of an uncharged act of rape, one that was never raised or discussed again in the trial. Instead, the jury reasonably would have understood KLM's use of the term "rape" in her brief telephone call to her father to be what it was-a natural term for a child to use for the unlawful sexual penetration act that defendant was charged with having committed.[14]

          [294 Or.App. 857] The second problem with the dissent's position is the nature of the prejudice that the dissent identifies from its view of the challenged hearsay evidence. The dissent asserts that, although the jury might have concluded that KLM's statement in the telephone call to her father was cumulative of the evidence of the charges against defendant, the jury might also have concluded that, "if defendant had 'raped' SAM, it was more likely that he had committed the charged acts of sexual abuse." 294 Or.App. at___ (Shorr, J., dissenting). In other words, the dissent's concern is that the evidence might have (but also might not have) been understood by the jury to be evidence of an uncharged crime of rape, and if so understood, the jury might have drawn a propensity inference by viewing defendant as someone likely to commit sexual crimes against children. See State v. Baughman, 361 Or. 386, 403-05, 393 P.3d 1132 (2017) (discussing nature of prejudice that often outweighs probative value of other crimes evidence).

         Again, we do not agree that the jury would have understood the challenged testimony to be a claim that defendant had committed an uncharged crime of rape. But even if the jury might have understood that to be the import of the testimony, the dissent essentially announces a per se rule that would apply in any case in which a related prior bad act or uncharged crime erroneously comes into evidence during trial. That is not the standard that we apply, however. Because prejudice is not presumed for an evidentiary error, OEC 103(1), the required showing of some likelihood that the evidence affected the verdict must be made in light of the facts and circumstances of the particular case before us.

         Here, from the evidence properly admitted during the trial, the jury could conclude that defendant committed multiple unlawful sexual crimes against three young [294 Or.App. 858] victims over the span of several years. Many of defendant's alleged sexual contacts with the victims-such as those while swimming with KLM and SAM-were repeated, but indistinguishable in time and place, acts that resulted in only a single charge. The eight charges brought against defendant, therefore, were representative of many other unlawful sexual contacts with these three victims that also came into evidence. KCH, moreover, testified without objection to several uncharged sexual contacts by defendant that had surfaced in her memory as she went through therapy. Thus, the admissible evidence in the record provided a basis for the jury to conclude, independent of the challenged hearsay statement, that defendant had a propensity to commit acts of child sexual abuse. In that sense, any propensity inference that the jury might have drawn from the challenged hearsay testimony was at most duplicative. The dissent's analysis provides no persuasive basis to conclude that the challenged evidence, if admitted erroneously, was prejudicial.

         We therefore agree with the state that, given the context of the entire trial and the theories on which the case was tried, the challenged statement was cumulative and added nothing of distinctive material value to the jury's assessment of the victims' credibility. On this record, we conclude that there was no likelihood that the challenged evidence affected the verdict on any one, let alone all eight, of the convictions that the jury returned.[15] Assuming without deciding that the challenged hearsay testimony was not admissible, its admission was harmless.


         We turn to whether the record establishes that defendant was not competent to be tried or sentenced. As we [294 Or.App. 859] described earlier, after the jury returned its guilty verdicts, but before sentencing, defense counsel moved to have the court determine defendant's competency to be sentenced. The trial court determined that defendant was competent, and then proceeded with sentencing. About one month after sentencing, defendant moved for a new trial, arguing that the evidence of defendant's cognitive deficits was newly discovered, and would have changed ...

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