This Appellate Week
Child Sex Cases – 803 (18a)(b) hearsay notice
The state gave defendant inadequate notice of it’s intent to offer hearsay statements of the alleged victim in a child sex case when it merely submitted the following standardized form rather than identifying specific statements:
2. [T]he foregoing and subsequent reports contain particulars of statements made by [the victim] that the State intends to offer[.]
OEC 803(18a)(b) requires that the state give notice of the particulars of the statements. This means they must identify the particular statements they intend to offer and the manner in which the statements will be introduced. It is not enough to provide with discovery a general statement of intent to offer any or all of the hearsay statements within. Moreover, “clearly, in this case, there was prejudice.” The victim testified reluctantly and poorly but the hearsay statements made to CARES were detailed and clear. The statements obviously affected the verdict. Reversed and remanded. State v Chase Congrats to Washington County attorney Dean Smith for doggedly preserving this issue and to Meredith Allen for the winning appeal.
Theft – Aiding and Abetting “after the fact”
Defendant did not aid and abet a theft when he assisted in destroying stolen property. A person cannot be held liable for aiding and abetting a crime based solely on conduct that occurs after the completion of the crime. Of course, it’s possible defendant could have been convicted of theft by receiving, but he wasn’t charged with that. State v Wilson.
Theft – Merger
Attempted Theft I by Receiving and Theft III merge into a single crime. However, Computer Crime, ORS 164.377(2)(c), does not merge with theft because it has a separate element of using a computer to commit theft. State v Logan
Probation Hearing – Confrontation
Although a probationer is afforded fewer procedural safeguards than a defendant in a criminal trial, some due process protections attach to probation violation proceedings. . . Those protections include ‘the right to confront and cross-examine adverse witnesses,’ unless the government shows good cause for not producing the witnesses. Morrissey, 408 US at 489. That right, at its core, requires that a probationer ‘receive a fair and meaningful opportunity to refute or impeach the evidence against him in order to ‘assure that the finding of a [probation] violation will be based on verified facts.’