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
The Appellate Court is now making per curiam Terry/Wibbens reversals. Apparently they take seriously the right to confrontation at probation hearings. State v Vaana. Here’s the key quote from Terry:
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.’
Does State v Logan make sense under 161.067? Section 1 explains there are “separately punishable offenses” when conduct “violates two or more statutory provisions and each provision requires proof of an element that the others do not.” The Logan court address one side of this equation, that a Computer Crime “requires proof of an element” that Attempted First-Degree Theft and Third-Degree Theft do not. The element I expect the court is referring to is “knowingly accesses[ing], attempt[ing] to access or use, or attempt[ing] to use, any computer, computer system, computer network”. The court does not address whether Attempted First-Degree Theft and Third-Degree Theft require proof of an element that Computer Crime does not? The State’s theory in Logan, 164.377(2)(c), was that the computer was used to commit Theft. Would the separate element in Attempted Theft I be that the value of ppty attempted to be taken is $1000 or more? For Third-Degree Theft, is the separate element that a completed theft need to have occurred? Under this theory though, Attempted Theft I and Third-Degree Theft shouldn’t merge either, because one crime requires an attempt to take more than $1000 and the other requires there to be a completed theft.
I assume my analysis demonstrates a clear misunderstanding of the merger statute. Please help if possible.
Brian,
I think you understand everything exactly right. I can’t say for certain what — if any errors — the COA made without looking at the exact elements in the indictment.
That said, the COA was sloppy — even if correct — in not say what element was in theft III that wasn’t in Computer Crime.
However, Attempted Theft I and Theft III may have merged even assuming each had an element the other did not, if they were deemed to be from the same statutory provision.
Thank you Ryan. Conveniently, you posted on a similar topic the same day as your response to my question, which also helped my understanding of the issue.
I believe that this case has a chance of being accepted for review. See dissent by Kistler in State v. McKinzie, 186 Or.App. 384, 63 P.3d 1214 (with Linder joining)
The black letter law that I take from Chase is:
In order for the 803(18a)(b) notice to be valid, it must list both the SUBSTANCE of the statement (although exact quotes are not necessary) and the MANNER in which the statement will be introduced at trial.
Excellent point. Thank you. I’ve amended the case review to indicate that both the statement and the manner in which it will be introduced are required.