State v. Bradley, C081099CR; A142466.

• Decision Date: 07 November 2012
• Docket Number: C081099CR; A142466.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Ronald Edwin BRADLEY, II, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 277

290 P.3d 827

STATE of Oregon, Plaintiff–Respondent,

v.Ronald Edwin BRADLEY, II, Defendant–Appellant.

C081099CR; A142466.

Court of Appeals of Oregon.

Argued and Submitted March 30, 2011.

Decided Nov. 7, 2012.

Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and BREWER, Judge, and NAKAMOTO, Judge.^*

BREWER, J.

Defendant appeals a judgment of conviction for nine counts of sexual abuse in the first degree, ORS 163.427; two counts of unlawful sexual penetration in the first degree, ORS 163.411; and one count of sodomy in the first degree, ORS 163.405. The indictment alleged 15 counts of sexual offenses against two children. Defendant raises two assignments of error, first to the trial court's denial of his pretrial motion to sever the charges for each victim pursuant to ORS 132.560(3), and, second, to the denial of his motion to exclude one victim's out-of-court statements that the state offered without providing the required pretrial notice under OEC 803(18a)(b).¹ We reject defendant's first assignment of error without discussion. With respect to the second assignment of error, we conclude that the trial court erred in admitting the victim's out-of-court-statements in violation of OEC 803(18a)(b) and that the error was not harmless as to the convictions relating to that victim. Therefore, we reverse and remand for a new trial on Counts 1 through 7 (first-degree sexual abuse), and Counts 10 and 11 (first-degree unlawful sexual penetration), but otherwise affirm.

The relevant facts are as follows. The victims, C and Z, are cousins who are related to a woman with whom defendant cohabited between 1993 and 2000. Counts 1 through 11 alleged crimes against C committed between 1998 and 2000. Counts 12 through 15 alleged crimes committed against Z between 1993 and 1994. The victims' experiences with defendant came to light on the same day in September 2007. Detective Cook interviewedeach victim separately on October 19, 2007, and made a recording of the interviews.

The prosecutor notified defendant 27 days before trial that she intended to introduce out-of-court statements made by C. The prosecutor's affidavit averred:

“I, [prosecutor], Deputy District Attorney for Washington County, Oregon being first duly sworn, depose and say:

“1. That the State has provided to the defendant, copies of available reports in this case more than fifteen days before trial;

“2. That the foregoing and subsequent reports contain the particulars of statements made by [the victim] that the state intends to offer;

“3. That [the victim] is presently available and expected to testify at defendant's trial;

“4. That [the victim] is a child; and,

“5. That the above referenced statements concern an act or acts of abuse as defined in ORS 107.705 or 419B.005.”

In a pretrial hearing, defendant moved to exclude C's hearsay statements under OEC 803(18a)(b) because the prosecutor's notice had not specified which of C's statements the state intended to introduce. The state replied that the notice satisfied the standard articulated in State v. Leahy, 190 Or.App. 147, 151, 78 P.3d 132 (2003) (“The notice must convey that the proponent intends to offer the statements, and the notice must identify the particular statements that the proponent seeks to introduce.”) The trial court agreed with the state and denied defendant's motion to exclude the statements.

At trial, Detective Cook testified that C made the following out-of-court statements when he interviewed her in October 2007. When C was about nine years old, on at least four occasions, defendant touched her vagina and made her touch his penis with her hands. Defendant touched C's breast on at least three occasions. On one occasion, defendant was naked and rubbed his penis against C's vaginal area while she was wearing underwear. Defendant also inserted his fingers in C's vagina on various occasions. During the incidents, defendant told C not to say anything to her mother; C complied because she was afraid of defendant. Before her interview with Cook, C had not told anyone but her mother about the abuse.

C's testimony at trial was generally consistent with the out-of-court statements that Cook attributed to her during his testimony. C testified to the following facts. Defendant came into her room on several occasions, maybe once per week, and he touched her inappropriately on at least eight occasions. Every time defendant touched her, he penetrated her vagina with his fingers. She remembered four incidents that were particularly frightening. In one incident, defendant entered her bedroom while she was sleeping and touched her vaginal area with his hand. On another occasion, defendant asked her to go into his room and lie with him, and he made her hold his penis while he rubbed her vagina. In a third incident, defendant penetrated her vagina with his fingers while she was in the top bunk bed in her bedroom and her brother was asleep on the bottom bunk bed. In a fourth incident, defendant lay on top of C without his underwear while touching and penetrating her vagina with his fingers. C could not remember whether defendant ever touched her breast. When asked on cross-examination whether defendant had touched her breast, she said, “To my knowledge, I can't really remember if that was touched. That's—it wasn't like the scariest [part] about [it] if it did happen[.]” On redirect examination, she stated, “I feel like there was a pretty good chance that he did.” C also testified that her memory had been better when she talked to Cook; lately, she had been focused on finals and homework. C testified that she had not disclosed defendant's abuse while it was ongoing because she was frightened and embarrassed; nor had she intended to tell anyone before her mother asked her directly after learning about Z's allegations.

The jury convicted defendant of Counts 1 through 7 and 10 and 11 with respect to C, and Counts 12 through 14 with respect to Z. On appeal, defendant renews his argument that the trial court erred in admitting C's hearsay statements, because, in violation of OEC 803(18a)(b), the state provided insufficient notice of the “particulars” of those statements. Defendant notes that the state's notice merely referred him to “available reports” in discovery and “failed to furnish him with sufficient details that would allow him to identify the statement within the available reports, most significantly, by failing to identify the names of the hearsay witnesses.” The state responds that the statute does not require the notice to identify the witnesses and that the notice was sufficient for defendant to prepare and respond to the hearsay. In the state's view, defendant “knew more about the statements than he acknowledges,” and “given the simplicity of the allegations, it would have been relatively easy to determine which of [C's] statements would be introduced, and by whom.” ²

We review the adequacy of a notice under OEC 803(18a)(b) for errors of law. Leahy, 190 Or.App. at 151, 78 P.3d 132. The requirements of that rule are meant to ensure that an opposing party has a reasonable opportunity to prepare for trial in response to proffered hearsay statements made by subject declarants. State v. Iverson, 185 Or.App. 9, 14, 57 P.3d 953 (2002), rev. den.,335 Or. 655, 75 P.3d 898 (2003). A statement of intent “to offer child hearsay evidence” does not satisfy the particularity requirement of the rule where it fails to identify the particular statement being proffered. State v. Olsen, 220 Or.App. 85, 89, 185 P.3d 467 (2008). Nor does merely providing discovery of statements or furnishing a list of witnesses comply with the requirements of OEC 803(18a)(b). Leahy, 190 Or.App. at 151, 78 P.3d 132. Rather, the rule “requires at a minimum that the state identify the witness or the means by which the statement would be introduced” and “the substance of the victim's hearsay statements or how they would be offered.” State v. Chase, 240 Or.App. 541, 546–47, 248 P.3d 432 (2011).

The facts in Chase are similar to the circumstances here. In Chase, the state provided the defendant with approximately 53 pages of pretrial discovery, including the transcript of an interview of the victim conducted by CARES, a child abuse assessment center, and statements that the victim made to his mother, grandmother, and an aunt concerning the abuse. Id. at 544, 248 P.3d 432. The state provided the defendant with the following notice: “[T]he foregoing and subsequent reports contain particulars of statements made by [the victim] that the State intends to offer[.]” Id. The defendant moved to exclude the statements for failure to satisfy OEC 803(18a)(b), arguing that “the state must not rely on [the defense] to sort through 53 pages * * * to determine what statements in particular the state is wanting to enter.” Id. at 545, 248 P.3d 432. The trial court denied the motion, ruling that the notice was sufficient because it stated to whom the statement was given and from whom the statement would come. Id. We reversed, holding that the trial court had erred in admitting the challenged statements because the state had not identified the particular statements that it intended to offer in the notice. Id. at 546, 248 P.3d 432. We concluded that “simply providing discovery and notice of an intention to offer at trial hearsay statements contained in discovery is not sufficient.” Id. at 546–47, 248 P.3d 432.

As in Chase, the state's notice in this case did not identify the particular statements that the state intended to offer or how they would be offered. The notice requirement is not satisfied merely by...