State v. Chase

• Decision Date: 02 February 2011
• Docket Number: C080088CR; A140643.
• Citation: 240 Or.App. 541,248 P.3d 432
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Lawrence David CHASE, Defendant–Appellant.
• Court: Oregon Court of Appeals

240 Or.App. 541

248 P.3d 432

STATE of Oregon, Plaintiff–Respondent,

v.Lawrence David CHASE, Defendant–Appellant.

C080088CR; A140643.

Court of Appeals of Oregon.

Submitted May 28, 2010.Decided Feb. 2, 2011.

Peter Gartlan, Chief Defender, and Meredith Allen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.SERCOMBE, J.

Defendant appeals his convictions after a jury trial of five counts of first-degree sexual abuse and one count of attempted sodomy in the first degree, contending that the trial court erred in admitting hearsay statements concerning the victim's statements of abuse, OEC 803(18a)(b), and a hearsay statement that the victim was fearful of intruders, which was offered to show the victim's state of mind. OEC 803(3). We conclude that the trial court erred in admitting the hearsay statements of abuse and, therefore, reverse.

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. King, 307 Or. 332, 768 P.2d 391 (1989). In July 2000, defendant moved in with his sister, Jacquelyn Chase, in Aloha, Oregon, while recovering from surgery. Chase's grandson, the victim, was six years old at the time and was a frequent visitor. The victim spent unsupervised time with defendant.

Defendant put his hand on the victim's penis at least four times during the months that defendant lived with Chase in Aloha. In October 2000, Chase moved to Richland, Oregon, and defendant lived in a trailer on the property. The victim visited Chase during the summer and on school breaks and continued to spend unsupervised time with defendant. There is evidence that defendant engaged in abusive behavior on at least two occasions in Richland.

The victim visited Chase in the summer of 2007. The night before he returned home, the victim and Chase discussed defendant, and the victim told Chase that defendant is a “pervert” and that he was tired of telling defendant that he was not gay. Chase pursued the matter and the next day the victim told her that defendant had molested him. Chase advised the victim to report the abuse to his parents.

The victim subsequently told his mother and an aunt that defendant had touched him inappropriately. The victim's mother contacted police, and the victim received a CARES evaluation.¹ In a forensic interview, the victim was reluctant to answer questions; however, he ultimately told the interviewer that he had been molested by defendant and that the molesting had begun when defendant was living with Chase in Aloha. He said that defendant touched him on his private area. He also said that defendant had told the victim to put his mouth on defendant's private area. The interviewer considered the victim's testimony “highly concerning” for sexual abuse.

Before trial, the state provided defendant with approximately 53 pages of discovery, including the transcript of the CARES interviews of the victim and statements made by the victim to his mother, Chase, and an aunt concerning the abuse. Some of the statements made to the CARES interviewer were duplicative of statements that the victim had made to family members, but provided greater detail.

Statements made by a person concerning an act of abuse are admissible hearsay, if adequate notice of the intention to offer the statements is provided pursuant to OEC 803(18a)(b).² The state notified defendant of its intent to offer the statements:

“2. [T]he foregoing and subsequent reports contain particulars of statements made by [the victim] that the State intends to offer[.]” The state sought to present the victim's out-of-court statements through the testimony of Chase, the victim's mother, the victim's aunt, and a forensic interviewer for CARES. In a motion in limine, defendant moved to exclude the hearsay statements for the reason that the state had not satisfied the notice requirement of OEC 803(18a)(b), because the notice had merely referred to the discovery and had not identified particular statements.

The court asked the prosecutor to identify the statements that she sought to have admitted, and she responded:

“There were only 53 pages of discovery total submitted to the defense. My point is to highlight that this is not a particularly large or voluminous case[.]

“ * * * I'm speaking of statements made by [the victim] at CARES Northwest contained in defense discovery pages 23 through 38, and I'm also referring to statements made by [the victim] to his grandmother * * * Chase, his mother * * * [and his aunt].”

The prosecutor noted that the victim's statements to Chase, his mother, and his aunt were contained in discovery at pages 7 through 11. Defendant asserted that the state's notice was inadequate, because the rule requires that the notice identify the particulars of the statements—the state must “not simply rely on [the defense] to sort through 53 pages * * * to determine what statements in particular the state is wanting to enter.”

The trial court denied the motion, explaining that OEC 803(18a)(b) did not require that the state provide an exact quote or paraphrase of the statements; rather notice was sufficient if it stated to whom the statement was given and from whom the statement would come. In the trial court's view, the state's notice was sufficient. The court explained:

“I think if the [legislature] and case law that surrounds this wanted it to be the exact quoted or paraphrased statements, they would have said that, but I think the particulars of the statements include basically a broader parameter, which is I think what has been satisfied. I'm not even sure * * * that the state's obligated to do that, other than just turnover the discovery, but I think the particulars of the statements being—who would the statement * * * come through as a witness, who the statement was given to, I think that that's sufficient.”

At trial, the state introduced a DVD of the CARES interview of the victim and the testimony of the victim, his mother, aunt, and grandmother.

On appeal, defendant continues to assert that the state's notice was inadequate, because it did not provide the particulars of the statements to be offered. In response, the state admits that the notice did not specifically list each and every statement that the...