State v. Kelly
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Thomas Michael KELLY, Defendant–Appellant. |
| Citation | 368 P.3d 47,276 Or.App. 507 |
| Docket Number | A153902.,061238 |
| Court | Oregon Court of Appeals |
| Decision Date | 18 February 2016 |
Raymond S. Tindell, Portland, argued the cause and filed the brief for appellant.
Pamela J. Walsh, Assistant Attorney General argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and WOLLHEIM, Senior Judge.
Following a reversal and remand for a new trial, State v. Kelly, 244 Or.App. 105, 260 P.3d 551 (2011),1 defendant was convicted by a jury of 12 counts each of first-degree sexual abuse and first-degree sodomy against a child victim. On appeal, he assigns error to, among other things, the trial court's admission, pursuant to OEC 803(18a)(b), of certain hearsay statements of the victim. He contends that the state, as the proponent of those hearsay statements, failed to comply with OEC 803(18a)(b)'s requirement that the proponent "make[ ] known to the adverse party the proponent's intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown." Although defendant acknowledges that the state provided him with notice of its intent to offer the victim's hearsay statements before the first trial, he contends that the state was required to provide him with a new notice, or a new copy of the original notice, before his trial on remand and that its failure to do so required exclusion of the victim's hearsay statements. For the reasons that follow, we conclude that the state satisfied the rule's requirement that it provide defendant with notice of its intent to offer the victim's hearsay statements more than 15 days before trial and, accordingly, affirm.
In 2006, defendant was charged with 21 counts of first-degree sodomy and 21 counts of first-degree sexual abuse against the victim. On May 4, 2007—more than one year before the start of defendant's first trial—the state filed in the case a "Notice of Intent to Offer Evidence of [The Victim's] Hearsay Pursuant to OEC 803(18a) and OEC 803(24)." The May 2007 notice, which was also provided to defendant, states:
Those hearsay statements were admitted at trial, and defendant was convicted by a jury of 12 counts of first-degree sodomy and 12 counts of first-degree sexual abuse. On appeal, we reversed defendant's convictions on evidentiary grounds not currently at issue. See Kelly, 244 Or.App. at 109–12, 260 P.3d 551. Following that reversal, the case was set for a new trial. After several continuances, defendant's retrial started on February 12, 2013. Before that retrial, the state did not refile a notice of its intent to introduce the victim's hearsay statements at trial, or otherwise transmit a new copy of the May 2007 notice to defendant. Immediately after the parties' opening statements, defendant called the trial court's attention to the fact that the state had not provided notice pursuant to OEC 803(18a)(b) to offer any out-of-court statements by the victim. Defendant did not dispute that the May 2007 notice adequately communicated what statements the state intended to introduce; and, defendant conceded that the state had provided the requisite notice in May 20072 and that he had a copy of that notice. Defendant nonetheless argued that, under OEC 803(18a)(b), the state was obligated to provide a second copy of the May 2007 notice, or new notice, to defendant more than 15 days in advance of defendant's new trial on remand, and argued further that the court was required to exclude any out-of-court statements by the victim as a result of the state's noncompliance with that rule.
The state opposed defendant's motion, arguing that, because it had provided timely and sufficient notice of its intent to introduce the victim's hearsay statements when it provided the written notice in May 2007, that notice was "part of the case" and there was "no requirement" to provide new notice on retrial. The state further contended that there was no "prejudice whatsoever" to defendant.
The trial court agreed with the state that "the case history is part of the case" and denied defendant's motion. Hearsay statements from the victim were introduced during the retrial, the case was submitted to the jury, and defendant was again convicted of 12 counts of sodomy in the first degree and 12 counts of sexual abuse in the first degree. Defendant now appeals.
On appeal, defendant assigns error to (1) the trial court's denial of his motion for a change of venue; (2) the trial court's denial of his motion for a judgment of acquittal; and (3) the trial court's imposition of consecutive sentences. We reject those assignments of error without written discussion.
In addition, defendant assigns error to the trial court's denial of his motion to exclude the victim's out-of-court statements, based on his theory that the state was required to provide him with a new notice, or a copy of the May 2007 notice, that it intended to introduce the victim's hearsay statements at defendant's retrial. Defendant contends that the remedy for the state's failure to provide new notice of intent to offer those statements at defendant's retrial was to exclude them from evidence. The state responds, as it did below, that its May 2007 notice satisfied its obligation to provide notice under OEC 803(18a)(b).
The issue on appeal is whether the state's May 2007 notice satisfied the requirements of OEC 803(18a)(b), so as to permit the state to introduce the victim's hearsay statements at defendant's retrial. We review a trial court's interpretation of the requirements of OEC 803(18a)(b), State v. Lamb, 161 Or.App. 66, 69, 983 P.2d 1058 (1999), as well as its determination that the proponent's notice complied with the rule, State v. Edblom, 257 Or.App. 22, 28, 303 P.3d 1001 (2013), for legal error.
OEC 803(18a)(b) provides:
"No statement may be admitted under this paragraph unless the proponent of the statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown."
Therefore, the question for us is whether the state "ma[de] known to the adverse party" its intention to offer the victim's hearsay statements more than 15 days prior to trial, so as to permit those statements to be introduced at defendant's trial.
We conclude that it did. The state's notice obligation, under the terms of that rule, was "to make[ ] known to the adverse party the proponent's intention to offer the statement and the particulars...
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