Oregon Appellate Court - August 21, 2013
by: Abassos • August 21, 2013 • no comments
803(18)(a)(b) Child Abuse Hearsay Exception - Sufficiency of Notice
Where an 803(18)(a)(b) notice refers to the date and place of the statement as well as particular pages of discovery where it can be found, the required notice is likely sufficient. 803(18)(a)(b) creates a hearsay exception for a child's statements regarding abuse. The rule requires that the state give notice of the "substance of the statement sought to be introduced." It is not enough to simply refer to the discovery as a whole. However, the notice is also not required to set out the statements verbatim. Here, the notice looked like this: "d. Statement(s) made on November 18th, 2008 to Detective Andler after the November 18th, 2008 CARES interview referenced(among other potential places) on discovery page 5b." Such a notice makes the particular statement sought to be introduced "readily identifiable". State v Riley, ___ Or App ___ (2013)
Endangering the Welfare of a Minor - Possession of Drugs in the Presence of a Minor May Be Enough
"Unlawful activity" in ORS 163.575(1)(b), Endangering the Welfare of a Minor, includes the continued possession of drugs. Here, defendant had heroin in her purse while she was sitting in a car with her two kids. Because she was continuing to maintain possession while in the presence of children, there was sufficient evidence to support a conviction for Endangering. State v Gonzalez-Valenzuela, ___ Or App ___ (2013).
PCR - Failure to Object to Vouching
"We begin and end with petitioner's assertion that trial counsel rendered inadequate assistance by failing to protect petitioner from testimony and argument that improperly vouched for [the complainants'] credibility. We have little difficulty concluding that trial counsel failed to exercise reasonable professional skill and judgment, given the Supreme Court's emphatic condemnation of allowing one witness to vouch for another." Here, 5 different state's witnesses testified that they found the complainants to be credible and the state made it a core part of their argument. Failure to object to such vouching, as well as the failure to object to the state's use of vouching in closing, is unconstitutionally deficient lawyering. Berg v Nooth, ___ Or App ___ (2013)
Criminal Trespass - A Tenant Can Override a Landlord's Exclusion
A person does not commit criminal trespass where a lawful tenant invites the person onto the property. Even if the landlord of the property previously excluded the person. Per curiam - AG concedes error. State v King, ___ Or App ___ (2013)
