State v. Fuller

                                   527

Submitted April 2, 2020; supplemental judgment reversed, otherwise affirmed
                              January 13, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 TERRY JOSEPH FULLER,
                    Defendant-Appellant.
               Washington County Circuit Court
                    17CR61292; A167791
                               

  Oscar Garcia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
  PER CURIAM
  Supplemental judgment reversed; otherwise affirmed.
528                                           State v. Fuller

        PER CURIAM
         On appeal, defendant challenges judgments entered
after he was convicted of three counts of first-degree sodomy,
ORS 163.405, and one count of luring a minor, ORS 167.057.
Defendant makes three assignments of error: (1) the trial
court erred in overruling defendant’s pretrial objection to
double hearsay not covered by OEC 803(18a)(b); (2) the court
plainly erred in instructing the jury that it could return
nonunanimous verdicts; and (3) the court erred in awarding
$1,678 in restitution to CARES NW.
         Defendant first argues that the trial court erred
in overruling defendant’s pretrial objection to Officer
Schwartz’s testimony about what another child, D, told
him that the victim had told her about defendant’s abuse.
Invoking the analysis of the dissenting opinion in State v.
Simon, 

, 

 (2018), rev den, 

 (2019), defendant contends that the testimony was
hearsay not made admissible by the exception in OEC
803(18a)(b) because Schwartz was not testifying to a statement of abuse told directly to him. See Simon, 

 (Shorr, J., dissenting) (concluding that OEC 803
(18a)(b) does not permit a witness to testify to another person’s hearsay statements about a third person’s statements
regarding abuse and rejecting the majority’s conclusion that
any error was harmless, obviating the need to reach the
issue). Defendant further contends that any error was not
harmless.
         The state responds that the hearsay exception covers Schwartz’s testimony and that the reasoning in the
Simon dissenting opinion is incorrect. Further, the state
argues that any error is harmless largely because D testified directly to the same information. Similar to the majority in Simon, we agree with the state that any possible error
in this case is harmless because the erroneously admitted
testimony was cumulative and not qualitatively different
than other admitted evidence. See 

 (concluding
evidentiary error was harmless when erroneously admitted
evidence was cumulative of other evidence admitted without
objection).
Cite as 

 (2021)                            529

         Defendant next argues that the trial court committed structural error when it instructed the jury that it could
return nonunanimous verdicts and that that alleged structural error requires reversal notwithstanding the fact that
the jury’s verdicts were unanimous. That argument fails
under State v. Flores Ramos, 

, 

 (2020) (holding that error in instructing the jury that it
could return nonunanimous guilty verdicts did not require
reversal of convictions rendered by unanimous guilty verdicts), and State v. Kincheloe, 

, 

(2020) (same).
         Finally, the state concedes, and we agree and accept
the concession, that the trial court erred in awarding restitution to CARES NW because it was not a victim entitled
to restitution under ORS 137.103. State v. White, 

, 

, rev den, 

 (2019)
(concluding that CARES NW was not entitled to restitution because it did not suffer economic damages under ORS
137.103).
        Supplemental judgment reversed; otherwise affirmed.