State v. Lane

No. 694             December 28, 2023                  821

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  TREVOR ALAN LANE,
                   Defendant-Appellant.
              Tillamook County Circuit Court
                   19CR38657; A174588

  Mari Garric Trevino, Judge.
  Submitted October 21, 2022.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel Bennett, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
  HELLMAN, J.
  Affirmed.
822                                               State v. Lane

         HELLMAN, J.
        Defendant appeals from a judgment of conviction
entered after a jury trial for two counts of first-degree sexual abuse, ORS 163.427, and one count of luring a minor,
ORS 167.057, based on his conduct towards the victim, M.
For the reasons that follow, we affirm.
         Defendant first assigns error to the trial court’s
admission of three hearsay statements contained in a police
report. The state concedes that the court erred in admitting the statements under the recorded recollection hearsay exception in OEC 803(5) because the witness had not
reviewed the police report when it was written, nor had
she adopted the report at that time. We agree and accept
the state’s concession. See State v. Edmonds, 

, 

 (2017), rev’d on other grounds, 

, 

 (2019) (accepting the state’s concession
that the victim’s statement in a recorded transcript could
not be admitted when the testifying officer did not make
the transcript or adopt it “ ‘close in time to the interview’ ”
but instead reviewed it more than 10 years later around the
time of trial).
         Despite the error, we cannot reverse a conviction if
the asserted error is harmless; that is, if there is “little likelihood that the particular error affected the verdict[.]” State
v. Davis, 

, 

 (2003). To determine
whether an evidentiary error is harmless we “consider the
nature of the evidence in the context of the trial as a whole.”
State v. Simon, 

, 

 (2018),
rev den, 

 (2019) (citing Davis, 

).
Factors we consider in that analysis include “how the case
was tried[,]” “the extent to which the disputed evidence was
or was not emphasized by the parties and central to their
theories of the case[,]” and “whether the evidence was cumulative of other evidence admitted without objection, which
includes assessing any differences in the quality of the erroneously admitted or excluded evidence as compared to the
other evidence on the same issue.” Simon, 

.
        Here, the admitted hearsay statements all related
to defendant’s initial explanation of the reason for M’s
Nonprecedential Memo Op: 

 (2023)            823

allegations. Two of the hearsay statements were directly
cumulative of other evidence that was admitted without
objection. The third hearsay statement was of a qualitatively
similar nature. Although the state mentioned the hearsay
statements in closing argument, it was a small part of a
larger argument supported by admissible testimony that
challenged defendant’s credibility, and the hearsay statements themselves were not emphasized. We thus conclude
that the trial court’s erroneous admission of the hearsay
statements in the police report was harmless.
         In his second assignment of error, defendant argues
that the trial court erred when it allowed the admission of
a statement by the victim during a forensic interview that
she had delayed reporting other acts of abuse because she
did not want defendant to “go back to jail.” Having reviewed
the underlying record and the argument of the parties, we
conclude that the trial court did not err in admitting the evidence under OEC 404(3) to establish the victim’s motive for
delayed reporting and to establish that the victim had not
fabricated the delayed disclosures of abuse. State v. White,

, 

, adh’d to as modified on
recons, 

, 

 (2018), rev den, 

, and rev den, 

 (2019) (explaining that
evidence of other abuse may be relevant for a nonpropensity purpose when it “explains a fact of consequence—such
as the reason for a victim’s delay in reporting the charged
abuse—that informs the jury’s assessment of credibility”).
We also conclude that the record reflects that the trial court
conducted adequate OEC 403 balancing when it considered
the factors under State v. Mayfield, 

, 

 (1987). Accordingly, the trial court did not abuse its
discretion in admitting the statements made by the victim
during the forensic interview.
        Affirmed.