State v. Juarez-Hernandez

It applies only if either the declarant “testifies at the proceeding and is subject to cross-examination,” or the declarant “is unavailable as a witness” and certain criteria are met. OEC 803(18a)(b).

Defendant appealed the admission of hearsay statements by a minor who turned 18 during the trial. Defendant assigned error to the trial court’s application of OEC 803(18a)(b). Defendant argued that “hearsay statements of a ‘child declarant’ concerning acts of sexual abuse, if  “the declarant” testifies as a witness as trial,” is admitted as an out-of-court statement. In response, the State argued that OEC was correctly applied because the declarant’s age when testifying at trial is irrelevant, instead the court’s decision should turn on the age of the declarant when the statements were made. The Court examined the text of the statute. It applies only if either the declarant “testifies at the proceeding and is subject to cross-examination,” or the declarant “is unavailable as a witness” and certain criteria are met. OEC 803(18a)(b). Thus, the Court held that the lower court was correct in admitting the declarant’s testimony, even though the declarant was a child at the time the statements were made. Convictions on Counts 9, 10, 19, 26, and 28 reversed and remanded; remanded for sentencing; otherwise affirmed.