[DV_listserv] Hearsay Case

[Domestic Violence issues]

HEARSAY: Trial court erred in admitting victim's out-of-court statements under the
hearsay exception for prior consistent statements made to rebut a charge of recent
fabrication, OEC 801(4)(a)(B).

State v. Villanueva-Villanueva, 262 Or App __, __ P3d __ (April 30, 2014)
(Washington) (AAIC Jamie Contreras). Defendant was charged with committing sexual and
assault offenses against his wife, among other things. At trial, he argued that he had not
committed the crimes, and presented evidence that the victim had fabricated her story to get legal
immigration status (a U-Visa). To rehabilitate the victim, the state sought to introduce the
victim's out-of-court statements under OEC 801(4)(a)(B), the exception for prior consistent
statements made before an alleged motive to fabricate arises. Defendant objected that the
victim's out-of-court statements were not made before the motive to fabricate arose, because the
victim had talked about getting immigration papers before she made the statements in question.
The trial court (Judge Steven Price) admitted the evidence under OEC 801(4)(a)(B) and,
alternatively, because the statements were excited utterances admissible under OEC 803(2). The
jury found defendant guilty, and defendant appealed. On appeal, the state conceded that the
victim's statements were inadmissible hearsay, but argued that the error was harmless because
the statements were consistent with the defense theory that the victim had fabricated the charges
to obtain legal immigration status.

HELD: Reversed and remanded in part (Nakamoto, J.). The trial court erred in admitting
the victim's hearsay statements; the error was harmful as to all but one of the counts, felony
fourth-degree assault. [1] Because the victim made the out-of-court statements after the alleged
motive to fabricate arose, the statements did not fall within the hearsay exception for prior
consistent statements. [2] The facts did not support the trial court's conclusion that the victim's
statements were excited utterances. [3] The error was not harmless as to three of the four counts
charged, because the state did not present overwhelming evidence of defendant's guilt, and the
case turned largely on the victim's credibility. [4] But the error was harmless as to defendant's
conviction for felony assault, given defense counsel's acknowledgment in opening and closing
argument that he had hit the victim in the face, and had previously been convicted of assault.
http://www.publications.ojd.state.or.us/docs/A147918.pdf

NOTE: Given its disposition of the case on hearsay grounds, the court did not address
defendant's other argument on appeal, that the trial court erred in allowing the prosecutor to
comment during closing argument on defendant's in-court behavior-an issue of first impression in Oregon.

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