State v. Harris ( 1986 )

GILLETTE, P. J.,

Pro Tempore

Defendant was convicted of sexually abusing his 3 1/2 year old son. We affirmed the judgment on his original appeal. State v. Harris, 74 Or App 367, 704 P2d 553 (1985). On remand from the Oregon Supreme Court on defendant’s petition for review, we are now asked to reconsider our earlier affirmation in the light of State v. Campbell, 299 Or 633, 705 P2d 694 (1985). We reverse.

At defendant’s trial, the judge, after ruling that the victim was incompetent to testify due to his age, nonetheless admitted into evidence, over appropriate objections, statements made by the victim to both his mother and grandmother, which implicated defendant. The court admitted the hearsay testimony of the mother and grandmother under the residual exception to the rule against hearsay. OEC 803(24).

In State v. Campbell, supra, the court ruled that, for admission of unexcited hearsay declarations of sexual misconduct, the pertinent exception to the rule against hearsay is OEC 803(18a).¹ The availability of that specific exception excludes the use of the general residual hearsay exception in OEC 803(24). Thus, in this case, the trial court erred by admitting the hearsay statement under the residual hearsay exception. Furthermore, because the hearsay testimony went to the details of the victim’s complaint, the statements exceeded the limits of admissibility permitted by OEC 803(18a). State v. Campbell, supra, 299 Or at 646.

Reversed and remanded for a new trial.

1 OEC 803 provides in part:

“The following are not excluded by Rule 802, even though the declarant is available as a witness:

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“(18a) Complaintiof sexual misconduct. A complaint of sexual misconduct made by the prosecuting witness after the commission of the alleged offense. Such evidence must be confined to the fact that the complaint was made.”