State v. Lane , 329 Or. App. 821 ( 2023 )

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This is a nonprecedential memorandum opinion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 sex-
ual 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 admit-
ting the statements under the recorded recollection hear-
say 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, 285 Or App
855, 860, 398 P3d 998 (2017), rev’d on other grounds, 364
Or 410, 435 P3d 752 (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 like-
lihood that the particular error affected the verdict[.]” State
v. Davis, 336 Or 19, 32, 77 P3d 1111 (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, 294 Or App 840, 849, 433 P3d 385 (2018),
rev den, 365 Or 502 (2019) (citing Davis, 336 Or at 33-34).
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 cumu-
lative of other evidence admitted without objection, which
includes assessing any differences in the quality of the erro-
neously admitted or excluded evidence as compared to the
other evidence on the same issue.” Simon, 294 Or App at 849.
Here, the admitted hearsay statements all related
to defendant’s initial explanation of the reason for M’s
Nonprecedential Memo Op: 329 Or App 821 (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 state-
ments 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 evi-
dence 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,
293 Or App 62, 65, 426 P3d 203, adh’d to as modified on
recons, 294 Or App 780, 431 P3d 104 (2018), rev den, 364
Or 294, and rev den, 364 Or 535 (2019) (explaining that
evidence of other abuse may be relevant for a nonpropen-
sity 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, 302 Or 631, 645, 733
P2d 438 (1987). Accordingly, the trial court did not abuse its
discretion in admitting the statements made by the victim
during the forensic interview.
Affirmed.