State v. Bautista

Under OEC 801(4)(a)(B), it is not an exception to hearsay if the motive to fabricate testimony arose before the prior consistent statement was made.

Defendant appeals his convictions during a second trial (after the first ended in mistrial) for one count of first-degree sodomy and two counts of first-degree sexual abuse. The defendant is charged of committing the offenses against his stepdaughter when she was between the ages of five and eight years. Defendant claims that the trial court erred by admitting evidence of the complainant’s testimony before the grand jury and portions of the complainant’s testimony from the first trial. The prosecution attempted to enter the testimony as “prior consistent statements” so as to avoid hearsay exceptions. The previous testimony offered by the alleged victim concerned allegations that were directly relevant to the accusations of sexual misconduct. Defendant claimed that the alleged victim made those statements after she had motive to fabricate them because she had discovered that victims of sexual abuse can be eligible for a “U visa.” The Court held that to qualify for admission under OEC 801(4)(a)(B), as rebutting charge of recent fabrication, the statement must have been made before the asserted motive to fabricate arose. Further, the Court determined that the alleged victim’s purported motives to fabricate preceded her testimony and that that was not a harmless error so the decision was remanded. Remanded in part.