Evidence: A defendant may introduce evidence of prior injury to demonstrate the possibility the harm did not occur at the time in question. However, such evidence may only be admitted if valid under OEC 701.

At trial, defendant was convicted of the death of a 15-month old child caused by abuse alleged on a specific date. Defendant attempted to introduce a lay opinion into evidence that prior acts of abuse occurred days before the baby’s death. The trial court excluded the evidence. The Court reviewed the statements and held the witness’s opinion valid under OEC 701, since it was not based on conjecture and the witness had personal knowledge to make the opinion. The Court further held that defendant had the right to introduce the prior acts since they were relevant and the probative value outweighed the prejudicial effect. However, the Court held that the Court of Appeals erred when they reversed the trial court’s ruling excluding evidence of the child’s appearance days before her death because the evidence was not relevant. Lastly, the Court concluded that the trial court erred when excluding witness testimony that the victim looked like her own daughter when dehydrated and suffering from a brain injury because her testimony was that of a lay witness. Reversed in part and affirmed in part.