STATE v. FULLER (2021)

On appeal, defendant challenges judgments entered after he was convicted of three counts of first-degree sodomy, ORS 163.405, and one count of luring a minor, ORS 167.057. Defendant makes three assignments of error: (1) the trial court erred in overruling defendant's pretrial objection to double hearsay not covered by OEC 803(18a)(b); (2) the court plainly erred in instructing the jury that it could return nonunanimous verdicts; and (3) the court erred in awarding $1,678 in restitution to CARES NW.

Defendant first argues that the trial court erred in overruling defendant's pretrial objection to Officer Schwartz's testimony about what another child, D, told him that the victim had told her about defendant's abuse. Invoking the analysis of the dissenting opinion in State v. Simon, 294 Or. App. 840, 433 P.3d 385 (2018), rev. den., 365 Or. 502, 451 P.3d 987 (2019), defendant contends that the testimony was hearsay not made admissible by the exception in OEC 803(18a)(b) because Schwartz was not testifying to a statement of abuse told directly to him. See Simon, 294 Or. App. at 880-82, 433 P.3d 385 (Shorr, J., dissenting) (concluding that OEC 803 (18a)(b) does not permit a witness to testify to another person's hearsay statements about a third person's statements regarding abuse and rejecting the majority's conclusion that any error was harmless, obviating the need to reach the issue). Defendant further contends that any error was not harmless.

The state responds that the hearsay exception covers Schwartz's testimony and that the reasoning in the Simon dissenting opinion is incorrect. Further, the state argues that any error is harmless largely because D testified directly to the same information. Similar to the majority in Simon, we agree with the state that any possible error in this case is harmless because the erroneously admitted testimony was cumulative and not qualitatively different than other admitted evidence. See id. at 853-54, 433 P.3d 385 (concluding evidentiary error was harmless when erroneously admitted evidence was cumulative of other evidence admitted without objection).

Defendant next argues that the trial court committed structural error when it instructed the jury that it could return nonunanimous verdicts and that that alleged structural error requires reversal notwithstanding the fact that the jury's verdicts were unanimous. That argument fails under State v. Flores-Ramos, 367 Or. 292, 294, 334, 478 P.3d 515 (2020) (holding that error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by unanimous guilty verdicts), and State v. Kincheloe, 367 Or. 335, 339, 478 P.3d 507 (2020) (same).

Finally, the state concedes, and we agree and accept the concession, that the trial court erred in awarding restitution to CARES NW because it was not a victim entitled to restitution under ORS 137.103. State v. White, 296 Or. App. 445, 450-51, 439 P.3d 569, rev. den., 365 Or. 195, 451 P.3d 978 (2019) (concluding that CARES NW was not entitled to restitution because it did not suffer economic damages under ORS 137.103).

Supplemental judgment reversed; otherwise affirmed.

PER CURIAM