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State v. Harris, — P.3d —, 2017 WL 4684024 (Or. Oct. 19, 2017)
Defendant appealed his conviction for attempted misdemeanor assault, arguing that his right to confrontation under Article I, section 11 of the Oregon Constitution was violated when the trial court allowed the state to use hearsay evidence in the form of a 911 recording in lieu of the minor-victim’s live testimony. The state had subpoenaed the minor-victim to testify, but learned the morning of trial that she was not going to appear. The state tried contacting the minor-victim but could not reach her. The trial court offered to continue the trial until the next morning to provide the state time to secure the witness, and the state agreed. Defendant objected to the continuance. The trial court then found that the witness was unavailable and that the 911 recording was reliable. The trial court admitted the evidence, and defendant was convicted. On appeal, defendant argued that the state did not make an adequate showing of witness unavailability. Defendant argued that the state only satisfies this obligation after exhausting every reasonable means available of securing a witness. The state argued that it only needed to show a reasonable, good-faith effort to secure the witness’s presence, and that serving a prospective witness with a valid subpoena satisfies that obligation. The Oregon Supreme Court concluded that to establish unavailability for Article I, section 11 purposes, the state must show that “it was unable to produce a witness after exhausting reasonable means of doing so.” The court noted that in most cases, this will require more than merely relying on a subpoena. However, in the present case, because defendant objected to the continuance, he was found to have invited error and could not complain that the state failed to exhaust other means of securing the witness. The court affirmed defendant’s conviction.