State v. Simon, 433 P.3d 385

Background

Defendant (80 at trial) convicted of 1 count unlawful sexual penetration (first degree) and 7 counts sexual abuse (first degree) against three victims (two 16-year-old twins and their adult cousin). convictions rested on victims’ testimony and multiple prior disclosures.
Several prior out‑of‑court disclosures were admitted without objection, including videotaped CARES interviews of the twins and a recorded call between the cousin and defendant.
At trial the twins’ father testified that, during a pretrial call, KLM told him that defendant had “raped” SAM; defense objected as hearsay and the court admitted the testimony under OEC 803(18a)(b). The admission was argued on appeal as impermissible double hearsay.
After conviction, defense raised competency concerns: post‑trial evaluations diagnosed mild neurocognitive disorder (dementia). Competing experts disagreed whether defendant was competent to be sentenced or had been competent at trial. Trial court found defendant competent to be sentenced and denied a new‑trial motion based on newly discovered evidence of incompetency.
The court affirmed: (1) it assumed without deciding the double‑hearsay ruling but held any error harmless given the record; (2) it applied the correct Dusky/ORS competency standard (tailored to sentencing) and the record supported the trial court’s competency findings; (3) it upheld denial of new trial for failure to show defendant was incompetent at the time of trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of double hearsay (OEC 803(18a)(b))	State: the exception covers statements "concerning an act of abuse," and the brief relay was admissible; if error, it was harmless.	Defendant: testimony was double hearsay (victim → KLM → father → testimony) and not admissible under OEC 803(18a)(b); prejudicial.	Court assumed without deciding the scope issue but ruled any error harmless given voluminous, cumulative corroborating evidence and limited use of the challenged statement.
Preservation of hearsay objection	State: defense preserved a hearsay objection; court considered admissibility and proceeded.	Defendant: preserved; urges error preserved for appeal.	Majority disposed on harmless‑error ground and did not reach all preservation/subissue permutations.
Competency to be sentenced (legal standard)	Defendant: ORS 161.360 statutory standard applies and trial court misapplied or minimized it.	State: federal Dusky test and ORS standard are materially aligned; court may tailor assessment to sentencing context.	Court: Dusky/ORS standard applies; competency assessed relative to participation required at sentencing; trial court used an appropriate, context‑tailored three‑part test.
Sufficiency of record to find competency / new trial based on newly discovered evidence	Defendant: post‑trial neurocognitive diagnosis shows incompetence at trial and for sentencing; warrants new trial/vacatur.	State: competing expert and trial observations support competency; defendant failed to meet burden for new trial.	Court: weight of evidence supports trial court’s credibility choice favoring state expert; record supports findings that defendant was competent for sentencing and that newly discovered evidence did not establish incompetency at time of trial.

Key Cases Cited

Dusky v. United States, 362 U.S. 402 (1960) (establishes competency standard: ability to consult with counsel with rational understanding and to have a factual and rational grasp of proceedings)
Drope v. Missouri, 420 U.S. 162 (1975) (reaffirms Dusky competency requirements throughout trial)
State v. Davis, 336 Or. 19 (2003) (harmless‑error framework for assessing prejudicial effect of evidentiary error)
State v. Rodriguez‑Castillo, 345 Or. 39 (2008) (analyzes double hearsay under OEC 803(18a)(b) and treats intermediate relay as separate hearsay layer)
State v. Baughman, 361 Or. 386 (2015) (discusses limits on other‑acts evidence and propensity inference under OEC 404)