State v. Smith, 476 P.3d 521

Defendant Jessica Smith was charged with second-degree criminal mischief and second-degree criminal trespass after an incident in which the victim (C) recorded defendant allegedly smashing a refurbished motor coach with a baseball bat on his posted, fenced property.
C recorded the incident on his cell phone, called 9‑1‑1, and directly told responding officer Slater that the woman had been on his property, broke the bus windows with a bat, and was told to leave more than once.
At trial C testified he was scared and that the incident was "burnt in [his] mind;" on cross-examination defense counsel questioned C’s perception and memory and attempted (but did not complete) impeachment with the police report.
The trial court allowed Slater to testify to three statements C had made to him on the day of the incident as prior consistent statements under OEC 801(4)(a)(B); the defense objected that those statements were hearsay.
On appeal the sole preserved assignment of error addressed admission of those prior statements; defendant argued they were not admissible because the state did not offer them to rebut an inconsistent statement nor did defense charge C with recent fabrication or improper motive.
The Court of Appeals held the trial court erred in admitting the prior consistent statements and that the error required reversal of the criminal mischief conviction (harmless as to trespass); remanded for resentencing on the remaining count.

Issue	State's Argument	Smith's Argument	Held
Whether Slater’s testimony about C’s prior statements was admissible under OEC 801(4)(a)(B) as prior consistent statements	Cross‑examination was "vigorous" and challenged C’s memory/perception, so the statements rebut an imputation of inaccurate memory and rehabilitate C	The prior consistent statements were offered neither to rebut a prior inconsistent statement nor to meet an express or implied charge of recent fabrication or improper motive; thus they were hearsay	Reversed: statements were not admissible under OEC 801(4)(a)(B); trial court erred in admitting them
Whether the admission of the prior statements was harmless error as to each conviction	Admission did not affect verdicts because other evidence supported both counts	Admission was prejudicial to the criminal mischief conviction because C was the sole eyewitness to the damage; admission bolstered his testimony	Error was harmful as to criminal mischief (conviction reversed and remanded); harmless as to trespass (conviction affirmed)

State v. Hartley, 289 Or App 25 (legal standard for reviewing admissibility under OEC 801(4))
State v. Bautista, 271 Or App 247 (prior consistent statements admissible when impeaching evidence suggests motive to lie)
State v. Johnson, 340 Or 319 (prior consistent statements may rehabilitate memory challenged on cross‑examination where statutory conditions met)
Cook v. Safeway Stores, Inc., 266 Or 77 (prior consistent statement doctrine and limits)
Powers v. Officer Cheeley, 307 Or 585 (vigorous cross‑examination alone does not justify admission of prior consistent statements)
State v. Davis, 336 Or 19 (defendant bears burden to show evidentiary error affected verdict)
State v. Simon, 294 Or App 840 (consideration of disputed evidence in context of entire trial for harmless‑error review)
State v. Wood, 253 Or App 97 (erroneously admitted hearsay that significantly reinforces declarant’s testimony can require reversal)