Opinion
C910190CR; CA A73303
Argued and submitted April 28, affirmed October 6, reconsideration denied December 1, petition for review denied December 14, 1993 ( 318 Or. 171)
Appeal from Circuit Court, Washington County.
Gregory E. Milnes, Judge.
David C. Degner, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Ann F. Kelley, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Deits, Presiding Judge, and Riggs and Durham, Judges.
RIGGS, J.
Affirmed.
Defendant appeals his conviction for one count of rape in the first degree, ORS 163.375, and two counts of criminal mistreatment in the first degree, ORS 163.205. He assigns error to the admission of hearsay statements. We affirm.
Defendant was convicted of raping and otherwise injuring a two-year-old child he was babysitting. He failed to obtain medical treatment for the child. The child was later taken to the C.A.R.E.S. unit at Emanuel Hospital where, in response to a question by the treating physician, Dr. Bays, the child identified defendant as the person who caused the injury.
The state made a pre-trial motion to admit Bay's hearsay testimony under OEC 803(18a)(b). Defendant opposed the motion, citing OEC 803(4) and OEC 803(18a)(b). The court found the child incompetent to testify. When the admissiblity of the evidence was challenged before trial, the court reserved a ruling. During trial, defendant renewed his objection to admission of Bay's testimony. His objection was overruled.
On appeal, defendant argues only that Bay's hearsay testimony was inadmissible under OEC 803(4). However, the evidence was offered under OEC 803(18a)(b). We do not ordinarily consider an error inadequately raised on appeal. Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991). Regardless of how we decide the issue of admissibility under OEC 803(4), admissibility under OEC 803(18a) (b) is unchallenged. The error was not adequately raised. We decline to consider it.
Affirmed.