FILED: March 6, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOHNNY LEE CARTER,
aka John Doe, #3,

Appellant.

993803DFE; A111196

Appeal from Circuit Court, Jackson County.

Patricia Crain, Judge.

Argued and submitted November 19, 2002.

George W. Kelly argued the cause and filed the brief for appellant.

David J. Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Edmonds, Presiding Judge, and Kistler and Brewer, Judges.

PER CURIAM

Reversed and remanded for new trial.

PER CURIAM

Defendant appeals from convictions for three counts of rape in the second degree, ORS 163.365, and one count of unlawful sexual penetration in the second degree, ORS 163.408. On appeal, defendant first argues that the trial court denied him his constitutional right to a grand jury indictment when it amended the indictment at arraignment by substituting his name for the name "John Doe" without referring the indictment back to the grand jury. Second, he argues that the trial court erred by permitting the state to introduce evidence of a videotaped interview of the victim without complying with the notice requirement of OEC 803(18a)(b).

Defendant did not preserve his first argument at trial. Although he urges us to consider it under ORAP 5.45 as "error apparent on the face of the record," we decline to do so. However, because the state failed to comply with the notice requirement of OEC 803(18a)(b), and in light of our holding in State v. McKinzie, 186 Or App ___, ___ P3d ___ (Feb 19, 2003), defendant's convictions must be reversed.

Reversed and remanded for a new trial.


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