dissenting.
Defendant was convicted of rape, sodomy, and unlawful sexual penetration for having sexual relations with a 13-year-old victim. The majority reverses defendant’s convictions because the prosecutor did not “mak[e] known” to *397defendant, 15 days before trial began, her intention to offer the victim’s videotaped statement at trial. There is no dispute that the prosecutor did not say 15 days before trial began that she intended to offer the victim’s videotaped statement in evidence. She had, however, provided the videotaped statement to defense counsel months earlier as part of discovery, and there was evidence from which the trial court could find that, in this case, the act of providing the videotaped statement to defense counsel was sufficient to make known to defendant the prosecutor’s intention to offer the statement at trial. The majority’s opinion forecloses the trial court from considering that factual issue on remand. Because I would permit the trial court to decide that issue, I respectfully dissent.
OEC 803(18a)(b) authorizes the admission of certain kinds of hearsay if “the proponent of the statement makes known to the adverse party the proponent’s intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown.” In this case, the prosecutor did not say 15 days before trial began that she intended to offer the victim’s videotaped statement, which she had provided to the defense months earlier. It follows that the initial question this case poses is whether the absence of a statement to that effect precludes the trial court from finding that the prosecutor had made her intention known. Put another way, the initial question is whether conduct alone can ever suffice to satisfy the terms of the rule. If, as I conclude, it can, the remaining question is whether, on this record, the trial court could find that the prosecutor had made her intention known.
The first question presents an issue of statutory interpretation, which is governed initially by the text and context of OEC 803(18a)(b). See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Textually, OEC 803(18a)(b) does not require written notice; indeed, it does not require any particular type of notice. The rule focuses instead on a result: Has the proponent of a hearsay statement made his or her intention known to the adverse party to offer the statement at trial. By its terms, the rule is indifferent to the means by which that result is achieved. Written notice will suffice, as will verbal. But nothing in the text of the rule precludes the proponent from making his or *398her intention known by nonverbal means. In the same way that the parties’ agreement to enter into a contract may be communicated solely by conduct, see Staley v. Taylor, 165 Or App 256, 262, 994 P2d 1220 (2000),1 so may the proponent’s intention to offer particular statements at trial.
The context supports that conclusion. OEC 412(4)(a) requires a person who wants to introduce evidence of a victim’s past sexual behavior to “make a written motion to offer the evidence not later than 15 days before the date on which the trial * * * is scheduled to begin [.]” When the legislature intends to require a particular form of notice, it knows how to say so. See Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 233, 26 P3d 817 (2001); Armstrong v. Rogue Federal Credit Union, 328 Or 154, 160, 969 P2d 382 (1998); State ex rel Hall v. Riggs, 319 Or 282, 286-87, 877 P2d 56 (1994). It did not say so here. Moreover, OEC 803(18a)(b) is frequently employed in criminal cases, and the criminal discovery statutes require the state to provide books, papers, and documents that “the district attorney intends to offer in evidence at the trial[.]” ORS 135.815(1)(d)(A). If the state provided a defendant with discovery pursuant to this subsection, the mere act of providing discovery — without more — would be sufficient to make known the state’s intention to offer the evidence at trial. The context makes clear what the text implies: In some instances, conduct alone can be sufficient to make the proponent’s intention to offer the evidence known to the other party.2
*399I hasten to add that counsel would be well served to give their opponent written notice more than 15 days before trial begins both of their intention to offer a hearsay statement and of its “particulars.” Written notice removes any doubt that counsel has complied with the terms of OEC 803(18a)(b). The question here, however, is not what is the best way to comply with the rule; rather, the question is what is the minimum that the rule requires in order to meet its terms. The text and context of the rule make clear that a trial court could find, in an appropriate case, that conduct alone was sufficient to make known to the adverse party the proponent’s intention to offer the statement and its “particulars.”
The remaining question is whether the record would permit the trial court to make that finding in this case. On that point, the majority has quoted almost the entire record in its opinion. It is helpful, however, to put the parties’ colloquy in perspective. In this case, the victim’s mother permitted three men to have sex with her 13-year-old daughter in order to obtain drugs. The state charged the men, one of whom was defendant, and the mother with various crimes. The charges against all four persons were joined for trial.
Approximately five months before trial, defendant’s counsel moved for an order requiring the state to produce a videotape of the victim’s statement. The affidavit in support *400of the motion explained that counsel had learned from the police reports that the victim had been “interviewed regarding the allegations against defendant in this case, at Children’s Advocacy Center on August 4, 1999 and that those interviews were video-taped.” The affidavit also explained that it was necessary for the videotape to be provided to defense counsel “[i]n order to prepare an adequate defense for defendant * * *." The prosecutor did not oppose the motion provided that “defendant agrees to make no duplicate copies and agrees that the tapes will only be shown to those person[s] necessary for the preparation of defendant’s defense.” Defendant stipulated to those limitations, and the court granted the motion.
Fewer than 15 days before trial, the prosecutor filed a written notice of her intent to offer at trial the victim’s videotaped statement that she had provided to the defendant approximately five months earlier.3 Douglas Engle, counsel for defendant, and Carl Caplan, the counsel for another defendant, objected to the introduction of the victim’s out-of-court statements.4 In responding to those objections, the prosecutor mistakenly assumed that OEC 803(18a)(b) required written notice and agreed that her written notice was untimely. She argued, however, that she came within the good cause exception to OEC 803(18a)(b).
In the course of making that argument, the prosecutor represented to the court that she had provided the videotape to all the defense counsel months earlier and that, when she failed to file her written notice 15 days before trial, “[she] was getting phone calls from Mr. Engle [defendant’s counsel] and Mr. Parker saying, You didn’t file your notice.’ So they all — they all knew that this was going to come in.” The prosecutor added, “This is a case where they have known evidence — they have known about this evidence, they know *401that in all of these cases, the State is going to submit this evidence to the court in trial.” The prosecutor concluded, “And I think that very clearly they know that — that the Advocacy Center takes these statements and that these statements are going to be offered by the State as evidence.” Based on those representations, the prosecutor argued that she came within the good cause exception to the rule.
Engle, defendant’s counsel, did not dispute the prosecutor’s representations. He did not argue that he did not have the videotape long before trial began. He did not dispute that he called the prosecutor after the 15-day period had passed to tell her that she had missed the deadline. He did not disagree with the prosecutor’s statement that all the defense counsel “knew that this [evidence] was going to come in,” nor did he dispute her statement that he and the other defense counsel knew that “in all of these [child sex abuse] cases, the State is going to submit this [kind of] evidence to the court in trial.” Finally, he did not dispute that he knew that the state typically offered statements taken by the child advocacy center.5 Rather, Engle’s sole response to the prosecutor’s representations was to assume that they were true but argue that his knowledge of her intention to offer the evidence did not constitute good cause. The trial court rejected Engle’s argument and admitted the evidence under the good cause exception.
I agree with the majority, and also with defendant, that the good cause exception does not apply in this case and that the trial court erred in denying defendant’s objection on that ground. However, I do not agree with the majority that the trial court could not find on remand that the act of providing the videotape to defense counsel made the prosecutor’s intention to offer that evidence at trial known.6 Three pieces of evidence, considered together, support that conclusion.
*402First, the prosecutor represented that all the defense counsel “know that — that the Advocacy Center takes these statements and that these statements are going to be offered by the State as evidence.” Similarly, the prosecutor represented that the defense counsel “know in all of these [child sex abuse] cases, the State is going to submit this [kind of] evidence to the court in trial.” The trial court reasonably could infer from these representations that, when there is an allegation of sexual abuse, the Children’s Advocacy Center interviews the alleged victims and that it is the district attorney’s practice to introduce the resulting interviews in child sex abuse trials. The trial court reasonably could find that, in light of that practice, the act of providing the victim’s videotaped statement to the defense in discovery was sufficient to make known to defendant the state’s intention to offer that evidence at trial. The trial court of course need not draw that inference, but the inference is a permissible one.
Second, the prosecutor represented, and defendant’s counsel did not dispute, that when she failed to file her written notice 15 days before trial, she began to get calls from defendant’s counsel and counsel for another defendant saying, “You didn’t file your notice.” The trial court could reasonably infer from defense counsel’s calls to tell her that she had missed the deadline that he was aware that the prosecutor had intended to introduce the videotape but was now barred from doing so. Why else would he have called to tell her that she could not introduce the victim’s videotaped statement unless he had been aware all along that that had been her intent? It may be that the trial court could draw a different inference. But it could also find from those calls that the act of providing the videotape in discovery had made known to defendant the state’s intention to offer that evidence at trial.
Were there any doubt about the correct inference to be drawn from defense counsel’s calls, the prosecutor’s next statement removes it. After explaining that she began getting the calls when she failed to file a written motion 15 days before trial, the prosecutor added, “So they all — they all knew that this [evidence] was going to come in.” Defendant’s counsel did not dispute that statement. The trial court could reasonably infer from counsel’s silence that he agreed with the prosecutor — after having received the videotape in discovery, he “knew that this [evidence] was going to come in.” If *403that were the trial court’s finding, then the terms of OEC 803(18a)(b) would be satisfied.
The third consideration is not as significant as the first two, but it supports the conclusion that the prosecutor’s intention to offer the evidence was clear. Defendant filed a motion five months before trial to require the prosecutor to provide him with the victim’s videotaped statement, and the prosecutor agreed to do so subject to certain conditions. Defendant did not cite any authority for his motion, but ORS 135.815(1)(a) is the only apparent source of authority. That portion of the criminal discovery statutes requires district attorneys to disclose the “names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial, together with their relevant written or recorded statements * * *." As the statute makes clear, defendant was entitled to discover the victim’s videotaped statement solely because it was relevant to her testimony at trial — a proposition defendant’s affidavit in support of the motion confirmed.
ORS 135.815(1)(a) makes clear that the victim’s videotaped statement was integral to the testimony of a witness whom the prosecutor intended to call at trial — the victim. That fact, combined with the district attorney’s practice of introducing statements taken by the Children’s Advocacy Center in child sex abuse cases, defendant’s counsel's calls to the prosecutor, and his acquiescence in the prosecutor’s assertion that he knew that this evidence was going to come in, are more than sufficient to permit the trial court to find that, on the facts of this case, the act of providing the victim’s videotaped statement to defense counsel made known to defendant that the prosecutor intended to offer that evidence at trial. The majority errs in sending this case back for a new trial. We should remand this case to permit the trial court to decide first whether the prosecutor made known to defendant her intention to offer the victim’s videotaped statement at trial. If she did, a new trial would not be necessary.
I respectfully dissent.
Deits, C. J., and Linder, J., join in this dissent.We explained in Staley that, “[i]n an implied-in-fact contract, the parties’ agreement is inferred in whole or in part from their conduct.” 165 Or App at 262. We noted:
“ ‘[A]n implied contract can arise only where the natural and just interpretation of the parties warrants such a conclusion.’ Owen v. Bradley, 231 Or 94, 103, 371 P2d 966 (1962). Frequently, implied-in-fact contracts arise because an accepted course of conduct would permit a reasonable juror to find that the parties understood that their acts were sufficient to manifest an agreement. See Restatement (Second) of Contracts § 4, comment a, illustrations 1 & 2 (1979).”
Id. at 262 n 6.
The legislative history does not shed any light on this issue. In adding this rule to the evidence code, the legislature did not discuss how a litigant either may or must make his or her intention known to the other party. The legislative history does reveal that the relevant portion of Oregon’s rule was modeled on Washington’s rule, which in turn was modeled on the federal catch-all hearsay exception. See Minutes, Senate Judiciary Committee, SB 275, Feb 27, 1989, 4-5; State v. Hughes, 56 Wash App 172, 174, 783 P2d 99 (1989) (explaining the source of Washington’s *399rule). The Oregon legislature, however, amended the relevant portion of the federal rule in one respect. The federal rule requires the proponent of the hearsay to make his or her intention to offer the statement known “sufficiently in advance of the trial or hearings to provide the adverse party with a fair opportunity to prepare to meet [the statement] ” and it lacks a good cause exception. See FRE 807. As initially introduced, the Oregon bill tracked the federal rule. To make Oregon’s rule more definite, the Senate Judiciary Committee amended the bill to require a proponent to make his or her intention known at least 15 days before trial and also added a good cause exception. See Tape Recording, Senate Judiciary Committee, SB 275, Feb 27, 1989, Tape 46, Side A (remarks of Senator Grensky), SB 275 A-Engrossed version (April 11, 1989). In construing the federal rule, the federal courts have focused on when the proponent’s failure to make his or her intention known before trial may be excused and have in effect read a good cause exception into the rule. See, e.g., Furtado v. Bishop, 604 F2d 80, 92-93 (1st Cir 1979). The federal cases have not addressed the question presented here — whether conduct alone can ever suffice to make a proponent’s intention to offer the evidence at trial known. Accordingly, even if we could look to federal court of appeals decisions interpreting FRE 807 to determine the Oregon legislature’s intent, those decisions do not shed any light on this issue.
In her written notice, the prosecutor stated that she intended to introduce the victim’s statements contained in the videotape as well as the statements that were contained in other discovery. Because the majority holds only that the admission of the videotaped statement was not harmless error, I focus solely on the admission of that statement.
In setting out the parties’ colloquy, the majority refers to Engle as “defense counsel” and refers to the counsel for the other defendants by name.
Caplan, the attorney for another defendant, may have disputed the factual premise of the prosecutor’s statements, but Engle never did.
The majority suggests that the prosecutor’s failure to argue this theory below precludes our consideration of it. 186 Or App at 391-92. The state, however, prevailed below and can advance new reasons on appeal for upholding the trial court’s ruling. If, as I conclude, there is evidence from which the trial court could find that the prosecutor had complied with OEC 803(18a)(b), judicial economy counsels that we should permit the trial court to decide that issue on remand and potentially bring this case to its conclusion. We need not automatically remand the case for a new trial.