*1 17; Argued and submitted March resubmitted En Banc October affirmed 22, 1999 December In the Matter of Pfaff, a Minor Child. Christopher STATE ex rel JUVENILE DEPARTMENT COUNTY,
OF MULTNOMAH Respondent, v. PFAFF,
Christopher Appellant. A99785)
(9703-80720; CA
Lisa Lynn M. Travis. the brief was
471-b Janet A. Klapstein, General, Assistant Attorney argued the cause for respondent. With her on the brief were Hardy Myers, General, Attorney and Michael D. Reynolds, Solicitor General. Deits,
Before Presiding Judge, Edmonds, Muniz, De Landau, Haselton, Linder, Armstrong, Wollheim and Brewer, Judges.
HASELTON, J.
Edmonds, J., dissenting. J.,
Armstrong, dissenting.
Wollheim, J., dissenting.
HASELTON, J. juvenile judgment court’s from appeals
Child that, if commit- he conduct engaged that determined that harassment, two counts of adult, constitute ted an would of a count of the welfare 166.065, endangering and one ORS trial court erro- contends that the minor, ORS 163.575. Child testimony pertaining admitted certain neously that, testimony, and without endangering count Child further was insufficient. as to that count proof state’s corrobora- to adduce sufficient the state failed contends harassment. constituting the acts child’s admissions of tion of 419A.200(5), 19.125(3), we review, ORS novo ORS On de affirm. hear- juvenile 13 at the time of the
Child, who was Eddie, brother, mother, 11-year-old his lived with his ing, below, in fully As described more boyfriend. his mother’s and Wendy mother 1997, spoke child and March both clinical who works primarily social worker Jensen, a licensed offenders, child’s interactions about with adolescent sexual to evaluate interviews was of those purpose with Eddie. out” in the “acting his potential sexual conduct and child’s interviews, an eval- produced Jensen Following future. those in “reportable” have may engaged that child uation, stating State Police Oregon that report, conduct. As a result of sexual approxi- child for interrogated Kenneth Poggi Detective 9, 1997. Sub- May school on hours at his middle two mately Juvenile 1997, County the Multnomah in June sequently, in part: alleging, filed a Department petition, * * * OF A MINOR THE “ENDANGERING WELFARE 1996, May 5, and “[Child], January on or between Multnomah, Oregon, of did State County cause, Pfaff an unmar- Edward unlawfully knowingly and an age eighteen years, to witness under the person ried masturbation, contrary conduct, to wit: act of sexual against provided and cases made Statutes such Oregon. of the State peace dignity [*] [*] * *
“HARASSMENT*** *5 day January, “Between the 1 of and day the 5 of 1997, Multnomah, in May, County of State of Oregon, unlawfully intentionally annoy [child] did and harass and Pfaff, by Edward subjecting phys- Edward Pfaff to offensive by ical urinating contact on him.
«* * * * *
“HARASSMENT*** day “Between the 1 January, of 1996 and day the 5 of May, Multnomah, in County Oregon, State of unlawfully [child] did and intentionally annoy harass and Pfaff, by Edward subjecting Edward Pfaff to phys- offensive by ical him.”1 smearing contact feces on The court juvenile hearing occurred petition September 10, 1997. At outset, child’s counsel moved to unsuccessfully suppress child’s statements to on the Poggi grounds that child did not knowingly and voluntarily waive his right against self-incrimination. In addition to Poggi’s testimony, the state also presented testimony Jensen. Jensen stated that child had admitted her to that he had uri- nated on Eddie and wiped feces on Eddie. Jensen also testi- fied, over child’s hearsay objections, that mother had her told (Jensen) that Eddie had to complained mother about child masturbating front of him and urinating and smearing feces Child, on him. Eddie, and mother all testified at the hearing and denied that the alleged conduct had occurred.2 The trial court concluded:
“I am beyond satisfied a reasonable doubt that the remain- * * * ing allegations three occurred which was the Endan- gering of the Welfare of a Minor and the two Harassment charges. I’m satisfied about charges, quite frankly, those petition allegations, ultimately included other which the trial court and, prove determined that appeal. consequently, the state had failed to are not at issue on acknowledged Mother complained that she had told Jensen that Eddie had smearing about only child feces on him but said that she told Jensen that child had “pretending.” testified, respect urination, been told Jensen “they Mother also with she that, boys go time, when the two would to bathroom at the same peed they toilet, both urinating on each other”—as were in the “the urine splashed got Finally, respect on both of them.” to the masturbation com plaint, mother denied that Eddie had ever told her that child had masturbated in conveyed complaint Rather, front of him or that she had such a to Jensen. mother merely engaged making gestures.” testified that child had “masturbation great there’s a deal of corroboration on all of those
because including therapist the admissions made to the charges, particular this case.” court erred in argues
On child the trial appeal, (1) his statements suppress Poggi; his motion to denying (2) as substantive evidence Jensen’s double hear- admitting recounting of mother’s of Eddie’s statements say recounting (3) her; warranted concluding adju- evidence on the count and the two harassment endangerment dication his argument We do not address child’s first because counts. are, ultimately, dispo- immaterial to our Poggi below, regardless admissibility As amplified sition. statements, adjudi- warrants remaining those evidence cation on all three counts. *6 count, with the which begin endangerment
We in The only that child masturbated Eddie’s alleged presence. testimony, direct evidence of that conduct was Jensen’s on expressly which the trial court relied: “[By acting [mother] far sexual out that Jensen]: As as in, had engaged had she stated that she [child] stated complaints about sexualized behavior from both received her other son and from the school.
«* * * * [*] brother, Eddie, had me that the other “She stated to his, Eddie’s, in putting finger his complained [child] Eddie, had anus, he had smeared feces on that he that Eddie, that he had Eddie’s exposed himself to violated That he had by barging in the bathroom on him. privacy him in bed and that he had mastur- urinated on Eddie’s she, told [mother] of Eddie. That is what what bated front me.” that, that the evidence testimony,
Child contends without endangerment adjudication could not an support testimony that “the court acknowledges count. The state conduct establishes definitively appellant’s which the sex- recitation of therapist’s his brother was towards mother by appellant’s ualized conduct as described Jensen.” as trial, testimony to the objected quoted
At child conceded that ultimately child hearsay. Although double fell within the “sexual abuse” Eddie’s statements to mother (b),3 rule, 803(18a)(a), OEC he hearsay to the exception hearsay, mother’s state argued leg that second to the Jensen, any exception ments to did not fall within and, thus, not be treated as substantive hearsay rule could hearsay included within (“Hearsay evidence. See OEC 805 rule], if hearsay not excluded under 802 of the each [OEC of the combined statements conforms with an part exception 804].”). state, initially The after [OEC set forth 803 or OEC that to Jensen asserting regarding mother’s Eddie’s fell within the “medical or treat complaints 803(4), ultimately ment” OEC conceded that exception, asserted, however, was The state exception inapposite. as a inconsistent prior mother’s statements were admissible witness, 801(4)(a), statement of a OEC as an admission 801(4)(b), OEC or as a statement party-opponent, against 804(3)(c). interest, testimony OEC The court ruled that admissible, was without the basis of that specifying ruling, then, noted, testimony relied on the as substantive evidence.4 appeal, argument
On child reiterates his mother’s statements to Jensen Eddie’s recounting complaints to her did not any exception hearsay fall within rule. state, hearing which conceded at that the medical diag- nosis or treatment was now invokes exception inapposite, 803(18a)(a) following states that shall be not excluded as *7 regardless availability: of the declarant’s complaint complaint “A in of sexual misconduct or of abuse as defined ORS by alleged
419B.005 made the witness after the commission of the misconduct (b) subsection, paragraph Except provided or abuse at issue. as in of this such complaint evidence must be confined the fact that the was made.” to did, fact, testify testify hearing, the Because Eddie was available to —and —at entirety, his were admissible as substantive evidence in their OEC statements 803(18a)(b), complaint merely prove “the fact that the was made.” OEC and not 803(18a)(a). colloquy, After an extended the court observed: * * * “Well, point going can at this I’m receive the statements and then we 801(4) applies argue purpose. little what I don’t think a bit later about for opposed prior that are made under oath as because those are ftol Okay.” party, statements made to a third but — parties The court and the never revisited the issue.
that exception as a basis for the trial court’s affirming admis- of, on, sion reliance that testimony substantive evi- dence. The asserts, state alternatively, mother’s state- ments to Jensen constituted admissions against penal interest, 804(3)(c), or, events, OEC in all were admissible 803(26). under the residual exception, For the follow, reasons that we conclude that mother’s statements Jensen Eddie’s were recounting complaints admissible under the “medical diagnosis exception or treatment” to the hear- and, thus, say rule that the trial did in treating court not err testimony as substantive evidence. state,
We first consider whether having conceded 803(4) court, of OEC before the trial can inapplicability state, invoke that on the famil exception appeal. reciting iar for the “right wrong reason” that we will proposition affirm an evidentiary ruling any basis, correct alternative see, Nielsen, e.g., 611, 629, 853 (1993), State v. 316 Or P2d 256 contends that its concession was immaterial.5 prior Although the state’s its troubling, agree disavowal of concession is we that, record, on this the concession is not preclusive. regard ultimately grounded
Our conclusion in that is on the pragmatic principles underlying “right for the and, wrong reason” doctrine more broadly, preservation In Nielsen, the court requirements. explained reasoning underlying “right There, for the reason” doctrine. wrong the court sustained the trial court’s admission of a hearsay statement the trial court relied on notwithstanding considerations” as for its 316 Or at “improper support ruling. In so holding, quoted approval 629. court ration ale articulated the United by States Court Secu Supreme 80, 88, 63 454, 87 L Chenery, rities Comm’n v. 318 US S Ct Ed (1943): “ that, reviewing ‘[W]e do not disturb the settled rule court, decision of a lower it must be affirmed if the result is “although upon wrong correct the lower court relied a noted, rely admitting and 5 As the trial court did not describe its rationale for ing hearsay testimony Consequently, it on the double as substantive evidence. 803(4) possible, least, notwithstanding at that the court relied on OEC the state’s (1993) Bea, 220, 224, 864 contrary generally P2d concession. See State v. (courts conclusion”). concerning legal are not bound state’s “concession
477 * * * for this reason.” The reason wrong a ground gave or to a to send a case back It would be wasteful rule is obvious. already which it had to reinstate a decision lower court prop- court concluded should appellate which the made but power of the ground another within the erly be based on appel- it is also familiar court to formulate. But appellate the correctness of the lower procedure late that where a determination offact which depends upon court’s decision only jury made, has not been a could make but which ” jury.’ place court cannot take the appellate id., Clark 12. See also n quoting approval at 629 316 Or 1981): (9th 1033, 1036 Cir City Angeles, v. Los 650 F2d “ by the district court for admissibi- grounds given ‘[I]f incorrect, will be ruling are the court’s lity of the evidence which the evi- only grounds if there are no under reversed ” * * properly could be admitted dence The court Nielsen in concluded: consequently admitting judge ruling a trial makes a correct
“Where
it,
evidence
articulates an erroneous reason for
there is
but
(‘Error may
no need to reverse. See OEC 103
predi-
not be
upon
ruling
cated
which admits or excludes evidence
affected’).”316 Or
right
party
unless a substantial
is
(footnote omitted).
at 629
Nielsen’s
with,
more
was consonant
albeit
explication
than,
the doc
comprehensive
authority applying
a line of
See,
Bretz,
507, 519,
P2d 204
e.g., Huff v.
trine.
285 Or
592
Dowell,
(1979); State v.
4,n
“We reverse other than on which a case is tried and theories those parties opportu- decided unless the have been afforded an argument. The considera- nity to submit further briefs or in which we affirm a trial court. tions are different cases cases, the trial court arrived at a correct such when result, which, in different than those our grounds but on result, for such a we opinion, proper are more as the basis court; pro- trial improper that it is not to affirm the believe vided, course, sufficiently are broad pleadings that the record, as in this case. is sufficient evidence there particularly proper this is in suits in
“We believe that try appeal.” 272 Or at equity, which we de novo on 298-99. principle underlying primary Thus, the doctrine gratuitously is, That is that we will not reverse a trial court. ultimately, is, correct, if then unnecessary will the trial court’s result we *9 grounds affirm on alternative to avoid an necessary practical predicate applying for remand. that support principle adequately developed is that the record is grounds. e.g., See, If,
the alternative
id. at 298.
how-
ground
particu-
and,
ever, the alternative
for affirmance —
larly,
asserted for the first time
for admission of evidence—is
appears
opposing party
appeal
if
the
could have
and it
that
ground
developed
differently
record
had that
been raised
the
principles preclude
preservation
trial,
at
then
reliance on the
ground.
generally
new,
Blatt,
v.
alternative
See
Griffith
(1999)
App 204, 210,
Or
973 P2d
rev den
We concession before the in this case does preclude trial court not 803(4) our ground consideration of OEC as an alternative double-hearsay testimony. admission of Jensen’s Conse- 803(4). quently, we address the of OEC application return rule provides: We to OEC 805. That *10 “Hearsay hearsay included within is not excluded under (ORS 40.455) Rule if of the state- part each combined ments conforms with an set forth in Rule 803 or exception (ORS 40.465).” 40.460 or ORS Thus, if each “conforms with an leg hearsay double rule, hearsay hearsay then the double exception” admissible. to OEC Legislative Commentary See (3d Evidence, C. reprinted Kirkpatrick, Oregon Laird 1996) (“As ed it seems principle, scarcely open a matter of of a hearsay doubt that rule should not call for exclusion hearsay statement which includes a further state- hearsay requirements ment when both conform to the exception.”). state
Here, leg child concedes that the first —Eddie’s under the “child sex ments to mother —was admissible 803(18)(a). child Counsel for hearsay exception, abuse” OEC and, trial, at exception of that acknowledged applicability on child’s brief concedes: appeal, expressly to his hearsay, “The strand of Eddie’s statements first 803(18)(a).
mother, to Rule pursuant were admitted challenge ruling child does not appeal.” (Emphasis on added.) During oral argument appeal, counsel for the state noted that concession —that it was “not contested” —and child’s counsel Thus, did not disagree. the sole issue presented on is the appeal admissibility of the second of the double ieg i.e., hearsay, mother’s statements to Jensen.6 803(4) provides certain statements are not excluded as hearsay, though even the declarant is available as a witness: purposes
“Statements made for diagnosis medical or describing treatment and medical history, past or or pres- symptoms, pain sensations, ent or or inception gen- or eral character of [or] the cause external source thereof inso- far as reasonably pertinent diagnosis or treatment.” To be admissible 803(4), under OEC a statement must meet three requirements:
“(a) The statement be ‘made must of medical treatment’; or “(b) The statement must describe or relate ‘medical his-
tory, past or present symptoms, sensations, or or pain inception or general character of the [or] cause thereof; external source
“(c) The statement ‘reasonably pertinent diag must be ” Moen, 45, 55, 786 nosis or treatment.’ v. State 309 Or (1989). P2d 111 concession, Notwithstanding explicit Judge argues child’s Edmonds’sdissent 803(18)(a)(b). satisfy requirements that Eddie’s statements did not of OEC See (Edmonds, J., dissenting). at 489-92 The dissent contends that we should, fairness, engage sponte analysis holding in such a sua because we are not (Edmonds, J., the state to its concession before the trial court. Id. at 490 dissenting). wrong First, although The dissent is for at least two related reasons. it is axi- *11 may court, grounds argued omatic that we affirm on not to the trial there is no authority that, error,” proposition invoking “plain for the without we can reverse grounds Second,- argued invoking “plain the trial court on not to it. far from error” appeal, explicitly admissibility leg on hearsay. child conceded the of the of first double principles preservation, engage Given child’s concession and will we not any analysis admissibility of the of Eddie’s statements to mother.
481
Rather,
The
need not be made to a physician.
attendants,
or
hospital
“[statements
ambulance drivers
family
may
even members of the
or friends
be within the
to Rule
Legislative Commentary
scope
exception.”
522;
803(4),
Evidence at
see
reprinted
Kirkpatrick, Oregon
Cornett,
264, 270,
ex rel Juv.
v.
121 Or
Dept.
App
State
(1994)
(1993),
P2d 171
rev
OEC
its
does not
require
declarant
the person diagnosed
Rather,
be
or treated.
broadly
rule refers
to “statements”
their
describing
purpose
nature,
and
any
without
reference to the declarant’s status.7
(OEC 803(4)
See Kirkpatrick, Oregon Evidence at 523
“allows
statements by persons other than the
who is the
person
sub
treatment”).8
ject of
diagnosis
Bauman,
State v.
316, 319,
(1989),
8The federal courts and courts of other states have reached similar conclu (9th 1995)(“The See, Yazzie, e.g., 807, plain language sions. of circumstances, U.S. v. 59 F3d Cir * * * 803(4)1 application patient-declarants. does not limit its In most TFRE injured parent we believe the statements to a doctor a of an child easily qualify purpose obtaining proper could as a statement for the a medical (5th 1991) Co., 260, diagnosis.”); Zapata Wilson v. 939 F2d Cir Off-Shore (1998) (same); 671, Huntington, (“Young v. State 216 Wis 2d 575 NW2d attention, independently rely children cannot seek out medical but on their care parent’s obtaining necessary A takers to do so. interest in medical care for a child reliability.”). generally demonstrates fundamental indicia of Weinstein & See (2d 803.09(3] 1997): Berger, Federal § Weinstein’s Evidence at 803-43 ed physical “The statements need not refer to declarant’s own condition. relating symptoms, pain Statements to someone else’s or sensations are admis- sible, provided they are made for or treatment of person. patient usually relationship between declarant and will ** * distant, admissibility. relationship determine the state- As becomes reliable, ment becomes less weaker, both because the motive to tell the truth becomes faith, may stranger, good reliably not able to describe because even in be physical pain suffering intimate.” another’s as an *12 prosecution child, for sexual abuse aof the state at trial offered the of a testimony physician who testified that the child’s mother had told the physician that the child had been by babysitter’s boyfriend.9 abused her The defendant objected to that testimony hearsay, and the trial court overruled that On we objection. appeal, affirmed that ruling, the concluding physician’s recounting mother’s 803(4): statements fell within OEC objected only “Defendant testimony regarding medi- history, cal because it opposed ‘is from the mother as 803(4), child.’ Under OEC diagnosis statements made for medical by family treatment a member other than the person subject who is the or treatment are App admissible.” 98 Or at 319-20. the mere fact
Conversely,
that the patient’s parent
the declarant does not automatically establish the requisite
i.e., that “the declarant’s motive in making the
motivation —
statement
to the medical
must
provider
be to
treat
promote
State v.
ment or diagnosis.”
Newby,
97 Or App
601, 777
(1989).
P2d 994, rev den 308 Or
Rather,
as with
other
any
fact,
foundational
the
motivation,
declarant’s
which is the
of reliability,10
touchstone
must be assessed by the court on a
case-by-case basis.
apparent
published opinion
It is not
from our
whether the mother’s state
physician
ments to the
were based on the child’s statements to mother or on
However,
mother’s own observations.
clear that
our
review of
briefs Bauman makes it
present
only
was
mother
not
at the time of the abuse and that her
source
of information was the child’sstatements.
Legislative Commentary
803(4), reprinted, Kirkpatrick,
10 See
to OEC
(rationale
Oregon
admitting
strong
Evidence at 522
for
statements is “declarant’s
truthful”).
motivation to be
11Compare
Berger,
Evidence, 803.09(31,
&
§
Weinstein
Weinstein’sFederal
at
(“In
child,
surely presume
any
803-43
the case
a
of a
court would
the absence of
Yazzie,
part
parents.”)
motive to mislead on the
U.S. v.
That our in analogous Bauman. This case is to Bauman and to the double-hearsay hypothetical just except, in considered unlike exacting. party parent of must be When a seeks to introduce statement offender, guardian identifying proponent a sexual must demonstrate from they purpose the context and were made content of the statements for diagnosis of medical or treatment.” (8th 1996) See, U.S., e.g., Lovejoy (physician’s v. 92 F3d Cir testi mony, standing recounting mother’s statement that she had seen defendant over down, pulled had was admis child with an erection and the child’s underwear been 803(4)). sible under FRE patient/child cases, here was not the source of the those original leg” hearsay original Rather, the “first statement. by describing conduct, statement, child’s was made a third (Eddie) by party turn, was, recounted mother for the assisting diagnosis purpose in child’s and treatment. case, Here, is immaterial. as In this that distinction exception original Bauman, fell within an statement 803(18a)(b) hearsay and, thus, was sub rule —OEC — long mother’s statements to Jensen stantive evidence so similarly exception” “conform[ed]with an rule. to Jensen did so “conform” OEC 805.13Mother’s statements 803(4), just they as did the mother’s in that satisfied OEC Mother recounted Eddie’s com Bauman: assisting diagnosis purpose plaints child’s to Jensen for relating complaints, conduct, treatment; those child’s “symptoms”; and, as Jensen and related to child’s described they diagnosis pertinent confirmed, to her of child and were therapy. Cornett, need See Or her evaluation of the (statements made child’s sex abuse victim to at 281 identifying treating therapist her were admissible her abuser 803(4)). under OEC complaints recounting was for of Eddie’s
Mother’s assisting purpose in the and treatment of determining motivation, we must refer to mother’s child. were made.” circumstances in which those statements “the (1993). Barkley, Here, 420, 424, P2d 390 v. State *14 working specialized in adolescent sexual Jensen, who offenders, child after a referral testified that she evaluated therapy therapist “providing who had been from another sure, purpose for the Eddie did not make his statements to mother To be child, controlling. the dif obtaining but that is not Under OEC 805 treatment for do, “hearsay hearsay” may, fall under different within and often ferent elements of following Indeed, Commentary provides Legislative exceptions. to OEC 805 illustrations: incorporates example dying a declaration a declaration which “Another report police by against declarant. Still another is a accident interest another immediately after a collision. made that contains an assertion one driver utterance, report police may a and driver’s statement be an excited
The hearsay against police report be admissible as The should business record. Legislative objection prove utterance.” Com- truth of the driver’s excited 805, Kirkpatrick, Oregon mentary reprinted Evidence at 626-27. in to OEC family.” explained outset, At the Jensen to both child and purpose mother the of the evaluation: * * * explained “I process what the interview would be * * * about and what the purpose of the evaluation was for. was, “It it narrowly was focused to look at history sexual and potential acting future, [child’s] for out in the sexual acting out.” were, thus,
Mother’s statements
made in
of,
the context
and
by,
explanation.
Logan,
were informed
See State v.
(1991)
App 556, 562, 806
Or
P2d
rev dismissed
“A. Yeah.” testimony effectively prem-
Mother’s also refutes the underlying Judge ise dissent, i.e., Edmonds’s that mother’s statements to Jensen were somehow unreliable. See 164 Or (Edmonds, dissenting). why at 490 J., There is no reason seeking help mother, who was child, would lie in recount- ing complaints. every Eddie’s Indeed, mother had reason to accurately recount statements, Eddie’s and none to lie. Simi- larly, “reliability” Jensen had no reason to lie. It was that reality underlay credibility- the trial court’s ultimate based disbelief of mother’s denials at trial.14 admitting court,
The trial thus, did not err in treating the double as and, substantive evidence particularly, relying complaints on Eddie’s to mother as substantive had, evidence that child fact, masturbated presence. adjudication Eddie’s The trial court’s ofchild on the endangerment ultimately credibility count rested on a deter i.e.,that that evidence was more than the credible mination — only person may who have had even a colorable reason for fabrication- sibling dynamics However, noted, have been Eddie. child concedes on —would 803(18Xa). appeal that Eddie’s statements “conform with” OEC *15 give
family review, members’ denials. On de novo we sub- credibility deference to a trial determina- stantial court’s e.g., Dept. See, G.P., 313, ex rel Juv. v. 131 Or tions. State (1994) (Haselton, concurring). 322-23, J., P2d 885 Accordingly, adjudication endangering affirm the on the we count. primary two The
We turn to the harassment counts. testimony respect with to those counts was Jensen’s evidence on, had that he had urinated that child admitted her on, feces Eddie. Child contends those admissions rubbed support adjudication on the were insufficient to an harass they counts because were not corroborated. See ORS ment (“nor 136.425(1) only warrant is a confession sufficient to proof other ofthe defendant without some conviction committed”). disagree. crime has been We proved hearsay endanger- The same double sufficiently child’s count admissions ment corroborates complained underlying count. the harassment Eddie conduct masturbating only in front of him mother not about child alleged about in the harassment counts. but also the conduct Eddie’s same reasons that the trial court treated com- For the plaints respect endangering as credible evidence with properly complaints as credible and count, it viewed those respect sufficient corroboration child’s admissions Lerch, 377, the harassment counts. See State v. 136.425(1) (1984) (“some proof’ P2d 678 ORS “means jury may enough evidence from which the draw that there prove crime tends to that a has an inference that establish committed”). been Affirmed. dissenting. J.,
EDMONDS, properly majority holds that the trial court under OEC double admitted evidence of juvenile adjudication offender led to of child a 805 that endangering committing the offense of what would be for 163.575, and two counts of minor, a ORS welfare of 166.065, I harassment, if he were an adult. Because ORS majority’s under OEC is erroneous believe that the decision precedent that will result the convic- establishes evidence, tions of others based on unreliable I dissent. facts in For of the discussion of the this *16 case, I child will refer to the as to adjudicated Christopher, offenses, victim brother, alleged his the of the as 11-year-old Eddie, and licensed to their mother as “mother” clinical court about mother’s social worker who testified in state- only ments to her Jensen. direct evidence that as the to the majority adjudicate Christopher relies on endanger- ing is Jensen’s recital mother’s statements to her. charge of regard charges, majority With to the harassment the deems testimony Jensen’s sufficient corroboration of Christopher’s 136.425(1). testimony, confession under ORS In her Jensen testified of about mother’s what Eddie had told report her conduct, Christopher’s regarding including the details of the incidents that led to the At adjudications. hearing, the both mother and Eddie denied the making Jensen attributed to them. objected to Jensen’s testi- Christopher mony on the of grounds hearsay. double His is well- objection 802,1 taken under OEC the testimony unless as an qualifies exception to the rule. The majority holds that the evidence falls within an exception to OEC 802 because mother’s state- ments were to Jensen made purposes for of medical diagnosis 803(4)2 under OEC and Eddie’s statements mother were to 803(18a)(a) complaints of sexual misconduct under OEC and (b).3 Because OEC 805 says that included within “[hjearsay 1 “Hearsay provides, except provided OEC 802 [OEC is not admissible as in provided by or as otherwise law.” 803(4) provides: OEC diagnosis, “Statements made for medical or of treatment and history, describing past symptoms, sensations, present pain medical or or or or inception general the or character cause of of the external source thereof inso- reasonably pertinent far as or treatment.” 803( 18a) provides, part, in “(a) complaint complaint A of sexual misconduct of abuse as defined in by alleged ORS 419B.005 made the witness after the commission mis- (b) Except provided paragraph conduct or abuse at issue. of this subsec- tion, complaint such must be the fact evidence confined to that the was made. * * * * “(b) by A statement made a child victim if the child testifies at * * However, subject proceeding *. a and to cross-examination when wit- * * * witness, years age may ness under 12 a the statement is unavailable as only time, proponent
be if admitted in evidence establishes that content provide reliability, circumstances the statement indicia of if 802] is not excluded under each part [OEC an set forth exception combined statements conforms with 804],” reasons that Jensen’s testi- majority [OEC 803 or mother’s to her of what Eddie said to mony report about disagree is admissible as I reasons mother evidence. that follow. APPEAL THE STATE’S CHANGE OF THEORY ON
I. review of whether has committed Christopher Our . to the trial offenses is de novo on the record made alleged on evidence that we hold to be admissible. court and based 419A.200(5). with the difficulty The most troubling ORS evidence is in its de novo review of the majority’s reasoning conceded ground it affirms the trial court on a hand, the other below, appeal.4 state but asserted on On made by it considers to be a concession accepts it what Eddie’s statements appeal counsel on Christopher’s 803(18a) ana- under OEC to avoid mother were admissible which it relies for an upon whether the sole evidence lyzing *17 reliable, even of the harassment is adjudication charge at the that the argued hearing counsel though Christopher’s the two the welfare of a minor and “allegations endangering not come in under that charges exception.” harassment do horses change the state to majority’s reasoning permits The for precedent pur- in mid-stream and creates an untenable The to our de novo review. bottom subject of other cases poses novo, ought par- de we to hold line is that when we review Otherwise, that make below. we they ties to the concessions result of the benefits depriving opposing parties risk they and which relied. upon from concessions mind, I turn the record to With that perspective court, told the trial below. counsel Christopher’s evidence of the act of abuse or sexual criminal trial that there is corroborative participate alleged perpetrator’s opportunity in the con- conduct and of the reliability possesses of as is constitution- that the statement indicia duct and ally required to be admitted.” 358, 360, Hickmann, Supreme 540 P2d v. As the Court said State Generally, (1975), scope “Appellate on limited in their of review. courts are civil, theory upon case, it which appeal should be heard on the same criminal or important except presented below[ where considerations in the court was public ] — (Citation policy of a case before the court.” are encountered in the solution omitted.) mom, from “Since some the statements will be Eddie to counselor, hearsay mom to those are and both statements so, therefore, so, both of those are therefore, both to fall hear- those statements have within a say exception. I would state-
“And submit the Court mom’s any exception. ments to counselor do not fall under And my is the guess going argue state’s it falls under * * * some sort of medical exception.
«* * * * * injury
“I think the most relevant is cause source of a lot which is used of times sex cases where the vic- abuse saying they’re tim why injured and how were they injured. This completely My case is different. client isn’t saying injured that he was and his behavior caused his own so, therefore, injury. that, I And feel all none of the state- diagnosis exception.” ments fit under the medical comments, In response to these district deputy court, the trial “I I attorney told would concede that think of it.” trial Later, The court responded, “Okay.” after Christopher’s counsel reiterated that the state not con- did tend that the evidence fell within the statements made for remarked, medical trial court exception, “Right, doesn’t within fall it diagnosis exception, medical and if were offered, being would be offered —.” only impeachment parties and the court on then embarked a discussion about the admissibility of on testimony Jensen’s other At grounds. one point, said, the deputy attorney really district “what we confession, have here is a merely we’re corrob- trying to orate the ruled, confession.” the trial court “I’m Eventually, statements, going to receive the and then we can a lit- argue tle bit later about for purpose.” what
The majority quotes portion child’s brief *18 appeal support of its contention that child’s con- purported in his brief cession controls. The full is as quote follows: hearsay, first strand “The Eddie’s to his 803(18a)]. pursuant mother were [OEC admitted to The child not challenge ruling appeal. does on Ms. Jensen’s testimony of the properly mother’s statements were admit- through prior ted as statements. impeachment inconsistent State’s evi- object not for the child did Trial counsel the tes- impeach statements to inconsistent prior dence of mother, the court in omitted]. timony [citations If fact evidence, testimony as substantive relied on Ms. Jensen’s (Footnote emphasis omitted and ruling was error.” added.) by parties’ agree bound should not be I that we statutory applicability concerning rule arguments of a agree general, interpreting a trial that, I it. also when the one on basis from on a different court can be affirmed control here. this de those rules it ruled. Neither of which requires that we hold both trial, fairness fundamental novo apparent parties It is made below. to their concessions testimony child’s to corroborate Jensen’s the state offered solely prosecution on the evi- its did not base confession and Christopher majority relies to find that dence on which the apparent took the the that child did not meet It is also the offenses. committed testimony position that Jensen’s below 803(4) the state requirements 805, and and OEC of OEC prosecutions subject agreed. on criminal to Defendants by depend made appeal on concessions should be entitled by Christopher Any on made at trial. concession the state necessarily qualified the state. appeal concessions of is applied in an even-handed should be our review Because pre- permit justice, the state to I not achieve would manner to Judge appeal. theory Wollheim’s advanced on first vail on adjudicate approach the case on because it would is correct the benefit of receive Should the state record made below. appeal, argument that for demands then fairness made on its admissibility review, issue of the of de novo statement mother’s to mother and statement Eddie’s Christopher’s properly us before based are both Jensen argument to the trial court. entire (b) 803(18a)(a) AND
II. OEC principle predicated that before on the OEC 805 [must] chain admitted, link in the “each can be the whole Legislative bear[ ] mark of trustworthiness.” a sufficient Kirkpatrick, reprinted Commentary Laird C. to OEC 1996). (3d Eddie’s Oregon I first to Evidence, ed turn admissibility purported under and its to mother statement 803(18a)(a). exception rule in OEC *19 803(18a)(a) (b) and does not reflect a long-standing exception to the hearsay “firmly rule that is rooted” in the law. common (1992). Renly, 453, 460, 827 State v. 111 Or P2d 1345 For reason, that it is on the same constitutional footing as the residual hearsay that was in exception issue Idaho v. (1990). 805, 110 497 US L Wright, S Ct 111 Ed 2d 638 In the Wright, trial court had admitted into evidence statements that a two and one-half-year old declarant had made to an examining pediatrician. The court in Renly, citing Wright, noted that “[hjearsay generally unreliable, because the declarant is not available for cross-examination that could uncover inaccuracies and other factors on bearing truthfulness Renly, trustworthiness.” 111 App Or at 460. Because the residual hearsay exception in Wright lacked the tradition of reliability that the supports admissibility of under a firmly rooted hearsay exception, Supreme Court reversed the defendant’s conviction on the ground that the defendant’s constitutional right confron- tation had been denied.
In Renly, we said that the rationales underlying Confrontation Clauses and the rule against are hearsay sim- iliar. The admission of hearsay is predicated showing particularized guarantees trustworthiness, and a trial court should admit hearsay evidence if it only is trustworthy. case, the defendant argued that the trial court should have excluded under Wright the evidence of detailed state- ments made aby child victim to her mother which were tes- tified to in court the mother. We held that the provision of 803(18a)(b) OEC satisfied sixth amendment and Oregon con- stitutional provisions regarding right to confront one’s accusers. We then turned to the issue of whether the prof- fered evidence had particularized guarantees of trustworthi- ness in of the light requirements rule, of the inasmuch as it 803(18a)(b) lacked reliability. inherent We noted that OEC was enacted to address some of the difficulties with Oregon’s residual hearsay and that it exception was the intention of that an legislature accused not be convicted solely on Minutes, basis of hearsay. See, Senate e.g., Committee on the Judiciary, 27, 1989, February p of Assistant (testimony Division). Administrator of the Children’s Services As a 803(18a)(b) result, imposes particular requirements inherent in other supplant reliability exists (18a)(b), Under the victim exceptions to the rule. or, if cross-examination, subject must be unavailable cross-examination, there independent must be corroborative than of the complaint evidence before more evidence In Renly, of sexual abuse or conduct can be admitted. victim hear- was of the details of the there no corroborative evidence say report, accordingly, we reversed.
Here, majority fails to acknowledge problem 803(18a)(b) per- under OEC that exists because Jensen was *20 mitted to the of what Eddie told mother. testify to details Eddie’s for cross- According majority, availability to the of testimony examination about the details makes Jensen’s 803(18a)(b). App the offenses under OEC 164 Or admissible n at the at 475 3. The with that is that problem reasoning Eddie denied that con- adjudication hearing Christopher’s that reported duct had occurred and he had that conduct con- mother. Eddie’s of the details of the sexual alleged report reliable. it could inherently Although duct mother is not been could by testimony thereby have corroborated his rule, his have met the corroboration of the requirements was Eddie in his tes- not corroborated because denied report mother he had been abused timony sexually that reporting had been to sexual conduct subjected by Christopher. as a satisfied the confron- appearance Eddie’s witness the not requirement tation of rule but the corroboration requirement. the of trust- particularized guarantee
What affords 803(18a)(b) that is the worthiness under OEC corroboration the complain- occurs as the result of cross-examination of the witness evidence that is ing corroborating independ- or from case, the has ent of the In the trier of fact hearsay. typical the the testi- hearsay before it both the of details and report the Under mony of the witness about details. complaining victim circumstances, testimony those of satisfies This is different corroboration of the rule. case requirement is no had no witness. There complaining because state supports adjudica- evidence from Eddie’s that testimony testimony That Jensen’s the sole evidence tions. leaves offenses, is uncor- but evidence about details tes- independent other evidence of Jensen’s any roborated timony. majority Christopher’s adjudication affirms evidence, in the hearsay any double absence of corroborative a intended to avoid legislature expressly result 803(18a)(b). requires under OEC Because OEC 805 admissible, hearsay underlying layers before double is both sufficient trustworthiness, must marks Jensen’s tes- have of Eddie’s the details of the incident timony report about (“[t]he Vosika, n inadmissible. See 83 Or at 309 trust- reliability worthiness and of a statement is relevant to all exceptions hearsay (emphasis original)).5 rule” 803(4)
III. OEC
Even if Eddie’s statements
to mother
admissible
are
803(18a)(b),
under
layer
the second
of Jensen’s
not
report consisting mother’s statement
to her is
admis-
803(4).
sible under OEC
Statements made
purpose
for the
medical
are inherently
treatment
reliable because a declar-
ant of medical information
not
does
tell falsehoods
ordinarily
to a medical
when
provider
seeking treatment.
State v.
45,
Moen,
(1990),
“(a) The statement must be ‘made for of medical treatment’; diagnosis or
“(b) The statement must describe or relate ‘medical his- *21 tory, present sensations, or past symptoms, pain or or or the inception general or of [or] character the cause external thereof; source “(c) reasonably The statement must ‘pertinent diag- be to ”
nosis or treatment.’ of the governs terms standard of review that our 803(4), review of the admissibility of evidence under OEC it is established that requirements
“[w]hether a statement the of meets OEC 804(3) preliminary question is a of fact for the trial court. 104(1); [420,] Barkley, v.] [846 315 Or P2d [State 427 390, (1993)]; Booth, cert US v. Or App den 510 837 State 124 282, 81, 286, (1993), P2d 862 518 rev den 319 Or cert den Kirkpatrick, Oregon (stating at 5 See also Evidence that under OEC 803(18a)(b) testifies, appear that cases where the child the rule to sat would ‘Tiln isfy confrontation, right provided the of assessment made the relia a careful of added)). bility (emphasis statement” of (1994). 115 S If there is in the US Ct 372 evidence by pre- from which trial court have a record could found ponderance of the that a were evidence child’s statements treatment, made for the of medical Booth, ruling. we affirm the court’s at 286.” App (1997). 86, 92, P2d 570 Mayer, State v. Or Here, there is no evidence that Eddie’s statements about purpose made for details of the incidents were to mother procuring treatment, and is no evi- of his own medical there pro- dence mother’s statements to were made to Jensen Christopher. cure treatment for either Eddie or medical Christopher 13-year-old socially child is a immature hemophilia, post-traumatic-stress suffering disorder, from anxiety phobia. separation and school The record does not any qualified the above indicate that Jensen is medical conditions. She is a licensed clinical social to treat
worker primarily problems who works adolescent with behavioral Christopher sexual offenders. She came into contact receiving involv- after a referral from a mental health service they ing Christopher. appeared result, As a mother and Christopher’s sex- office, her and she made an evaluation of history she Mother testified that ual told and sexual behavior.
Jensen, sexually acting
“I out expressed concerns about Chris’s boy friend] former he was [mother’s because of Dennis to going through puberty explain and I don’t know how changes boy.” sex of life to a of sex-
Mother went various instances on describe by Christopher, Eddie. some of which involved ual conduct According Jensen, Chris- of those instances involved one masturbating presence. topher testified in Eddie’s Jensen explained purpose of the evalua- she to mother history narrowly tion focused to look at sexual “was acting Christopher’s potential future, sexual in the out hearsay testimony acting typical involving In the case out.” history physician procures a offenses, the victims of sexual from the victim order diagnosis about to make a medical sexually informa- abused. The whether the victim has been helps physician cause tion elicited evaluate *22 methodology. through symptoms The a differential victim’s patient accurately speak truthfully is motivated diagnosis depend, part, because the treatment at least recognizes Also, on the information communicated. the law enough depend that a fact reliable ical trustworthiness to constitute an inadmissibility on as a basis for a med- diagnosis guarantees and treatment has sufficient
exception general hearsay.6 presents entirely This case an different situation polices underlying typical that is inconsistent with the given purposes prop- case where information erly for medical is 803(4). under First, admitted mother did not describe the details of her sons’ conduct for of a physical medical or treatment of a or mental disor- help der. She was there because she wanted information and regarding on what she could do the conduct of her children. inquiry comparable parent going Her family to a to a school or parent
counselor to obtain assistance about how to effectively. adju- Second, more her statements that led to the Christopher’s dications did not describe Eddie’s or medical symptoms, pain Although or the cause thereof. the details of Christopher’s probative conduct could have been to an eval- uation of whether he will become a criminal sex offender in they future, were not offered so that Jensen could make a diagnosis of a medical condition from which he suffers or to provide previously diagnosed treatment for a disorder. somebody explain words, mother’s “I wanted the facts of I, life to Chris because I didn’t understand a lot of what was * * * going going through puberty on with him. He’s I don’t nothing puberty, nothing.” typical know about male In the part case, the conduct of a sexual offender is of the medical history related the victim that so the victim can receive proper alleged medical Here, treatment. the conduct of the help offender was related in an effort to seek nonmedical alleged Consequently, offender. mother’s statements do requirements not meet either the second or third articulated guarantee reliability. in Moen which policies underlying reliability An instructive discussion of the of state purpose diagnoses ments made for the of medical can be found in United States v. (8th 1985). Renville, 779 F2d 430 Cir of the evidence on the declar- reliability hinges *23 motivation,
ant’s
not the
provider’s expression
treatment
Logan,
reason
involvement. See State v.
105 Or App
(1991).7
556, 562,
137,
P2d
806
rev dismissed
The second
that a fact reliable
policy
enough for a medical
is reliable
diagnosis
enough
escape
evidence,
against hearsay
missing.
is also
proscription
Eddie,
The details of the incident came
lips
from
who
had
medical
treat-
accurately.
no motivation to
His
speak
ment or
was not
on the information dis-
diagnosis
dependent
Moreover,
closed.
Jensen did not elicit the information to
Eddie,
make medical
the initial declarant
diagnosis
a
about
testified,
of the information. As she
her focus was on Chris-
case,
this
has not met its
topher. Under
facts of
state
of the evidence
by
preponderance
burden to demonstrate
a
7
Barkley,
(holding
whether a child made state
Accord
IV.
history regarding
OEC 805 is not without
when it is
to stack
for medical treat-
appropriate
hearsay upon hearsay
purposes.
legislative commentary provides
ment
two
of when double
will be admissible and con-
examples
cludes that
the rule is intended to be in accord with current
Oregon
Kirkpatrick,
Evidence at 627. An
practice.
Oregon
exploration of those
is instructive as to when OEC
examples
to be
context.
ought
employed
this
The first
example
(1965).
Dowsett,
Mayor v.
In summary, this case an issue presents important about what evidence can be the for a juvenile adjudica- basis tion anor adult conviction for a criminal offense. The legis- 803(18a)(a) (b) lature’s intent regarding OEC is clear. It did not intend that alleged offenders could be convicted on hearsay corroboration, alone and without any which what occurred this case. It is also that mother’s apparent report to Jensen does not satisfy underlying policy justifications 803(4) Thus, for OEC for the reasons above. both expressed layers of lack sufficient hearsay guarantees of trustworthi- Admissibility ness. of evidence under OEC 805 is predicated hearsay having link in the on each chain of sufficient indicia Only reliability. course, then can the whole be admitted. Of inadmissibility only link results when one fails to survive scrutiny. light integrity judicial the fact that the adjudications process depends on and convictions that are majority’s reasoning evidence, based on reliable is not only disturbing significant it but creates a and erroneous precedent admission of unreliable sex prosecutions. offense related
I dissent. dissenting. ARMSTRONG, J., Judge I dissent for the reasons stated in Wollheim’s parts Judge dissent and in III and IV of Edmonds’ dissent. dissenting. WOLLHEIM, J., agree majority I do not with the that the trial court’s judgment “right in favor ofthe state can be affirmed as for the wrong reasons” on the a reason that the basis of state con- wrong in ceded to be the trial court but now seeks to revital- appeal. ize on disagree initially majority’s
I essential starting premise “right wrong that the so-called for the rea- applied son doctrine” intended to be has in a was ever been thing say appellate situation such as this. It is one that an may court dence or other sometimes sustain a trial court’s admission of evi-
ruling for reasons that differ from those on ruling quite thing say which the that a was It is another based. party may expressly any partic- disavow reliance on a *25 ground ruling thereby trial, ular at and for circumvent or for a factual or opposing party’s opportunity the abort need or successfully legal response, may but then seek an affirmance by relying ruling pre- appeal ground on the for the that it viously disavowed. given majority’s apparently
Even the broader view “right appropriate wrong reason doc- uses of for the agree trine,” however, I am nevertheless unable to with the majority majority result the reaches here. The states: that applying for necessary practical predicate “The sup- adequately developed record is is that the principle * * * If, however, the alterna- grounds. alternative port the and, admis- particularly, ground tive for affirmance — appeal for the first time on of evidence —is asserted sion could have devel- appears opposing party that the and if it raised at differently ground had that been oped the record reliance on the trial, principles preclude preservation then (citations at 478 new, ground.” App Or alternative omitted). that states that certain factual matters majority further 803(4) “must be to the integral application are at case-by-case App the court on a basis.” assessed (footnote omitted). statements, those Notwithstanding it not believe however, “do[es] that majority postulates develop- affected the materially the state’s concession of OEC (in)applicability ment of the record with to the respect 803(4)” in this case. 164 Or at 478. The App question, course, belief? Child had majority’s is what is basis for no make a alone his best case —about reason to record —let an the state’s concession and its stated bases for issue that fact, if child offering the evidence made irrelevant. record, make such a then the trial court would attempted to the state’s any have such effort based on prevented concession.
Finally, majority insists one of unnecessary of the doctrine it invokes is “to avoid an majority imply remand.” 164 Or at 478. The proceeds that a and remand here would be without purpose, reversal for the because the state could offer same evidence simply retrial, any properly reason at and it would be “right” received, to the same ultimate result as presumably leading My disagreeing the one under review. reason for my conclusion is the ground majority’s complement for the Just as this grounds. reasons for with its other disagreeing func- the state’s tactic to obscure our court should not permit error, not deter we should identifying remedying tion of how by speculating that function performing ourselves from functions. Once later its perform appropriate state will us, remanded, state, it not up we have reversed and *26 500
to decide whether there will be further any proceedings at which to use the evidence.1 alternative,
In the once we have reversed and remanded, the state would be precluded arguing from disputed evidence was admissible under the medical diagnosis exception rule due to the law of the Pratt, State v. case doctrine doctrine. That was described (1993) 561, 569, P2d (quoting approval Co., from Simmons v. F.N. Ins. Wash. 164, 166, 13 P2d Or (1932)): “ general ‘It is a principle recognized law and one well ruling this state that when a or decision has been once court, made in a case an it particular appellate while cases, may binding be overruled in other it is and conclusive upon both the inferior court in any steps proceed- further ings in the litigation upon appellate same court any subsequent appeal proceeding itself or other ” review.’ I respectfully dissent. given enough thought apparent It far that the state has to whether from proceed how in a matter like this one.