State ex rel. Juv. Dept. v. Pfaff

• Decision Date: 22 December 1999
• Citation: 994 P.2d 147,164 Or. App. 470
• Parties: In the Matter of Christopher Pfaff, a Minor Child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Christopher PFAFF, Appellant.
• Court: Oregon Court of Appeals

994 P.2d 147

164 Or. App. 470

In the Matter of Christopher Pfaff, a Minor Child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Christopher PFAFF, Appellant.

(9703-80720; CA A99785)

Court of Appeals of Oregon.

Argued and Submitted March 17, 1999.

Resubmitted October 13, 1999.

Decided December 22, 1999.

Lisa Ann Kay, Palm Beach, FL, argued the cause for appellant. With her on the brief was Lynn M. Travis.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Presiding Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, and BREWER, Judges.

Resubmitted En Banc October 13, 1999.

HASELTON, J.

Child appeals from the juvenile court's judgment that determined that he engaged in conduct that, if committed by an adult, would constitute two counts of harassment, ORS 166.065, and one count of endangering the welfare of a minor, ORS 163.575. Child contends that the trial court erroneously admitted certain hearsay testimony pertaining to the endangering count and that, without that testimony, the state's proof as to that count was insufficient. Child further contends that the state failed to adduce sufficient corroboration of child's admissions of the acts constituting harassment. On de novo review, ORS 419A.200(5), ORS 19.125(3), we affirm.

Child, who was 13 at the time of the juvenile hearing, lived with his mother, his 11-year-old brother, Eddie, and his mother's boyfriend. As described more fully below, in March 1997, both child and mother spoke with Wendy Jensen, a licensed clinical social worker who works primarily with adolescent sexual offenders, about child's interactions with Eddie. The purpose of those interviews was to evaluate child's sexual conduct and his potential for "acting out" in the future. Following those interviews, Jensen produced an evaluation, stating that child may have engaged in "reportable" sexual conduct. As a result of that report, Oregon State Police Detective Kenneth Poggi interrogated child for approximately two hours at his middle school on May 9, 1997. Subsequently, in June 1997, the Multnomah County Juvenile Department filed a petition, alleging, in part:

"ENDANGERING THE WELFARE OF A MINOR * * *

"[Child], on or between January 1, 1996, and May 5, 1997 in the County of Multnomah, State of Oregon, did unlawfully and knowingly cause, Edward Pfaff an unmarried person under the age of eighteen years, to witness an act of sexual conduct, to wit: masturbation, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

"* * * * *

"HARASSMENT * * *

"Between the 1 day of January, 1996 and the 5 day of May, 1997, in the County of Multnomah, State of Oregon, [child] did unlawfully and intentionally harass and annoy Edward Pfaff, by subjecting Edward Pfaff to offensive physical contact by urinating on him.

"* * * * *

"HARASSMENT* * *

"Between the 1 day of January, 1996 and the 5 day of May, 1997, in the County of Multnomah, State of Oregon, [child] did unlawfully and intentionally harass and annoy Edward Pfaff, by subjecting Edward Pfaff to offensive physical contact by smearing feces on him."¹

The juvenile court hearing on the petition occurred September 10, 1997. At the outset, child's counsel moved unsuccessfully to suppress child's statements to Poggi on the 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 by Jensen. Jensen stated that child had admitted to her that he had urinated on Eddie and wiped feces on Eddie. Jensen also testified, over child's hearsay objections, that mother had told her (Jensen) that Eddie had complained to mother about child masturbating in front of him and urinating and smearing feces on him. Child, Eddie, and mother all testified at the hearing and denied that the alleged conduct had occurred.² The trial court concluded:

"I am satisfied beyond a reasonable doubt that the remaining three allegations occurred which was * * * the Endangering of the Welfare of a Minor and the two Harassment charges. I'm satisfied about those charges, quite frankly, because there's a great deal of corroboration on all of those charges, including the admissions made to the therapist in this particular case."

On appeal, child argues that the trial court erred in (1) denying his motion to suppress his statements to Poggi; (2) admitting as substantive evidence Jensen's double hearsay recounting of mother's recounting of Eddie's statements to her; and (3) concluding that the evidence warranted adjudication on the endangerment count and the two harassment counts. We do not address child's first argument because his statements to Poggi are, ultimately, immaterial to our disposition. As amplified below, regardless of the admissibility of those statements, the remaining evidence warrants adjudication on all three counts.

We begin with the endangerment count, which alleged that child masturbated in Eddie's presence. The only direct evidence of that conduct was Jensen's testimony, on which the trial court expressly relied:

"[By Jensen]: As far as sexual acting out that [mother] stated [child] had engaged in, she stated that she had received complaints about sexualized behavior from both her other son and from the school.

"* * * * *

"She stated to me that the other brother, Eddie, had complained of [child] putting his finger in his, Eddie's, anus, that he had smeared feces on Eddie, that he had exposed himself to Eddie, and that he had violated Eddie's privacy in the bathroom by barging in on him. That he had urinated on him in Eddie's bed and that he had masturbated in front of Eddie. That is what she, what [mother] told me."

Child contends that, without that testimony, the evidence could not support an adjudication on the endangerment count. The state acknowledges that "the court testimony which definitively establishes the appellant's conduct towards his brother was the therapist's recitation of the sexualized conduct as described by appellant's mother to Jensen."

At trial, child objected to the quoted testimony as double hearsay. Although child ultimately conceded that Eddie's statements to mother fell within the "sexual abuse" exception to the hearsay rule, OEC 803(18a)(a), (b),³ he argued that the second leg of the hearsay, mother's statements to Jensen, did not fall within any exception to the hearsay rule and, thus, could not be treated as substantive evidence. See OEC 805 ("Hearsay included within hearsay is not excluded under [OEC 802 of the hearsay rule], if each part of the combined statements conforms with an exception set forth in [OEC 803 or OEC 804]."). The state, after initially asserting that mother's statements to Jensen regarding Eddie's complaints fell within the "medical diagnosis or treatment" exception, OEC 803(4), ultimately conceded that that exception was inapposite. The state asserted, however, that mother's statements were admissible as a prior inconsistent statement of a witness, OEC 801(4)(a), as an admission by a party-opponent, OEC 801(4)(b), or as a statement against interest, OEC 804(3)(c). The court ruled that the testimony was admissible, without specifying the basis of that ruling, and then, as noted, relied on the testimony as substantive evidence.⁴

On appeal, child reiterates his argument that mother's statements to Jensen recounting Eddie's complaints to her did not fall within any exception to the hearsay rule. The state, which conceded at hearing that the medical diagnosis or treatment exception was inapposite, now invokes that exception as a basis for affirming the trial court's admission of, and reliance on, that testimony as substantive evidence. The state asserts, alternatively, that mother's statements to Jensen constituted admissions against penal interest, OEC 804(3)(c), or, in all events, were admissible under the residual hearsay exception, OEC 803(26). For the reasons that follow, we conclude that mother's statements to Jensen recounting Eddie's complaints were admissible under the "medical diagnosis or treatment" exception to the hearsay rule and, thus, that the trial court did not err in treating that testimony as substantive evidence.

We first consider whether the state, having conceded the inapplicability of OEC 803(4) before the trial court, can invoke that exception on appeal. The state, reciting the familiar "right for the wrong reason" proposition that we will affirm an evidentiary ruling on any correct alternative basis, see, e.g., State v. Nielsen, 316 Or. 611, 629, 853 P.2d 256 (1993), contends that its prior concession was immaterial.⁵ Although the state's disavowal of its concession is troubling, we agree that, on this record, the concession is not preclusive.

Our conclusion in that regard is ultimately grounded on the pragmatic principles underlying the "right for the wrong reason" doctrine and, more broadly, preservation requirements. In Nielsen, the court explained the reasoning underlying the "right for the wrong reason" doctrine. There, the court sustained the trial court's admission of a hearsay statement notwithstanding that the trial court relied on "improper considerations" as support for its ruling. 316 Or. at 629, 853 P.2d 256. In so holding, the court quoted with approval the rationale articulated by the United States Supreme Court in Securities Comm'n v. Chenery, 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943):

"`[W]e do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct "although the lower court relied upon a wrong ground or gave a wrong reason." * * * The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a...