State ex rel. Juv. Dept. v. S.P.

• Decision Date: 20 February 2008
• Docket Number: 2004812301.,A129435.
• Citation: 218 Or. App. 131,178 P.3d 318
• Parties: In the Matter of S. P., a Youth. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. S. P., Appellant.
• Court: Oregon Court of Appeals

178 P.3d 318

218 Or. App. 131

In the Matter of S. P., a Youth STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. S. P., Appellant.

2004812301.

A129435.

Court of Appeals of Oregon.

Submitted on Record and Briefs September 18, 2007.

Decided February 20, 2008.

Karen S. Torry, Portland, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Metcalf, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

HASELTON, P.J.

Youth was found to be within the jurisdiction of the juvenile court for committing acts that, if committed by an adult, would constitute first-degree sexual abuse, ORS 163.427, and first-degree sodomy, ORS 163.405. On appeal, youth argues that the juvenile court improperly admitted into evidence certain hearsay statements made by the three-year-old complainant, N, in violation of OEC 803(4), OEC 803(18a)(b), and the Sixth Amendment to the United States Constitution, as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As explained below, we conclude that, under Crawford, the juvenile court erred in admitting testimony recounting statements that N made during an interview conducted by staff at the CARES¹ Northwest program, in which he described the alleged abuse. On de novo review, we conclude that (1) notwithstanding that error, the properly admitted evidence in the record establishes, beyond a reasonable doubt, that youth engaged in conduct that, if committed by an adult, would constitute first-degree sexual abuse; but (2) that error compels reversal and remand with respect to the sodomy-related allegations of the delinquency petition. We therefore reverse in part and remand.

We review the facts de novo and the legal issues as a matter of law. ORS 419A.200(6). On June 10, 2004, the then three-year-old victim, N, was visiting his grandmother's house, while youth, who was 13, also was visiting the house. N and youth were together watching television in a bedroom while the adults were in another room. That evening, as his parents were putting him to bed, N said that youth had touched his penis and that he did not "want to bite [youth's] penis." When his father asked N to show him where youth had touched N, N put his hand down the front of his diaper, touching his penis.

N's father called the Department of Human Services (DHS) for advice and was told not to question N but, instead, to take N to his pediatrician "for a referral to CARES Northwest." The following day, N's mother took N first to his regular pediatrician's office, but N did not make any statements to the pediatrician about being touched. The pediatrician advised N's mother to schedule an evaluation with CARES.

Mother contacted CARES and recounted to a CARES intake worker what N had reported. The intake worker at CARES also spoke with a DHS representative, McCarthy, who indicated that she would fax a report to CARES and would cross-report the matter to the Multnomah County Child Abuse Team. CARES then convened a team staffing and discussed the case. The resulting intake summary indicated that, because N had not revealed any abuse when examined by his pediatrician and "because DHS needs clarification of the allegations," N "could be evaluated at CARES NW." The intake worker then contacted N's mother and, due to a cancellation, was able to schedule an evaluation for the same day. The intake worker also called DHS to confirm that McCarthy would attend the evaluation.

The evaluation at CARES was attended by McCarthy and another DHS worker, as well as Clackamas County Sheriff's Deputy Krummenacker, who was present "as a courtesy to the Portland Police Bureau." The DHS workers had another meeting scheduled and did not stay for the full evaluation, but Deputy Krummenacker remained throughout, monitoring the initial taking of information through a one-way mirror, and listening by microphone to the subsequent physical examination and interview of N.

N was examined by Dr. Heiferman, a pediatrician, and interviewed by Findlay, a social worker. Because of N's age, both the exam and the interview were conducted in an exam room.² Heiferman conducted a "head to toe" physical exam of N and found his physical condition to be normal. She also interviewed N, doing what she referred to as a "body review," which involved asking him if anyone had hurt various parts of his body, such as his eye, his throat, his neck, and his belly. He responded "no" to those questions. When asked if anyone had touched his penis or buttocks, he also answered "no." When asked if his mom was worried about him, he answered "no" again.

When N continued to respond with many "no" answers to various questions about his home and friends, in what Heiferman considered to be "patterned responses," Findlay took over the questioning, in order to help break the pattern. Findlay told N that N's mother had told Findlay that she was worried that someone had touched his penis, and asked N if anyone had done that. N responded that youth "already did" and that youth "was trying to suck it" with "his mouth." When asked if youth had sucked it, N responded "yes." N further indicated to Findlay that youth had grabbed N's crotch.³ At that point, N asked for his mother, and the interview ended.

After the interview, the CARES evaluation team met to discuss the case. Deputy Krummenacker was a member of the team but did not participate in making treatment recommendations. Heiferman's diagnosis was "highly concerned for sexual abuse." After that meeting, N's mother was provided with an evaluation summary. N's mother then was joined by Deputy Krummenacker "to discuss the ongoing investigation." The CARES evaluation team recommended no further contact between N and youth, as well as monitoring N's behavior, but the team did not recommend therapy at that time, given N's young age. The evaluation summary further indicated that the team "recommend[ed] further investigation by DHS and law enforcement into these allegations of abuse."

Detectives assigned to the Multnomah County Child Abuse Team, who received the CARES evaluation report, subsequently interviewed youth. Youth, after initially denying any sexual contact with N, ultimately admitted both to intentionally touching N's penis out of sexual curiosity and to sucking on N's penis.

The present delinquency proceeding ensued. At the outset, the parties stipulated that N was unavailable as a witness. The state indicated that it intended to introduce testimony recounting N's statements during the CARES interview pursuant to either, or both, OEC 803(4), the "medical diagnosis or treatment" hearsay exception,⁴ and OEC 803(18a)(b).⁵ The state further asserted that testimony recounting N's statements to his parents describing the alleged abuse was also admissible pursuant to OEC 803(18a)(b). Youth objected on the grounds that (1) the testimony recounting N's statements either during the CARES interview or to his parents was inadmissible under the Oregon Evidence Code and (2), alternatively, citing Crawford, hearsay recounting of N's statements during the CARES interview would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution.

The juvenile court concluded that testimony recounting N's statements to his parents was admissible under OEC 803(18a)(b). The juvenile court further concluded, with respect to testimony recounting N's statement during the CARES interview, that, although Crawford precluded testimony recounting that N had identified youth as the perpetrator, testimony recounting the balance of N's statements during that interview was admissible under Crawford and, as a statutory matter, under either OEC 803(4) or OEC 803(18a)(b). After the presentation of evidence, the juvenile court determined youth to be within the jurisdiction of the court for acts that, if committed by an adult, would constitute first-degree sodomy and first-degree sexual abuse.

On appeal, youth advances three arguments.⁶ First, he contends that testimony recounting N's statements to his parents describing the alleged abuse was not admissible under OEC 803(18a)(b). Second, he asserts that testimony recounting N's statements during the CARES interview was not admissible under either OEC 803(4) or OEC 803(18a)(b). Third, youth contends that, even if his statutorily based objections to the admissibility of N's statements during the CARES interview are unavailing, those statements were "testimonial hearsay" under Crawford and their admission violated his constitutional confrontation rights. As amplified below, we reject youth's statutorily based objections but agree that, under Crawford, the juvenile court erred in admitting testimony recounting N's statements made during the CARES interview.

Youth's first argument, pertaining to the admissibility of testimony recounting N's statements to his parents, is based on OEC 803(18a)(b). That statute provides, in part:

"A statement made by a person concerning an act of abuse * * * is not excluded by [OEC 802] if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made * * *. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrator's opportunity to participate in the conduct and that the statement possesses indicia of reliability as is constitutionally required to be admitted. * * * For purposes of this paragraph, in addition to those situations described in [OEC 804(1)], the declarant shall...