STATE EX REL. JUV. DEPT. v. Black

• Decision Date: 21 January 2004
• Citation: 83 P.3d 338,191 Or. App. 472
• Parties: In the Matter of Tara N. Black, a Minor Child. STATE ex rel JUVENILE DEPARTMENT OF WASCO COUNTY, Respondent, v. Tara N. BLACK, Appellant.
• Court: Oregon Court of Appeals

83 P.3d 338

191 Or. App. 472

In the Matter of Tara N. Black, a Minor Child.

STATE ex rel JUVENILE DEPARTMENT OF WASCO COUNTY, Respondent, v. Tara N. BLACK, Appellant.

J01063; A117892.

Court of Appeals of Oregon.

Argued and Submitted July 17, 2003.

Decided January 21, 2004.

Kurt C. Peterson argued the cause for appellant. With him on the brief was Morris & Olson.

Julie A. Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and LINDER, Judge.

LINDER, J.

Youth appeals the juvenile court's order declaring her to be within its jurisdiction for committing acts that, if committed by an adult, would constitute first-degree sexual abuse, ORS 163.427(1)(a), and first-degree sodomy, ORS 163.405(1)(b). See ORS 419B.100(1)(c). Youth assigns error to the admission of hearsay statements of the alleged victim, in the form of a videotaped interview and statements that the victim made to his mother, under OEC 803(18a)(b). In addition, she contends that the evidence was insufficient to find her within the juvenile court's jurisdiction beyond a reasonable doubt. On de novo review, ORS 419A.200(6)(b), we conclude that, even with the challenged hearsay statements, the record is insufficient to support jurisdiction. We therefore reverse without reaching the evidentiary issue.

The delinquency petition in this case stemmed from youth's alleged sexual abuse of a four-year-old boy ("child") while she was babysitting him at his home on the evening of June 5. McNamara, child's mother, knew youth from her involvement with a youth group at the Salvation Army, where McNamara worked as a youth group leader, and had hired youth as a babysitter in the past without incident. At the hearing on the petition, McNamara testified that youth babysat child for about three hours on the night of the alleged incident while McNamara worked at the Salvation Army. When McNamara came home, child and youth were on the couch in the living room, and child was wearing pajamas, lying down and pretending to be asleep. Child then jumped up and yelled, "Boo!," trying to scare his mother. McNamara and child drove youth home, then returned and watched television together. McNamara testified that, after approximately 15 minutes, child, "just out of the blue," said,

"`Mom, [youth] unzipped my pajamas.' And I said, `Well, what do you mean she unzipped your pajamas; don't you mean she * * * helped you get your pajamas on.' And he said * * *, `She unzipped my pajamas and touched me down there.' * * *

"* * * * *

"He pointed down; you know, he pointed down. And I said, `Do you mean your leg?' And he said, `No, she touched me right there,' and he pointed down to his penis. * * * I said, `How did she touch you there?' And he made a kissing motion. And I said, `She kissed you down there?' And he said, `Yes.' * * * And I said, `Why?' He goes, `Well, maybe she forgot.' And I said, `What do you mean "she forgot?'" `Well, she forgot she's not suppose[d] to do that.'"

McNamara testified that, after that conversation with child, she took him to her mother's house next door and told child to repeat to his grandmother what he had told McNamara; child then "told [his grandmother] the same thing."

The next day, McNamara drove youth's sister, Brittany, home from a party at the Salvation Army. She saw youth outside when she dropped Brittany off and, while child remained in the van, she confronted youth with child's accusation. McNamara asked youth if she had kissed child's penis, and youth replied, "Well, that's gross. I wouldn't do something that gross." McNamara testified that she then took youth over to child and said, "child, [youth] is telling me that she didn't do that." Child responded that she had, and when youth denied it, child again stated that she had, and became upset. Thereafter, youth no longer attended youth group meetings or participated in activities at the Salvation Army.

The day after she confronted youth, McNamara reported child's accusations to what is now the Department of Human Services (DHS) (formerly the State Office for Services to Children and Families). A DHS worker, Melum, and Officer Rosebraugh of the Oregon State Police conducted a videotaped interview of child about the accusations. During that interview, child responded to questions about the alleged abuse:

"[Melum:] Well, do you know why you're here today to talk to us?

"[Child:] Yeah.

"[Melum:] Why?

"[Child:] Cause [youth] did a bad thing.

"* * * * *

"[Melum:] And what bad thing did she do?

"[Child:] Rubbed on me.

"* * * * *

"[Melum:] Where did she rub on you?

"[Child:] Down. [After further questioning, indicating his penis]

"* * * * *

"[Melum:] And what did she rub on you with?

"[Child:] With her—uh, um, the same thing. [After further questioning, indicating youth's vagina]

"* * * * *

"[Melum:] And when she rubbed on you, did she have—how were your clothes?

"[Child:] Jeans. And then—and then I had—I changed into my pajamas * * *.

"* * * * *

"[Melum:] And where were you in the house when this happened?

"[Child:] Um, in the living room where our gray couch is.

"[Melum:] And where were you in the living room?

"[Child:] On the couch. Fake—um, fake sleeping fake."

Child went on to tell Melum that youth also touched his penis with her hand, more than once. When asked if youth did anything else, child told Melum that youth kissed his penis. Later in the interview, child and Melum had the following exchange:

"[Melum:] [Child], you told us that [youth] also [in addition to kissing your penis] rubbed on you?

"[Child:] Yeah.

"[Melum:] With her hands. And—

"[Child:] No, that was her vagina.

"[Melum:] Oh, she rubbed on you with her vagina?

"[Child:] Like her boy—like Brittany's boyfriend.

"[Melum:] Who's Brittany?

"[Child:] Her sister.

"[Melum:] Okay. So she rubbed on your penis with her vagina?

"[Child:] Yeah.

"* * * * *

"[Melum:] Did she rub on you with her vagina before or after she kissed your penis?

"[Child:] After—after she kissed my penis.

"[Melum:] Okay.

"[Child:] I'm good at talking at questions.

"[Melum:] Yeah, you're doing a good job answering questions.

"[Rosebraugh:] You're very smart. You're a very smart boy.

"[Melum:] When—when did she—what happened after she rubbed on you?

"[Child:] Then she did it again and again and again and again and again and—like more than a hundred. She did it again, again, again, again, again, again and again.

"[Melum:] When did she touch your penis with her hand?

"[Child:] With—when I was fake sleeping again.

"[Melum:] Was that after she rubbed on you again and again and again?

"[Child:] Yeah. She just kissed my penis more and more and more."

Later that same day, Rosebraugh and another detective went to youth's home to discuss the alleged abuse, which youth denied. The detectives decided to take youth to the juvenile detention center to question her privately. Because youth was barefooted, they told her to put on shoes. Youth, who by then seemed "kind of sad and upset" to Rosebraugh, left the room, followed by her sister Brittany. When she did not return after a few minutes, the detectives, youth's mother, and youth's sister Brittany looked for her outside. Brittany evidently saw youth hiding under a car in the alley behind the house, at which point youth went back inside. The detectives ordered her to come to the front door, which she did, at which point she told the detectives that she did not want to "go to jail" and asked if somebody could go with her. The detectives insisted that she go alone, handcuffed her, and took her to the detention facility for further questioning.

Before the alleged abuse took place, McNamara often took child to her workplace at the Salvation Army, where he was free to explore the facility while she led youth groups. She testified that, "[i]f he feels like going up to play in the game room upstairs, then he plays games up there; but if he gets bored he'll come down and interrupt the group * * *." McNamara did not allow child to attend teenage group meetings, however, because the teenagers often used inappropriate language (i.e., swearing) and child had mimicked their behavior in the past.

McNamara testified that child exhibited some "very inappropriate behavior with some other kids" in the weeks following the alleged abuse. Specifically, child would go up to other children and try to kiss them. Child also approached McNamara's boss at the Salvation Army and "asked him what sex was." When McNamara asked child why he was asking about sex, he responded, "[b]ecause that's what [youth] said that we were going to do" or "[t]hat's what [youth] said we were doing." McNamara was also aware of one time before the alleged abuse when child had exhibited sexual curiosity. That occurred at a Salvation Army youth retreat, where one of McNamara's coworkers saw child and a four-year-old girl "exploring each other; just showing each other that they looked different."

At the hearing, youth called Maki, a 10-year-old girl who attended youth group meetings and activities at the Salvation Army, as a witness. Maki was involved with the Salvation Army through approximately mid-June, at which time she stopped attending. Maki testified that she was not in youth's group but knew her from seeing her at the Salvation Army and through youth's sister, Brittany. She also knew child from seeing him at group meetings and in the Salvation Army game room. She testified that she saw child try to kiss other girls, including youth, in the game room. On one occasion, youth was lying down on the floor in the game room, and child repeatedly tried to climb on top of her and kiss her on the lips. Maki stated that youth would respond by moving child away from her but that he would come back and try to climb on her again. The third time, according to Maki, youth took child downstairs to...