State v. Reed

• Citation: 173 Or. App. 185,21 P.3d 137
• Parties: STATE of Oregon, Respondent, v. Henry Earl REED, Appellant.
• Decision Date: 21 March 2001
• Court: Court of Appeals of Oregon

21 P.3d 137

173 Or. App. 185

STATE of Oregon, Respondent, v. Henry Earl REED, Appellant.

(97-1022; CA A104131)

Court of Appeals of Oregon.

Argued and Submitted March 14, 2000.

Decided March 21, 2001.

Susan Elizabeth Reese, Portland, argued the cause and filed the briefs for appellant.

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

HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

HASELTON, P.J.

Defendant appeals from a judgment of conviction on three counts of first-degree sexual abuse. ORS 163.427. Defendant assigns error to, inter alia, the trial court's failure to require separate corroboration for each hearsay statement attributed to an unavailable declarant/complainant. OEC 803(18a)(b). Defendant also assigns error to the trial court's refusal, notwithstanding the psychotherapist-patient privilege (OEC 504(2)), to allow discovery of the counseling records of two of the children allegedly abused by defendant. ORS 419B.040. We hold that an eyewitness's account of abuse of the declarant by defendant satisfied the corroboration requirement in OEC 803(18a)(b) for each of the statements attributed to the declarant, because that account tended to strengthen or confirm the act of abuse described in each of those statements. We further hold that the exception to the psychotherapist-patient privilege in ORS 419B.040 is limited to materials that would exonerate or inculpate a criminal defendant, and does not permit access to otherwise privileged files simply to demonstrate the absence of any evidence regarding abuse. State v. Hansen, 304 Or. 169, 743 P.2d 157 (1987). Accordingly, we affirm.

On appeal from a judgment of conviction, we view the facts in the light most favorable to the state. State v. Rose, 311 Or. 274, 276, 810 P.2d 839 (1991). Defendant began a romantic relationship with Coleman in the spring of 1995. Coleman and her four children began living with defendant shortly thereafter. At the time, Coleman's two minor daughters, S and A, were 10 and six years old respectively; her two minor sons, J and D, were eight years old and nine months old respectively. Coleman and her four children lived with defendant until mid-December 1996.

In December 1996, A told a neighborhood friend that defendant was "touching her in spots she didn't like" and that she was scared defendant was going to hurt the other members of her family. Ultimately, A's friend related some of A's statements to her older brother. The brother immediately took his sister to see their mother, Gump. The next morning, Gump told Coleman about A's statements. The two women decided that Gump should speak with A privately because they thought she might be more open with Gump about the abuse.

Gump later testified that during her private conversation with A, the girl disclosed that defendant rubbed his penis against her on numerous occasions. For example, A told Gump that late one night, after she had used the downstairs bathroom, defendant stopped her in the kitchen, took off all of her clothes, laid her on the floor, and rubbed his penis all over her. A also told Gump that defendant was "doing [S] and [D] too."

Upon hearing that A was being abused, Coleman and her four children moved into Gump's home. Coleman apparently reported the abuse and an investigation ensued. On December 19, 1996, A was briefly interviewed by both Columbia County Sheriff's Detective Cage and by Cupp, a caseworker for the State Office for Services to Children and Families, to determine whether a full examination was warranted. Cage and Cupp later testified that A described several incidents in which defendant had fondled her chest, buttocks, and genitals. Based on that interview, Cupp recommended a more thorough examination by Child Abuse Response and Evaluation Services (CARES) at Emanuel Hospital in Portland.

Sometime before the CARES examination took place, S revealed to Coleman that defendant was "hurting me too." On January 6, 1997, Shelton, a nurse practitioner with CARES, examined A and S for medical evidence of abuse. The exam revealed no physical evidence of abuse—a fact not inconsistent with the type of abuse described by the children.

Following the medical examination, Dr. Bourg, a clinical psychologist, conducted a detailed interview with the children about the alleged abuse. Those interviews were videotaped while Shelton observed from behind a viewing mirror.²

In February 1997, defendant was charged with five counts of sexual abuse in the first degree (two against A, two against D, and one against S), ORS 163.427, one count of attempted rape in the first degree against S, ORS 163.375, and one count of assault in the fourth degree against Coleman, ORS 163.160.

Before trial, the court examined S, J, and A to determine their availability to testify at trial. The court determined that both S and J were available but that A was unavailable to testify because of fear. OEC 803(18a)(b) (witness under 12 years of age is "unavailable" if he or she "is unable to communicate about the abuse or sexual conduct because of fear or other similar reason").

Thereafter, the court received testimony from investigators, as well as other adults and children, to determine whether A's out-of-court statements would be admissible at trial under OEC 803(18a)(b), which allows for the admission of hearsay testimony by an unavailable child declarant/complainant concerning an act of abuse:

"[I]f 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."

Among the witnesses who testified at the pretrial hearing was A's older brother, J. J testified that he saw defendant instruct A, who was clothed, to climb on top of defendant while he reclined naked on a couch, covered only by a blanket. According to J, defendant told A, "It's okay, your mom's not home."

The trial court subsequently issued a letter opinion in which it ruled that A's out-of-court statements were admissible under OEC 803(18a)(b). In its letter opinion, the trial court first considered the issue of corroboration and concluded that, not only did defendant have the opportunity to commit the charged acts, but also—and further—J's eyewitness testimony constituted sufficient corroboration of all of the alleged abuse that A had recounted.

Next, using factors listed in OEC 803(18a)(b),³ the court separately evaluated the reliability of each of A's statements and concluded that "[o]n those factors which relate to the reliability of the child, they would certainly favor admissibility."

In addition to those evidentiary rulings, the court also heard pretrial arguments on several discovery issues, including a dispute as to whether, notwithstanding the psychotherapist-patient privilege in OEC 504,⁴ defendant could obtain discovery of A's and S's psychotherapists' files pursuant to ORS 419B.040(1). The trial court conducted an in camera review of A's and S's psychotherapists' files and, relying on State v. Hansen, 304 Or. 169, 743 P.2d 157 (1987), denied defendant's request:

"I have reviewed their files and have not found any evidence that would be exonerating to the defendant. * * * It's my ruling that State v. Hansen is limited to statements that would directly exonerate the defendant and not simply allow testimony to come in that there was no statement directly accusing the defendant of certain activity at a specific time. * * * [I]n the Hansen case there was in fact a retraction or denial by the alleged victim in that case, and I'm ruling that that is not the same as no statement whatsoever."

Defendant was convicted on three counts of first-degree sexual abuse—two counts against A, and one count against S. The assault count against Coleman was severed by the court, and defendant was acquitted on the remaining counts.

On appeal, defendant raises six assignments of error, only two of which merit discussion: (1) The trial court erred in admitting A's out-of-court statements under OEC 803(18a)(b) because it failed to require independent, separate corroboration for each hearsay statement attributed to A; and (2) the court erred by denying the defense access under ORS 419B.040(1) to the psychotherapist files of A and S.⁵ We reject defendant's other assignments of error without further discussion.

In his first assignment of error, defendant relies on State v. Renly, 111 Or.App. 453, 827 P.2d 1345 (1992), for the proposition that OEC 803(18a)(b), and specifically that rule's "is corroborative evidence of the act of abuse" language, requires separate corroboration for each hearsay statement attributed to A.

In Renly, we discussed the requirements of OEC 803(18a)(b) and made the following observations regarding the application of that rule in criminal proceedings. First, the rule requires that, as a prerequisite to admitting the hearsay testimony of an unavailable declarant, the court must determine that the hearsay statement itself is circumstantially reliable. That requirement protects a defendant's confrontation rights under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Renly, 111 Or.App. at 461,827 P.2d 1345 ("If a trial court examines the proffered hearsay under pertinent factors and finds that the statements are inherently trustworthy, then the evidence can be admitted without violating a defendant's confrontation rights."). Second, the rule's corroboration prong requires that a trial court look beyond the circumstantial reliability of the statement itself, and determine whether "independent...