State v. Shelton

• Decision Date: 19 March 2008
• Docket Number: 04CF114.,A129311.
• Citation: 218 Or. App. 652,180 P.3d 155
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Justin Jay SHELTON, Defendant-Appellant.
• Court: Oregon Court of Appeals

180 P.3d 155

218 Or. App. 652

STATE of Oregon, Plaintiff-Respondent, v. Justin Jay SHELTON, Defendant-Appellant.

04CF114.

A129311.

Court of Appeals of Oregon.

Submitted on Record and Briefs November 29, 2007.

Decided March 19, 2008.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Shawn Wiley, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and RIGGS, Senior Judge.

SCHUMAN, J.

Defendant was convicted of four counts of sexual abuse in the first degree, ORS 163.427. He appeals from the convictions on two of those counts, arguing that the trial court erroneously admitted hearsay statements made by the victim. He contends that, because the victim was unavailable and defendant did not have the opportunity to cross-examine her, admitting her statements violated his Sixth Amendment right to confront the witnesses against him, as the right was interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude that one of the statements, a remark to the victim's babysitter, was not testimonial and therefore not inadmissible under Crawford, and that admitting the other statement, even if the statement was testimonial, was harmless error. We therefore affirm.

Two of the counts against defendant relate to acts involving his youngest daughter, T, who was four years old at the time of trial; the other two counts involved T's older sister. This appeal concerns only the acts involving T. In 2004, T and her sister were living with their mother, a friend of their mother's named Deborah, and Deborah's teenaged daughter Brittany, who frequently provided childcare for the girls. On alternate weekends, the girls visited defendant. Between August and October 2004, Deborah noticed T engaging in unusual and inappropriate behavior. On one occasion, Deborah observed T pull her underwear aside and attempt to insert rocks in herself. She also noticed that T inappropriately touched Deborah's father and other visitors. The first allegation of sexual abuse was raised after Brittany saw T grab the genitals of a male neighbor. When Brittany asked T why she had done that, she responded that defendant liked it when she did it to him. Brittany asked T whether anybody had touched her before, and T said that defendant had. Brittany then asked T where defendant had touched her, and T pulled her underwear aside and inserted her finger into her vagina.

The Department of Human Services (DHS) was notified about T's allegation that defendant had touched her. DHS then reported the allegation to the Boardman Police Department, which assigned an officer to interview T and her sister. During the officer's initial interview with the children they did not disclose any information about sexual abuse; the officer therefore decided against pursuing any criminal charges against defendant.

Shortly after the interviews with the officer, the children were taken to Columbia River Community Health Services to be examined for possible abuse. Jeffries, a medical assistant, prepared the children for their exam. She explained to the children that it was important to answer the examiner's questions truthfully. She did not question the children, but at one point T began to tell Jeffries that somebody had touched her. Before any follow-up questions were asked or T identified who "somebody" was, T's sister interrupted and said, "We're not supposed to tell." No further questioning occurred. During the subsequent examination, T's sister indicated that defendant had inappropriately touched her.

Before trial, the court held a hearing and concluded that T's sister was competent to testify, but T was not. Additionally, the court issued a pretrial order over defendant's objection declaring that T's hearsay statements could be offered through the testimony of Brittany and Jeffries. The court reasoned that the statements were admissible under the evidence code, and, because the statements were not testimonial, they did not violate the Sixth Amendment as interpreted in Crawford. During trial, defendant renewed his objection, but the trial court allowed Brittany and Jeffries to testify to the statements T made about being touched. Defendant was ultimately convicted of two counts of sexual abuse against each child.

On appeal, defendant's assignments of error relate to the two counts involving T. As noted above, he argues that admitting testimony from Brittany and Jeffries regarding statements made by T violated his Sixth Amendment confrontation rights under Crawford. We begin by determining whether defendant's confrontation right was violated under the state constitution. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981); State v. Steen, 215 Or.App. 635, 639, 170 P.3d 1126 (2007).

Article I, section 11, of the Oregon Constitution guarantees criminal defendants the right to "meet the witnesses face to face." Under that guarantee, hearsay evidence may not be admitted against a defendant unless the witness is unavailable and the testimony bears adequate indicia of reliability. State v. Campbell, 299 Or. 633, 648, 705 P.2d 694 (1985) (adopting the United States Supreme Court's analysis in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for purposes of addressing Article I, section 11); see also State v. Cook, 340 Or. 530, 540, 135 P.3d 260 (2006) (applying the Roberts test to Article I, section 11, post-Crawford). An inference of reliability exists where evidence falls into a firmly rooted hearsay exception. If evidence does not fall into a firmly rooted hearsay exception, it is nonetheless admissible if there is a showing of "`particularized guarantees of trustworthiness.'" Campbell, 299 Or. at 648, 705 P.2d 694 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531). It is undisputed that T was unavailable because she was not competent to testify. The issue is whether the statements she made, which were admitted through the testimony of Brittany and Jeffries, fall within a firmly rooted hearsay exception or bear adequate indicia of reliability.

Brittany's hearsay testimony recounting T's accusation of defendant was admitted under OEC 803(18a)(b). That rule creates a hearsay exception for statements made by a declarant under the age of 12 concerning an act of abuse. OEC 803(18a)(b) requires that the declarant be unavailable and that

"the proponent establish [ ] 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."

OEC 803(18a)(b) is not "firmly rooted" in the same sense as, for example, the business record exception or the exception for dying declarations; it was not added to the evidence code until 1989. Or. Laws 1989, ch. 881, § 1.

However, we have previously recognized that, if evidence satisfies the criteria for admissibility under OEC 803(18a)(b), it does not violate a defendant's confrontation rights under Article I, section 11. State v. Reed, 173 Or.App 185, 192, 21 P.3d 137, rev. den., 332 Or. 559, 34 P.3d 1177 (2001); State v. Renly, 111 Or.App. 453, 461, 827 P.2d 1345 (1992) ("OEC 803(18a)(b) protects a defendant's confrontation rights with greater clarity, detail and precision than Roberts and [Idaho v.] Wright, [497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)] seem to require."). In this case, the trial court concluded that T's statements to Brittany and Jeffries bore the necessary indicia of reliability and defendant does not assign error to that conclusion. Thus, T's statements to Brittany were admissible under Article I, section 11.

The statement T made to Jeffries was admitted under the hearsay exception for statements made for purposes of medical diagnosis or treatment, OEC 803(4), which is a firmly rooted hearsay exception. State v. Barkley, 315 Or. 420, 430-31, 846 P.2d 390 (1993). Therefore, we conclude that the statement made to Jeffries, like the one made to Brittany, is admissible under Article I, section 11.

Defendant focuses his argument on the Sixth Amendment as applied in Crawford. In that case, the United States Supreme Court held that testimonial hearsay statements may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 53-54, 124 S.Ct. 1354. Although the Court did not define "testimonial" in Crawford, the opinion in that case and the Court's subsequent opinion in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), provide guidance. A testimonial statement is one made by an "accuser" that can be characterized as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (citation and internal quotation marks omitted). The Court in Crawford explained that the Confrontation Clause was designed to eliminate the civil law practice of using ex parte statements from earlier judicial or quasi-judicial proceedings, id. at 50, 124 S.Ct. 1354, and that statements obtained through the modern equivalents to those proceedings are testimonial. Id. at 68, 124 S.Ct. 1354. The Court noted that testimonial evidence clearly encompasses "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and * * * police interrogations." Id. at 68, 124 S.Ct. 1354.

In Davis, the Court distinguished statements made in response to questions asked by a police officer for the purpose of rendering assistance in the...