State v. Vosika

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Tamara VOSIKA, Appellant. C 84-02-30610; CA A36528.
• Citation: State v. Vosika, 83 Or.App. 298, 731 P.2d 449 (Or. App. 1987)
• Court: Oregon Court of Appeals
• Decision Date: 14 January 1987

Page 449

731 P.2d 449

83 Or.App. 298

STATE of Oregon, Respondent, v.Tamara VOSIKA, Appellant.

C 84-02-30610; CA A36528.

Court of Appeals of Oregon.

Argued and Submitted June 25, 1986.

Decided Jan. 14, 1987.

Ivan J. Vesely, Portland, argued the cause and filed the brief for appellant.

Virginia Linder, Asst. Sol.Gen., Salem, argued the cause for respondent.With her on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol.Gen., Thomas H. Denney, Asst. Atty. Gen., Salem, Michael D. Schrunk, Dist. Atty., and Kathleen Payne-Pruitt, Deputy Dist. Atty., Portland.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

Defendant appeals her convictions for sodomy in the first degree and sexual abuse in the first degree.ORS 163.405;ORS 163.425.She contends that the trial court erred in failing to observe the victim personally in order to assess the victim's competency to testify, in excluding witnesses from the courtroom and in admitting hearsay evidence identifying her as the abuser.We reverse and remand.

In November, 1983, the three-year old victim was returned to her foster mother after a three-day visit with her mother, who is the defendant in this case.The child asked her foster mother to "touch me with your tongue like my mommy does."While being bathed, she asked her foster mother to "tickle my butt like mommy does."When the foster mother asked her what she meant, the child demonstrated.The foster mother noticed that the child's vaginal area was red and swollen.When asked why it was red, the child responded that defendant had touched her there with her tongue.

Detective Baker and a Childrens' Services Division(CSD) worker interviewed the child.Again, she demonstrated how defendant had touched her.Dr. Sabin, a specialist in behavioral pediatrics, also examined the child.Sabin described the child's vaginal area as reddened and irritated.The child talked a great deal about sexual matters.She responded to Sabin's questions about her condition by stating that her vaginal area was red because her mother had touched her there.At trial, the foster mother testified that, after the the child's visits with defendant had ceased, the child's behavior had returned to normal.

During a trial to the court, the court viewed a videotape of Sabin interviewing the child.On the basis of the videotape, the court ruled that the child was not competent to testify.The foster mother, Sabin and Baker testified about the child's descriptions of the abuse and that she had identified her mother as the abuser.The court held that the evidence was admissible under OEC 803(18a)andOEC 803(24). ¹Defendant was convicted.

Defendant first contends that the trial court erred in failing to observe the child personally in order to assess her competency to testify.In State v. Campbell, 299 Or. 633, 652, 705 P.2d 694(1985), the Supreme Court held that, to satisfy a defendant's constitutional confrontation rights, the trial court must personally observe a child and conduct a competency hearing.²In this case, after reviewing the videotape, the court stated:

"The little girl just didn't seem to have the attention and the ability to respond directly to questions.I just don't see how there could be any meaningful examination or cross-examination of her."

We conclude that, absent a stipulation allowing such a procedure, viewing a videotape does not satisfy Campbell's requirement that the trial court must personally observe the child and conduct a competency hearing.That error alone requires that we reverse and remand for a new trial.

Because they may arise on remand, we address defendant's other assignments of error.Defendant contends that the trial court erred in excluding witnesses from the courtroom.She argues that exclusion violated Article I, section 10, of the Oregon Constitution.³She relies on State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23(1980).In Deiz, the Supreme Court held that, under the Oregon constitution, the press, as a member of the public, could not be excluded from a juvenile court hearing.However, the court noted that its holding

"should not be interpreted as guaranteeing the right of public access to all judicial proceedings.* * * [T]he trial court retains the right to control access by members of the press or public who would overcrowd the courtroom, attempt to interfere in the proceedings or otherwise obstruct the proceedings."289 Or. at 284, 613 P.2d 23.

OEC 615 provides, in relevant part:

"At the request of a partythe court may order witnesses excluded until the time of final argument, and it may make the order of its own motion."

That rule is consistent with the policy of permitting exclusion of persons who might interfere in, or otherwise obstruct, the proceedings.It was enacted to prevent a witness from being influenced by hearing the testimony of a prior witness.That is sufficient reason for exclusion without violating the Oregon Constitution.We find no error.

Defendant next contends that the trial court erred in admitting the hearsay testimony of the foster mother, Sabin and Baker.She argues that their testimony identifying her as the abuser does not fit within any exception to the hearsay rule and, therefore, that it is inadmissible.In Campbell, the Supreme Court held that OEC 803(18a) permits the admission of hearsay statements of the victim of a sexual assault which show the nature of the complaint, even if those statements include some of the particulars of the offense.299 Or. at 646, 705 P.2d 694.Thus, the testimony of the foster mother, Sabin and Baker that the child made a complaint that she had been abused was admissible.

The remaining question is whether the evidence that the child had identified her mother as her abuser was admissible.The state concedes that the trial court erred in admitting the evidence under OEC 803(24).SeeState v. Campbell, supra, 299 Or. at 640, 705 P.2d 694.However, it argues that Sabin's identification testimony was admissible under OEC 803(4), as a statement made for the purpose of medical diagnosis or treatment.In Campbell, the Supreme Court held that out-of-court statements regarding sexual abuse are not admissible under OEC 803(24), because the legislature has provided a specific exception to the hearsay rule in OEC 803(18a).299 Or. at 640, 705 P.2d 694.Defendant argues that, because of that holding, hearsay statements of the victim of sexual abuse are inadmissible unless they fit within OEC 803(18a).We disagree.Although the Supreme Court held that hearsay statements by victims of sexual abuse identifying their abusers are not admissible under OEC 803(18a), we do not read Campbell to hold that such statements are not admissible under any other exception to the hearsay rule.Therefore, we turn to a consideration of whether Sabin's identification testimony was admissible as a statement made for the purpose of diagnosis or treatment.

OEC 803(4) provides that the following hearsay evidence is admissible:

"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception of general character of the cause of external source thereof in so far as reasonably pertinent to diagnosis or treatment."

The state argues that, because Sabin is a specialist in behavioral pediatrics and because of the special nature of the treatment required for intrafamily sexual abuse, the statements were part of the information needed to diagnose or treat the child for child abuse.

The Supreme Court has previously recognized the special problems associated with intrafamily sexual abuse.SeeState v. Middleton, 294 Or. 427, 436, 657 P.2d 1215(1983).Other jurisdictions that have dealt with the admissibility question involved here have also recognized the special problems associated with intrafamily sexual abuse and that the identity of the abuser is often an important element in diagnosing or treating the victim.SeeUnited States v. Renville, 779 F.2d 430(8th Cir.1985);Goldade v. State, 674 P.2d 721(Wyo.1983), cert. den.467 U.S. 1253, 104 S.Ct. 3539, 82 L.Ed.2d 844(1984).

In Goldade, the Wyoming Supreme Court held that statements a four-year-old victim of abuse made to a nurse and a physician describing the abuse and identifying her abuser were admissible under the treatment or diagnosis exception to the hearsay rule.The child had been found to be incompetent to testify at trial.The appellate court agreed that, generally, statements attributing fault are not admissible under a statute identical to OEC 803(4).However, the court emphasized the fact that child abuse frequently encompasses more than just the physical injury to the child.

"The justification for the exception to the hearsay rule contained in Rule 803(4), W.R.E., is that the statements which are furnished are considered to be reliable and trustworthy.* * * As stated in 4 Weinstein's Evidence, § 803(4), p. 803-129(1981):

" ' * * * [A]s a matter of policy, a fact reliable enough to serve as a basis for a diagnosis is also reliable enough to escape hearsay proscription.* * *

" ' * * * * *

" ' * * * Even in the case of a statement made for treatment the test is not only whether the declarant thought it relevant (thereby establishing reliability), but also whether a doctor would have reasonably relied upon such a statement in deciding upon a course of treatment.'

"In reaching a conclusion as to pertinency for purposes of applying Rule 803(4), W.R.E., the court must rely upon the view of the treating physician or the views of other medical service personnel with respect to what facts are pertinent to diagnosis and treatment.While those views may not necessarily be controlling they do suffice to support the exercise of the sound discretion of the trial court in admitting such evidence.* * * It is apparent from the...