State Ex Rel. Juvenile Department v. Pfaff

994 P.2d 147, 164 Or. App. 470, 1999 Ore. App. LEXIS 2128

• Court: Court of Appeals of Oregon
• Decided: December 22, 1999
• Docket: 9703-80720; CA A99785
• Status: Published

Opinions

HASELTON, J.

Child appeals from the juvenile court’s judgment that determined that he engaged in conduct that, if committed by an adult, would constitute two counts of harassment, ORS 166.065, and one count of endangering the welfare of a minor, ORS 163.575. Child contends that the trial court erroneously admitted certain hearsay testimony pertaining to the endangering count and that, without that testimony, the state’s proof as to that count was insufficient. Child further contends that the state failed to adduce sufficient corroboration of child’s admissions of the acts constituting harassment. On de novo review, ORS 419A.200(5), ORS 19.125(3), we affirm.

Child, who was 13 at the time of the juvenile hearing, lived with his mother, his 11-year-old brother, Eddie, and his mother’s boyfriend. As described more fully below, in March 1997, both child and mother spoke with Wendy Jensen, a licensed clinical social worker who works primarily with adolescent sexual offenders, about child’s interactions with Eddie. The purpose of those interviews was to evaluate child’s sexual conduct and his potential for “acting out” in the future. Following those interviews, Jensen produced an evaluation, stating that child may have engaged in “reportable” sexual conduct. As a result of that report, Oregon State Police Detective Kenneth Poggi interrogated child for approximately two hours at his middle school on May 9, 1997. Subsequently, in June 1997, the Multnomah County Juvenile Department filed a petition, alleging, in part:

“ENDANGERING THE WELFARE OF A MINOR * * *

“[Child], on or between January 1, 1996, and May 5, 1997 in the County of Multnomah, State of Oregon, did unlawfully and knowingly cause, Edward Pfaff an unmarried person under the age of eighteen years, to witness an act of sexual conduct, to wit: masturbation, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

* * * *

“HARASSMENT***

“Between the 1 day of January, 1996 and the 5 day of May, 1997, in the County of Multnomah, State of Oregon, [child] did unlawfully and intentionally harass and annoy Edward Pfaff, by subjecting Edward Pfaff to offensive physical contact by urinating on him.

«* * * * *

“HARASSMENT***

“Between the 1 day of January, 1996 and the 5 day of May, 1997, in the County of Multnomah, State of Oregon, [child] did unlawfully and intentionally harass and annoy Edward Pfaff, by subjecting Edward Pfaff to offensive physical contact by smearing feces on him.”¹

The juvenile court hearing on the petition occurred September 10, 1997. At the outset, child’s counsel moved unsuccessfully to suppress child’s statements to Poggi on the grounds that child did not knowingly and voluntarily waive his right against self-incrimination. In addition to Poggi’s testimony, the state also presented testimony by Jensen. Jensen stated that child had admitted to her that he had urinated on Eddie and wiped feces on Eddie. Jensen also testified, over child’s hearsay objections, that mother had told her (Jensen) that Eddie had complained to mother about child masturbating in front of him and urinating and smearing feces on him. Child, Eddie, and mother all testified at the hearing and denied that the alleged conduct had occurred.² The trial court concluded:

“I am satisfied beyond a reasonable doubt that the remaining three allegations occurred which was * * * the Endangering of the Welfare of a Minor and the two Harassment charges. I’m satisfied about those charges, quite frankly, because there’s a great deal of corroboration on all of those charges, including the admissions made to the therapist in this particular case.”

On appeal, child argues that the trial court erred in (1) denying his motion to suppress his statements to Poggi; (2) admitting as substantive evidence Jensen’s double hearsay recounting of mother’s recounting of Eddie’s statements to her; and (3) concluding that the evidence warranted adjudication on the endangerment count and the two harassment counts. We do not address child’s first argument because his statements to Poggi are, ultimately, immaterial to our disposition. As amplified below, regardless of the admissibility of those statements, the remaining evidence warrants adjudication on all three counts.

We begin with the endangerment count, which alleged that child masturbated in Eddie’s presence. The only direct evidence of that conduct was Jensen’s testimony, on which the trial court expressly relied:

“[By Jensen]: As far as sexual acting out that [mother] stated [child] had engaged in, she stated that she had received complaints about sexualized behavior from both her other son and from the school.

«* * * * *

“She stated to me that the other brother, Eddie, had complained of [child] putting his finger in his, Eddie’s, anus, that he had smeared feces on Eddie, that he had exposed himself to Eddie, and that he had violated Eddie’s privacy in the bathroom by barging in on him. That he had urinated on him in Eddie’s bed and that he had masturbated in front of Eddie. That is what she, what [mother] told me.”

Child contends that, without that testimony, the evidence could not support an adjudication on the endangerment count. The state acknowledges that “the court testimony which definitively establishes the appellant’s conduct towards his brother was the therapist’s recitation of the sexualized conduct as described by appellant’s mother to Jensen.”

At trial, child objected to the quoted testimony as double hearsay. Although child ultimately conceded that Eddie’s statements to mother fell within the “sexual abuse” exception to the hearsay rule, OEC 803(18a)(a), (b),³ he argued that the second leg of the hearsay, mother’s statements to Jensen, did not fall within any exception to the hearsay rule and, thus, could not be treated as substantive evidence. See OEC 805 (“Hearsay included within hearsay is not excluded under [OEC 802 of the hearsay rule], if each part of the combined statements conforms with an exception set forth in [OEC 803 or OEC 804].”). The state, after initially asserting that mother’s statements to Jensen regarding Eddie’s complaints fell within the “medical diagnosis or treatment” exception, OEC 803(4), ultimately conceded that that exception was inapposite. The state asserted, however, that mother’s statements were admissible as a prior inconsistent statement of a witness, OEC 801(4)(a), as an admission by a party-opponent, OEC 801(4)(b), or as a statement against interest, OEC 804(3)(c). The court ruled that the testimony was admissible, without specifying the basis of that ruling, and then, as noted, relied on the testimony as substantive evidence.⁴

On appeal, child reiterates his argument that mother’s statements to Jensen recounting Eddie’s complaints to her did not fall within any exception to the hearsay rule. The state, which conceded at hearing that the medical diagnosis or treatment exception was inapposite, now invokes that exception as a basis for affirming the trial court’s admission of, and reliance on, that testimony as substantive evidence. The state asserts, alternatively, that mother’s statements to Jensen constituted admissions against penal interest, OEC 804(3)(c), or, in all events, were admissible under the residual hearsay exception, OEC 803(26). For the reasons that follow, we conclude that mother’s statements to Jensen recounting Eddie’s complaints were admissible under the “medical diagnosis or treatment” exception to the hearsay rule and, thus, that the trial court did not err in treating that testimony as substantive evidence.

We first consider whether the state, having conceded the inapplicability of OEC 803(4) before the trial court, can invoke that exception on appeal. The state, reciting the familiar “right for the wrong reason” proposition that we will affirm an evidentiary ruling on any correct alternative basis, see, e.g., State v. Nielsen, 316 Or 611, 629, 853 P2d 256 (1993), contends that its prior concession was immaterial.⁵ Although the state’s disavowal of its concession is troubling, we agree that, on this record, the concession is not preclusive.

Our conclusion in that regard is ultimately grounded on the pragmatic principles underlying the “right for the wrong reason” doctrine and, more broadly, preservation requirements. In Nielsen, the court explained the reasoning underlying the “right for the wrong reason” doctrine. There, the court sustained the trial court’s admission of a hearsay statement notwithstanding that the trial court relied on “improper considerations” as support for its ruling. 316 Or at 629. In so holding, the court quoted with approval the rationale articulated by the United States Supreme Court in Securities Comm’n v. Chenery, 318 US 80, 88, 63 S Ct 454, 87 L Ed 626 (1943):

“ ‘[W]e do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct “although the lower court relied upon a wrong ground or gave a wrong reason.” * * * The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. But it is also familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury.’ ”

316 Or at 629 n 12. See also id., quoting with approval Clark v. City of Los Angeles, 650 F2d 1033, 1036 (9th Cir 1981):

“ ‘[I]f the grounds given by the district court for admissibility of the evidence are incorrect, the court’s ruling will be reversed only if there are no grounds under which the evidence could properly be admitted * * ”

The court in Nielsen consequently concluded:

“Where a trial judge makes a correct ruling admitting evidence but articulates an erroneous reason for it, there is no need to reverse. See OEC 103 (‘Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected’).” 316 Or at 629 (footnote omitted).

Nielsen’s explication was consonant with, albeit more comprehensive than, a line of authority applying the doctrine. See, e.g., Huff v. Bretz, 285 Or 507, 519, 592 P2d 204 (1979); State v. Dowell, 274 Or 547, 552 n 4, 547 P2d 619 (1976); State Farm Fire v. Sevier, 272 Or 278, 298-99, 537 P2d 88 (1975). Because our review in this case is de novo, Sevier is particularly instructive:

“We are reluctant to reverse a trial court on grounds or theories other than those on which a case is tried and decided unless the parties have been afforded an opportunity to submit further briefs or argument. The considerations are different in cases in which we affirm a trial court. In such cases, when the trial court arrived at a correct result, but on grounds different than those which, in our opinion, are more proper as the basis for such a result, we believe that it is not improper to affirm the trial court; provided, of course, that the pleadings are sufficiently broad and there is sufficient evidence in the record, as in this case.

“We believe that this is particularly proper in suits in equity, which we try de novo on appeal.” 272 Or at 298-99.

Thus, the primary principle underlying the doctrine is that we will not gratuitously reverse a trial court. That is, if the trial court’s result is, ultimately, correct, then we will affirm on alternative grounds to avoid an unnecessary remand. The necessary and practical predicate for applying that principle is that the record is adequately developed to support the alternative grounds. See, e.g., id. at 298. If, however, the alternative ground for affirmance — and, particularly, for admission of evidence — is asserted for the first time on appeal and if it appears that the opposing party could have developed the record differently had that ground been raised at trial, then preservation principles preclude reliance on the new, alternative ground. See generally Griffith v. Blatt, 158 Or App 204, 210, 973 P2d 385, rev den 329 Or 287 (1999) (declining to address ’“new and qualitatively different arguments which, if raised below, might well have affected the development of the evidentiary record”).

How does the state’s concession, or waiver, before the trial court affect the application of those principles in this case? Ordinarily, one would assume, the concession that a particular hearsay exception is inapposite would preempt adequate development of a record establishing the foundation for that exception. Thus, in most cases, such a concession would, as a practical matter, preclude resort to the “right for the wrong reason” doctrine. In this case, however, our review of the entire record persuades us that the foundational requisites for admission under OEC 803(4), see 164 Or App at 481-86, were, in fact, further explored. That is, we do not believe that the state’s concession materially affected the development of the record with respect to the (in)applicability of OEC 803(4).

The issue thus reduces to whether, pragmatic considerations aside, the state’s concession qua “waiver” somehow precludes invocation of the “right for the wrong reason” principle. We conclude that it does not. In State v. Bailey, 143 Or App 285, 292, 924 P2d 833 (1996), we considered whether the,state’s disclaimer and concession of a legal issue before the trial court precluded us from revisiting, and predicating our affirmance on, that matter. We concluded that it did not:

“On first blush, it might seem appropriate to hold the state to its legal concession below. * * * However, such an approach cannot be squared with this court’s essential function. We are an error-correcting court; we reverse or modify trial court rulings only if those rulings are erroneous as asserted by the party assigning or cross-assigning error. See Wesley v. Woods, 42 Or App 85, 89, 600 P2d 421 (1979). Reducing that jurisprudential abstraction to concrete terms, we must determine in this case whether the denial of the suppression motion was erroneous for the reasons defendant urges. * * * That is so regardless of the state’s concession.” Id. (citation omitted; footnote omitted).

We conclude, for the same reasons, that the state’s concession before the trial court in this case does not preclude our consideration of OEC 803(4) as an alternative ground for the admission of Jensen’s double-hearsay testimony. Consequently, we address the application of OEC 803(4).

We return to OEC 805. That rule provides:

“Hearsay included within hearsay is not excluded under Rule 802 (ORS 40.455) if each part of the combined statements conforms with an exception set forth in Rule 803 or 804 (ORS 40.460 or ORS 40.465).”

Thus, if each leg of the double hearsay “conforms with an exception” to the hearsay rule, then the double hearsay is admissible. See Legislative Commentary to OEC 805, reprinted in Laird C. Kirkpatrick, Oregon Evidence, 626 (3d ed 1996) (“As a matter of principle, it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception.”).

Here, child concedes that the first leg — Eddie’s statements to mother — was admissible under the “child sex abuse” hearsay exception, OEC 803(18)(a). Counsel for child acknowledged the applicability of that exception at trial, and, on appeal, child’s brief expressly concedes:

“The first strand of hearsay, Eddie’s statements to his mother, were admitted pursuant to Rule 803(18)(a). The child does not challenge that ruling on appeal.” (Emphasis added.)

During oral argument on appeal, counsel for the state noted that concession — that it was “not contested” — and child’s counsel did not disagree. Thus, the sole issue presented on appeal is the admissibility of the second ieg of the double hearsay, i.e., mother’s statements to Jensen.⁶

OEC 803(4) provides that certain statements are not excluded as hearsay, even though the declarant is available as a witness:

“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause [or] external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

To be admissible under OEC 803(4), a statement must meet three requirements:

“(a) The statement must be ‘made for purposes of medical diagnosis or treatment’;

“(b) The statement must describe or relate ‘medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause [or] external source thereof;

“(c) The statement must be ‘reasonably pertinent to diagnosis or treatment.’ ” State v. Moen, 309 Or 45, 55, 786 P2d 111 (1989).

The statements need not be made to a physician. Rather, “[statements to hospital attendants, ambulance drivers or even members of the family or friends may be within the scope of the exception.” Legislative Commentary to Rule 803(4), reprinted in Kirkpatrick, Oregon Evidence at 522; see State ex rel Juv. Dept. v. Cornett, 121 Or App 264, 270, 855 P2d 171 (1993), rev dismissed 318 Or 323 (1994) (rejecting argument that “OEC 803(4) does not apply, because the person hearing the statements did not have a medical degree”: “[T]he issue is not whether the treating therapist who heard [the child’s] statements possesses certain credentials. The issue is whether the statements meet the three requirements described in Moen * * *.”).

OEC 803(4), by its terms, does not require that the declarant be the person diagnosed or treated. Rather, the rule refers broadly to “statements” describing their purpose and nature, without any reference to the declarant’s status.⁷ See Kirkpatrick, Oregon Evidence at 523 (OEC 803(4) “allows statements by persons other than the person who is the subject of the diagnosis or treatment”).⁸ State v. Bauman, 98 Or App 316, 319, 779 P2d 185 (1989), is exemplary. There, in a prosecution for sexual abuse of a child, the state at trial offered the testimony of a physician who testified that the child’s mother had told the physician that the child had been abused by her babysitter’s boyfriend.⁹ The defendant objected to that testimony as hearsay, and the trial court overruled that objection. On appeal, we affirmed that ruling, concluding that the physician’s recounting of the mother’s statements fell within OEC 803(4):

“Defendant objected only to testimony regarding medical history, because it ‘is from the mother as opposed to the child.’ Under OEC 803(4), statements made for medical diagnosis and treatment by a family member other than the person who is the subject of diagnosis or treatment are admissible.” 98 Or App at 319-20.

Conversely, the mere fact that the patient’s parent is the declarant does not automatically establish the requisite motivation — i.e., that “the declarant’s motive in making the statement to the medical provider must be to promote treatment or diagnosis.” State v. Newby, 97 Or App 598, 601, 777 P2d 994, rev den 308 Or 660 (1989). Rather, as with any other foundational fact, the declarant’s motivation, which is the touchstone of reliability,¹⁰ must be assessed by the court on a case-by-case basis.¹¹

This case differs in two respects from most other reported cases involving nonpatient declarants. First, the declarant here, child’s mother, was not relating her own observations;¹² rather, she was relating hearsay. Second, the statements that mother recounted were not statements by the child/patient, but by a third person (Eddie) who was not the object of treatment.

The first variable is illustrated by the difference between two statements by a parent to the doctor treating his child: “I saw my child throw up last night” and “My child told me that she threw up last night.” Absent extraordinary circumstances subverting its reliability, see, e.g., 164 Or App at 482 n 11, the doctor’s recounting of the first statement is clearly admissible under OEC 803(4) as proof that the child did, in fact, throw up. Whether the doctor’s double-hearsay recounting of the second statement is admissible as substantive evidence depends on satisfying the requirements of OEC 805 — i.e., both the child’s statement to the parent, and the parent’s statement to the physician must fall within an exception to the hearsay rule. Absent unusual circumstances, the child’s statement to the parent would, by itself, be admissible under OEC 803(4) — that statement was made to the parent for the purposes of medical treatment, describes symptoms and covers information that is “reasonably pertinent to diagnosis or treatment.” Similarly, the parent’s recounting of the child’s statement to the physician also falls within OEC 803(4) because that recounting is for purposes of medical diagnosis and treatment, etc. Thus, the double hearsay is admissible to establish that the child actually threw up.

That reasoning implicitly underlay our holding in Bauman. This case is analogous to Bauman and to the double-hearsay hypothetical just considered except, unlike in those cases, the patient/child here was not the source of the original “first leg” hearsay statement. Rather, the original statement, describing child’s conduct, was made by a third party (Eddie) and was, in turn, recounted by mother for the purpose of assisting in child’s diagnosis and treatment.

In this case, that distinction is immaterial. Here, as in Bauman, the original statement fell within an exception to the hearsay rule — OEC 803(18a)(b) — and, thus, was substantive evidence so long as mother’s statements to Jensen similarly “conform[ed] with an exception” to the hearsay rule. OEC 805.¹³ Mother’s statements to Jensen did so “conform” in that they satisfied OEC 803(4), just as did the mother’s statements in Bauman: Mother recounted Eddie’s complaints to Jensen for the purpose of assisting child’s diagnosis and treatment; those complaints, relating child’s conduct, described and related to child’s “symptoms”; and, as Jensen confirmed, they were pertinent to her diagnosis of child and her evaluation of the need for therapy. See Cornett, 121 Or App at 281 (statements made by child’s sex abuse victim to her treating therapist identifying her abuser were admissible under OEC 803(4)).

Mother’s recounting of Eddie’s complaints was for the purpose of assisting in the diagnosis and treatment of child. In determining mother’s motivation, we must refer to “the circumstances in which those statements were made.” State v. Barkley, 315 Or 420, 424, 846 P2d 390 (1993). Here, Jensen, who specialized in working with adolescent sexual offenders, testified that she evaluated child after a referral from another therapist who had been “providing therapy to the family.” At the outset, Jensen explained to both child and mother the purpose of the evaluation:

“I explained * * * what the interview process would be about and what the purpose of the evaluation was for. * * *

“It was, it was narrowly focused to look at sexual history and [child’s] potential for acting out in the future, sexual acting out.”

Mother’s statements were, thus, made in the context of, and were informed by, that explanation. See State v. Logan, 105 Or App 556, 562, 806 P2d 137, rev dismissed 312 Or 16 (1991) (court could conclude from therapist’s statements to child declarant that child’s motivation in making statements was to obtain diagnosis and treatment). Mother’s own testimony was consistent with Jensen’s rendition, and understanding, of the purpose of the interview:

“Q. [By child’s counsel]: Is it fair to say you were a concerned parent, saw things, and wanted to go to check on it?

“A. Yeah.”

Mother’s testimony also effectively refutes the premise underlying Judge Edmonds’s dissent, i.e., that mother’s statements to Jensen were somehow unreliable. See 164 Or App at 490 (Edmonds, J., dissenting). There is no reason why mother, who was seeking help for child, would lie in recounting Eddie’s complaints. Indeed, mother had every reason to accurately recount Eddie’s statements, and none to lie. Similarly, Jensen had no reason to lie. It was that “reliability” reality that underlay the trial court’s ultimate credibility-based disbelief of mother’s denials at trial.¹⁴

The trial court, thus, did not err in admitting and treating the double hearsay as substantive evidence and, particularly, in relying on Eddie’s complaints to mother as substantive evidence that child had, in fact, masturbated in Eddie’s presence. The trial court’s adjudication of child on the endangerment count ultimately rested on a credibility determination — i.e., that that evidence was more credible than the family members’ denials. On de novo review, we give substantial deference to a trial court’s credibility determinations. See, e.g., State ex rel Juv. Dept. v. G.P., 131 Or App 313, 322-23, 884 P2d 885 (1994) (Haselton, J., concurring). Accordingly, we affirm the adjudication on the endangering count.

We turn to the two harassment counts. The primary evidence with respect to those counts was Jensen’s testimony that child had admitted to her that he had urinated on, and rubbed feces on, Eddie. Child contends that those admissions were insufficient to support an adjudication on the harassment counts because they were not corroborated. See ORS 136.425(1) (“nor is a confession only sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed”). We disagree.

The same double hearsay that proved the endangerment count sufficiently corroborates child’s admissions of the conduct underlying the harassment count. Eddie complained to mother not only about child masturbating in front of him but also about the conduct alleged in the harassment counts. For the same reasons that the trial court treated Eddie’s complaints as credible evidence with respect to the endangering count, it properly viewed those complaints as credible and sufficient corroboration of child’s admissions with respect to the harassment counts. See State v. Lerch, 296 Or 377, 398, 677 P2d 678 (1984) (“some proof’ in ORS 136.425(1) “means that there is enough evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed”).

Affirmed.

1 The petition included other allegations, which the trial court ultimately determined that the state had failed to prove and, consequently, are not at issue on appeal.

2 Mother acknowledged that she had told Jensen that Eddie had complained about child smearing feces on him but said that she told Jensen that child had only been “pretending.” Mother also testified, with respect to the urination, that she told Jensen that, when the two boys would go to the bathroom at the same time, “they both peed on each other” — as they were urinating in the toilet, “the urine splashed and got on both of them.” Finally, with respect to the masturbation complaint, mother denied that Eddie had ever told her that child had masturbated in front of him or that she had conveyed such a complaint to Jensen. Rather, mother testified that child had merely engaged in making “masturbation gestures.”

3 OEC 803(18a)(a) states that the following shall not be excluded as hearsay regardless of the declarant’s availability:

“A complaint of sexual misconduct or complaint of abuse as defined in ORS 419B.005 made by the witness after the commission of the alleged misconduct or abuse at issue. Except as provided in paragraph (b) of this subsection, such evidence must be confined to the fact that the complaint was made.”

Because Eddie was available to testify — and did, in fact, testify — at the hearing, his statements were admissible as substantive evidence in their entirety, OEC 803(18a)(b), and not merely to prove “the fact that the complaint was made.” OEC 803(18a)(a).

4 After an extended colloquy, the court observed:

“Well, at this point I’m going to * * * receive the statements and then we can argue a little bit later about for what purpose. I don’t think 801(4) applies because those are prior statements that are made under oath as opposed ftol statements made to a third party, but — Okay.”

The court and the parties never revisited the issue.

5 As noted, the trial court did not describe its rationale for admitting and relying on the double hearsay testimony as substantive evidence. Consequently, it is possible, at least, that the court relied on OEC 803(4) notwithstanding the state’s contrary concession. See generally State v. Bea, 318 Or 220, 224, 864 P2d 854 (1993) (courts are not bound by state’s “concession concerning a legal conclusion”).

6 Notwithstanding child’s explicit concession, Judge Edmonds’s dissent argues that Eddie’s statements did not satisfy the requirements of OEC 803(18)(a)(b). See 164 Or App at 489-92 (Edmonds, J., dissenting). The dissent contends that we should, in fairness, engage in such a sua sponte analysis because we are not holding the state to its concession before the trial court. Id. at 490 (Edmonds, J., dissenting).

The dissent is wrong for at least two related reasons. First, although it is axiomatic that we may affirm on grounds not argued to the trial court, there is no authority for the proposition that, without invoking “plain error,” we can reverse the trial court on grounds not argued to it. Second,- far from invoking “plain error” on appeal, child explicitly conceded the admissibility of the first leg of the double hearsay.

Given child’s concession and principles of preservation, we will not engage in any analysis of the admissibility of Eddie’s statements to mother.

7 Compare, e.g., OEC 803(2) (“statements relating to a startling event or condition made while the declarant was under the stress of excitement * * (emphasis added); OEC 803(3) (“statement of the declarant’s existing state of mind * * *”) (emphasis added). In contrast, OEC 803(4) does not state “statements made for purposes of medical diagnosis or treatment and describing the declarant’s medical history * * *”).

8 The federal courts and courts of other states have reached similar conclusions. See, e.g., U.S. v. Yazzie, 59 F3d 807, 813 (9th Cir 1995) (“The plain language of TFRE 803(4)1 does not limit its application to patient-declarants. * * * In most circumstances, we believe the statements to a doctor by a parent of an injured child could easily qualify as a statement for the purpose of obtaining a proper medical diagnosis.”); Wilson v. Zapata Off-Shore Co., 939 F2d 260, 272 (5th Cir 1991) (same); State v. Huntington, 216 Wis 2d 671, 575 NW2d 268, 277 (1998) (“Young children cannot independently seek out medical attention, but rely on their caretakers to do so. A parent’s interest in obtaining necessary medical care for a child demonstrates fundamental indicia of reliability.”). See generally Weinstein & Berger, Weinstein’s Federal Evidence § 803.09(3] at 803-43 (2d ed 1997):

“The statements need not refer to declarant’s own physical condition. Statements relating to someone else’s symptoms, pain or sensations are admissible, provided that they are made for purposes of diagnosis or treatment of that person. The relationship between declarant and patient will usually determine admissibility. * * * As the relationship becomes distant, the statement becomes less reliable, both because the motive to tell the truth becomes weaker, and because a stranger, even in good faith, may not be able to describe another’s physical pain and suffering as reliably as an intimate.”

9 It is not apparent from our published opinion whether the mother’s statements to the physician were based on the child’s statements to mother or on mother’s own observations. However, our review of the briefs in Bauman makes it clear that mother was not present at the time of the abuse and that her only source of information was the child’s statements.

10 See Legislative Commentary to OEC 803(4), reprinted, in Kirkpatrick, Oregon Evidence at 522 (rationale for admitting statements is “declarant’s strong motivation to be truthful”).

11 Compare Weinstein & Berger, Weinstein’s Federal Evidence, § 803.09(31, at 803-43 (“In the case of a child, a court would surely presume the absence of any motive to mislead on the part of the parents.”) with U.S. v. Yazzie, 58 F3d at 813:

“A parent’s statement to a doctor identifying the assailant in a child molestation case must be treated as suspect. Indeed, one of the most bitter ironies of these cases is that the perpetrators are usually parents or relatives who are supposed to act in the child’s best interest. * i: In the drama that unfolds during the medical examination of a child molestation victim, a parent or guardian’s motive for casting blame may or may not be in the child’s best interest or for the purpose of medical diagnosis. For example, a parent might misidentify the assailant in an effort to protect the other spouse, to avoid reprisal from the other spouse, to avoid having suspicion cast upon him or her, or to incriminate falsely the other spouse for personal motives.

“Since child molestation cases challenge our assumptions about why certain statements might have been made, inquiry into the declarant’s purpose must be exacting. When a party seeks to introduce the statement of parent or guardian identifying a sexual offender, the proponent must demonstrate from the context and content of the statements that they were made for the purpose of medical diagnosis or treatment.”

12 See, e.g., Lovejoy v. U.S., 92 F3d 628, 632 (8th Cir 1996) (physician’s testimony, recounting mother’s statement that she had seen defendant standing over child with an erection and the child’s underwear had been pulled down, was admissible under FRE 803(4)).

13 To be sure, Eddie did not make his statements to mother for the purpose of obtaining treatment for child, but that is not controlling. Under OEC 805 the different elements of “hearsay within hearsay” may, and often do, fall under different exceptions. Indeed, the Legislative Commentary to OEC 805 provides the following illustrations:

“Another example is a dying declaration which incorporates a declaration against interest by another declarant. Still another is a police accident report that contains an assertion by one driver made immediately after a collision. The driver’s statement may be an excited utterance, and the police report a business record. The police report should be admissible as against a hearsay objection to prove the truth of the driver’s excited utterance.” Legislative Commentary to OEC 805, reprinted in Kirkpatrick, Oregon Evidence at 626-27.

14 The only person who may have had even a colorable reason for fabrication-sibling dynamics — would have been Eddie. However, as noted, child concedes on appeal that Eddie’s statements “conform with” OEC 803(18Xa).