State v. Alvarez

822 P.2d 1207, 110 Or. App. 230, 1991 Ore. App. LEXIS 1870
CourtCourt of Appeals of Oregon
DecidedDecember 11, 1991
Docket90-C2-0294; CA A65938
StatusPublished
Cited by4 cases

This text of 822 P.2d 1207 (State v. Alvarez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alvarez, 822 P.2d 1207, 110 Or. App. 230, 1991 Ore. App. LEXIS 1870 (Or. Ct. App. 1991).

Opinion

*232 DEITS, J.

Defendant seeks reversal of his conviction for rape in the first degree, ORS 163.375, and sexual abuse in the first degree. ORS 163.425. He assigns error to the admission of hearsay statements made to the child’s treating physician and denial of his motions for judgment of acquittal and for a new trial. We affirm.

The victim is a 5-year-old girl. At the time that the rape allegedly occurred, she lived with her mother and two siblings. Other persons, including defendant, had also lived with them for varying lengths of time. On January 3,1990, a representative of Children’s Services Division (CSD) visited the home. She found that the child was malnourished and underweight, had head lice and was afraid of men. She was placed in a foster home. There, she would hide behind her foster mother when men were in the room. A few weeks after placement, the foster mother observed her make sexually suggestive motions with her pelvis. After a conversation with the child, the foster mother became suspicious that she had been sexually abused and notified the police. On February 14, 1990, a police officer interviewed the child at the police station. The officer spoke in Spanish, the child’s principal language. Using anatomical sketches, she showed how she had been touched in her genital area by a penis and that it had been “put inside.” When asked who had done that, she said that it was her “dad” and that he was “Gilberto Perez.” The trial court found that the child was not competent to testify at trial. However, it adhiitted the statements that she made to the police officer under OEC SOSUSaXb), 1 which permits the admission of such evidence “only if there is corroborative evidence of the act of sexual conduct and of the defendant’s *233 participation in the conduct.” The trial court concluded that the statements were corroborated by the testimony of Goetz, a pediatrician who examined the child.

In Goetz’s testimony, he described his examination of the child. He said that he had obtained part of the medical history from her and part from her foster mother and that sometimes the foster mother had translated for the child. 2 The examination revealed tears in the child’s hymen and past scarring of the hymenal tissue caused by “a penetrating sort of injury or wound.” Goetz stated:

“One of the questions I asked her is who touched her. She responded with the Hispanic pronunciation of somebody, which I did not know. I did not understand her pronunciation. Again, I asked the foster mother for help, if she could interpret for me, and she did. When I asked the, child where she was touched by that individual, she pointed to the vaginal area and the perianal area. Then I asked her what was used to touch her there, and the child gave me no response. So she did not respond on what was used to touch in that area. I also asked her whether anybody else had ever touched her in those particular areas. And she responded no to that question.”

Goetz testified that, when he asked the foster mother what the name was that the child had said when she was asked who had touched her, the foster mother said, “Gilberto.”

Defendant’s only assignment of error is that the trial court erred in admitting the child’s identification of defendant to the physician under OEC 803(4), 3 which provides that statements made for medical diagnosis or treatment are exceptions to the hearsay rule and, thus, are admissible. As was explained in State v. Moen, 309 Or 45, 55, 786 P2d 111 (1990):

*234 “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.’ ”

Defendant, relying on State v. Vosika, 83 Or App 298, 309, 731 P2d 449, mod 85 Or App 148, 735 P2d 1273 (1987), first argues that the child was too young to understand that, when she identified defendant, she was making the statement for the purposes of medical diagnosis or treatment. In Vosika, we concluded that a three-year-old declarant, who was being treated for the psychological effects of sexual abuse, was too young to understand that the statements that she was making were related to her diagnosis or treatment. However, Vosika does not hold that a young child may never be found to have made statements for purposes of medical diagnosis and treatment. In other circumstances in which a child may be too young to articulate that she made statements for purposes of medical diagnosis or treatment, we have held that the record supported a finding that the statements were made for that purpose. State v. Newby, 97 Or App 598, 601, 777 P2d 994, rev den 308 Or 660 (1989).

We hold that the record here supports the conclusion that the child was aware that she was undergoing a medical examination. Goetz explained that he conducted the examination as if it were a routine medical exam:

“We will do this sort of exam just as we would do a general examination and most often start by examining the heart and the lungs and the ears, nose and throat and going through a full examination and then looking at the genitalia area as the last part of the exam and, hopefully, by that point have gained some of the child’s rapport and trust that this is not going to be all that much of a threatening procedure for her. Oftentimes we’ll get the adult that accompanies the child involved, too. So they’re there in support of the child.”

*235 Although the child likely could not have articulated what the purpose of her statements was, we conclude that it is reasonable to infer that the child understood that she was making the statements for purposes of the medical examination.

Defendant also argues that the statements to Goetz were not admissible, because they did not meet the requirements of State v. Moen, supra, 309 Or at 55, that they must relate to the medical problem and be reasonably pertinent to diagnosis or treatment. However, in the examination, the doctor found tears in the child’s hymen and scarring of the hymenal tissue, which he said is atypical in a five-year-old girl.

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Related

State v. Booth
862 P.2d 518 (Court of Appeals of Oregon, 1993)
State Ex Rel. Juvenile Department of Multnomah County v. Cornett
855 P.2d 171 (Court of Appeals of Oregon, 1993)
State v. Renly
827 P.2d 1345 (Court of Appeals of Oregon, 1992)

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Bluebook (online)
822 P.2d 1207, 110 Or. App. 230, 1991 Ore. App. LEXIS 1870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alvarez-orctapp-1991.