State v. Gonzales

423 P.3d 149, 292 Or. App. 274
CourtCourt of Appeals of Oregon
DecidedJune 6, 2018
DocketA159679
StatusPublished
Cited by2 cases

This text of 423 P.3d 149 (State v. Gonzales) 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. Gonzales, 423 P.3d 149, 292 Or. App. 274 (Or. Ct. App. 2018).

Opinion

JAMES, J.

*276Defendant appeals a judgment of conviction for the offense of application of a Schedule II controlled substance to the body of another person, ORS 475.910 ; attempted *151sexual abuse in the first degree, ORS 163.427 ; attempted assault in the second degree, ORS 163.175 ; unlawful use of a weapon, ORS 166.220(1)(A) ; assault in the fourth degree, ORS 163.160 ; and menacing, ORS 163.190. On appeal, defendant raises three assignments of error. We reject the first and third without discussion, and write only to address his second assignment of error. There, he challenges the trial court's admission of a videotaped CARES interview with the declarant. Defendant argues that the videotaped statements were hearsay and did not qualify for admission under OEC 803(4), the hearsay exception for statements made for the purposes of medical diagnosis or treatment. Furthermore, defendant argues that admitting the videotaped statements was not harmless. In response, the state contends that defendant did not properly preserve his argument for appeal, but, nevertheless, that the videotaped statements were properly admitted under OEC 803(4). For the reasons explained below, we reverse and remand.

"Whether a statement satisfies the requirements of OEC 80[3(4) ] is a preliminary question of fact for the trial court." Dept. of Human Services v. J. G. , 258 Or. App. 118, 123, 308 P.3d 296 (2013). "[A]s with any other foundational fact, the declarant's motivation must be determined on a case-by-case basis by reference to the circumstances under which those statements were made." Id. at 123-24, 308 P.3d 296 ; see also State v. Barkley , 315 Or. 420, 424, 846 P.2d 390 (1993). "We will affirm the trial court's ruling if there is evidence in the record from which the court could have found by a preponderance of the evidence that a [declarant's] statements were made for the purposes of medical diagnosis or treatment." J. G. , 258 Or. App. at 124, 308 P.3d 296 ; see also State ex rel. Juv. Dept. v. Pfaff , 164 Or. App. 470, 494, 994 P.2d 147 (1999). "However, in assessing whether the admission of hearsay evidence was error and, if so, whether the error was harmless, we review all pertinent portions of the record."

*277State v. Hernandez-Fabian , 264 Or. App. 26, 27, 330 P.3d 675 (2014). Thus, we review the facts in accordance with that standard.

The case before us arises from allegations that defendant, uncle to the declarant and brother to the declarant's father, threatened the declarant, attempted to pull her pants down, punched her, and chased her father around with a knife. The declarant, almost 16 years old, called 9-1-1 twice during the night of the alleged incidents. Two police officers responded to the remote family property, arrested defendant, and referred the declarant to CARES for assessment.

At trial, the state argued that defendant, the declarant, and her father were part of a "very dysfunctional family" altercation and it was only after the declarant was interviewed by the CARES forensic interviewer that defendant's alleged drug use with the declarant came to light. Both the declarant and the CARES forensic interviewer, Samantha Fenner, testified at trial. The state moved to admit Fenner's videotaped interview with the declarant at the CARES facility, reciting OEC 803(4), the hearsay exception for statements made for the purposes of medical diagnosis or treatment. Defendant objected, arguing that the videotaped statements were hearsay and did not qualify under the OEC 803(4) exception. The trial court allowed the video to be played for the jury and it was admitted into evidence.

On appeal, defendant argues that the trial court erred in admitting the videotaped CARES interview, because the evidence does not support a finding that the declarant's statements to CARES were motivated by the purposes of medical diagnosis or treatment. The state responds, initially, that the error is not preserved. According to the state, defendant's argument on appeal is "qualitatively different" from his pretrial challenge to the videotaped statements, which advanced a more categorical challenge to whether statements to CARES can ever fit within OEC 803(4).

The state's argument parses the issues too thinly. See *278State v. Clemente-Perez , 357 Or. 745, 752, 359 P.3d 232

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Amador-Hernandez
338 Or. App. 479 (Court of Appeals of Oregon, 2025)
Dept. of Human Services v. J. D. H.
333 Or. App. 309 (Court of Appeals of Oregon, 2024)

Cite This Page — Counsel Stack

Bluebook (online)
423 P.3d 149, 292 Or. App. 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzales-orctapp-2018.