State v. Vosika

731 P.2d 449, 83 Or. App. 298, 1987 Ore. App. LEXIS 2830
CourtCourt of Appeals of Oregon
DecidedJanuary 14, 1987
DocketC 84-02-30610; CA A36528
StatusPublished
Cited by35 cases

This text of 731 P.2d 449 (State v. Vosika) 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. Vosika, 731 P.2d 449, 83 Or. App. 298, 1987 Ore. App. LEXIS 2830 (Or. Ct. App. 1987).

Opinions

[300]*300VAN HOOMISSEN, J.

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) and OEC 803(24).1 Defendant was convicted.

[301]*301Defendant 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 P2d 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.2 In 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 meaningftil 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.3 She relies on State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980). In Deiz, the Supreme Court held that, under the Oregon constitution, [302]*302the 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.

OEC 615 provides, in relevant part:

“At the request of a party the 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. 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 ádmissible. The state concedes that the trial court erred in admitting the evidence under OEC 803(24). See State v. Campbell, supra, 299 Or at 640. 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 [303]*303803(24), because the legislature has provided a specific exception to the hearsay rule in OEC 803(18a). 299 Or at 640. 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.

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Bluebook (online)
731 P.2d 449, 83 Or. App. 298, 1987 Ore. App. LEXIS 2830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vosika-orctapp-1987.