State ex rel. Juvenile Department v. Black

DEITS, C. J.,

dissenting.

The majority holds that the evidence in this record is not sufficient to support the trial court’s determination that youth was within the jurisdiction of the juvenile court. For the reasons that I will discuss, I disagree with that holding and would affirm the trial court.

Although the majority discusses some of the evidentiary issues raised by youth, it does not directly address the evidentiary questions that she raised because it concludes that, even if the disputed evidence is considered, the state has failed to prove beyond a reasonable doubt that youth committed acts that would constitute first-degree sexual abuse, ORS 163.427(1)(a), and first-degree sodomy, ORS 163.405(1)(b). It is necessary for me to address the evidentiary questions, however, because I believe that, if the disputed evidence, namely the videotaped interview of child, and his mother’s (McNamara’s) testimony about statements that child made to her, is considered, I would conclude beyond a reasonable doubt that youth committed the alleged acts.

Youth argues that the trial court erred in admitting McNamara’s testimony about the statements that child made to her and the videotape of the interview of child by a state police officer and a DHS worker. The trial court admitted that evidence under OEC 803(18a)(b), the exception to the hearsay rule for statements made by children concerning sexual abuse. Youth contends that the evidence was inadmissible because the statements were unreliable and because the state did not provide sufficient corroboration of the act of abuse as required by OEC 803(18a)(b).

OEC 803(18a)(b) provides, in pertinent part:

“A statement made by a person concerning an act of abuse * * * is not excluded by ORS 40.455 if the declarant * * * is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was *485made * * *. However, if a declarant is unavailable, the statement may be admitted in evidence only if the proponent establishes that the time, content and circumstances of the statement provide indicia of reliability, and in a criminal trial that there is corroborative evidence of the act of abuse and of the alleged perpetrator’s opportunity to participate in the conduct and that the statement possesses indi-cia of reliability as is constitutionally required to be admitted. * * * If the declarant is found to be unavailable, the court shall then determine the admissibility of the evidence. * * * In determining whether a statement possesses indicia of reliability under this paragraph, the court may consider, but is not limited to, the following factors:
“(A) The personal knowledge of the declarant of the event;
“(B) The age and maturity of the declarant or extent of disability if the declarant is a person with developmental disabilities;
“(C) Certainty that the statement was made, including the credibility of the person testifying about the statement and any motive the person may have to falsify or distort the statement;
“(D) Any apparent motive the declarant may have to falsify or distort the event, including bias, corruption or coercion;
“(E) The timing of the statement of the declarant;
“(F) Whether more than one person heard the statement;
“(G) Whether the declarant was suffering pain or distress when making the statement;
“(H) Whether the declarant’s young age or disability makes it unlikely that the declarant fabricated a statement that represents a graphic, detailed account beyond the knowledge and experience of the declarant;
“(I) Whether the statement has internal consistency or coherence and uses terminology appropriate to the declar-ant’s age or to the extent of the declarant’s disability if the declarant is a person with developmental disabilities;
“(J) Whether the statement is spontaneous or directly responsive to questions; and
*486“(K) Whether the statement was elicited by leading questions.”

(Emphasis added.)

Youth does not dispute that child was unavailable. Further, I agree with the majority’s suggestion that, under the text of OEC 803(18a)(b), the corroboration requirement of the rule is not applicable in a juvenile proceeding. 191 Or App at 480-81 n 2. Consequently, the critical evidentiary issue here is whether the state established that the time, content, and circumstances of child’s statements provide sufficient indicia of reliability.

The trial court made express findings on the factors listed in OEC 803(18a)(b)(A) to (K). The court found as follows:

• Factor A: The out-of-court statements made by child were based on his own personal knowledge.
• Factors B and H: Child’s youth makes him more credible and less likely to manufacture a story of this nature, one with graphic detail that is beyond the knowledge, experience, and imagination of a four-year-old.
• Factor C: There is certainty that the statements were actually made, because they were videotaped and because McNamara is a credible witness.
• Factor D: There is no apparent motive that child would have to falsify or distort the event.
• Factors E, J, and K: The statements child made to his mother were spontaneous and not provoked by questioning; the videotaped statements were responsive to questioning but not elicited by leading questions.
• Factor F: There were three people who heard the statements (on two different occasions), and the statements are videotaped.
• Factor I: Child’s statements have internal consistency and coherence. As support for that finding, the *487trial court noted that child corrected the interviewers several times regarding the order of events.

Youth disputes the above findings of the trial court on two grounds. First, she asserts that the trial court should have placed more emphasis on child’s “motive to falsify.” According to youth, McNamara stopped using child’s previous babysitter because child was unhappy with her and so the trial court similarly should have concluded that child fabricated a story about youth touching him so that she would not babysit him any more. Youth’s argument on this point is highly speculative. There is evidence in the record that child’s previous babysitter did not play with him as much as youth did. Child also stated that the previous babysitter was “very, very bad.” However, there is no evidence that McNamara considered the opinion of her four-year-old sonin deciding to find another babysitter. Instead, McNamara explained that she began using youth instead of the former babysitter after several occasions when the babysitter was not there when McNamara went to pick her up. Moreover, child could have picked up from his mother the idea that the previous babysitter was “bad” when it became clear that she was frustrated with the babysitter’s unreliability; there is no indication in the record that child believed that babysitter was “bad” before McNamara decided not to use her any more. Finally, the only indications in the record that child disliked youth or her behavior came in the context of child discussing the touching and youth’s telling him not to tell anyone: there is no indication that child generally disliked youth or wanted her not to babysit him. Accordingly, I would conclude that the trial court correctly gave little weight to the possibility of any motive to falsify in assessing the reliability of the hearsay statements.

Youth also argues that the trial court erred in its consideration of the reliability of the challenged evidence because, in youth’s view, child’s testimony lacked “internal consistency and coherence.” On de novo review, considering all of the statements that child made to McNamara and his grandmother, as well as to the persons who interviewed him in the videotape, I agree with the trial court’s assessment that child’s statements were reasonably consistent.

*488To support her assertion that child made inconsistent statements, youth contends that there were inconsistencies in child’s reporting of the type of touching that occurred and that he recanted some of his allegations. Child did describe numerous types of touching that happened to him. However, the fact that he eventually revealed that youth touched him in three different ways does not necessarily make child’s statements inconsistent. In fact, they were not. None of child’s later statements contradicted earlier statements that he had made. Although he gradually revealed that the three types of touching occurred, he never said anything like, “No, she didn’t kiss my penis, she touched me with her hand.” Rather, he kept adding details to his account of what happened. Significantly, none of the details that he revealed were directly contradicted by any other detail.

Youth also asserts that there were inconsistencies in child’s statements about whether his pajamas were zipped when youth allegedly touched him. Again, a close look at the evidence reveals that there is no inconsistency in child’s testimony. Child said that he had his pajamas on and that they were zipped and that youth “zipped them.” He then said that youth “opened them.” Youth could well have helped child get into his pajamas and then later opened them as child alleged.

The inconsistencies that youth points to in child’s statements are minor at best. Particularly considering his young age, child’s testimony was, in fact, remarkably coherent and consistent. As discussed above, although he reported more details to his interviewers, none of the statements that he made to McNamara, his grandmother, or the interviewers was contradictory. Child was completely consistent about the time and circumstances that he related: in his pajamas, on the couch in his living room, on a certain date, and all in one incident. He, in fact, corrected the interviewers when they suggested other variations of what happened. For example, when the interviewers suggested that something might have occurred in the big bed at his house, he replied that nothing happened there: child repeatedly said that it happened on the couch. Considering all of the factors relating to reliability identified in OEC 803(18a)(b), I agree with the trial court that there were sufficient indicia of reliability to justify the admission of the hearsay evidence.

*489I would hold that the trial court properly admitted the hearsay evidence. I would also hold that, on de novo review, ORS 419A.200(6)(b), the evidence proves beyond a reasonable doubt that youth committed acts that, if she were an adult, would constitute the crimes of first-degree sexual abuse and first-degree sodomy and, consequently, that the record is sufficient to support the jurisdiction of the juvenile court.

This is a case that turns on the credibility of the witnesses, in particular, child and youth. Obviously, one of them is telling the truth and one is not. The trial court found that child was telling the truth and that youth was not. As a general matter, although our review is de novo in this type of case, we give significant weight to the trial judge’s determination of credibility, particularly when the credibility determination is based on the witnesses’s demeanor. In re Schenck, 318 Or 402, 420, 870 P2d 185, cert den, 513 US 871 (1994); State ex rel Juv. Dept. v. Smith, 185 Or App 197, 222, 58 P3d 823 (2002), rev den, 335 Or 402 .(2003); State ex rel Juv. Dept. v. G. R, 131 Or App 313, 319, 884 P2d 885 (1994).

The majority concludes that we owe little deference to the trial court’s determination of child’s credibility because we have the same ability to view the videotape as did the trial court. I agree that, under these circumstances, we owe less deference to the trial court’s credibility findings with respect to child. Further, although our evaluation of child’s credibility depends in part on our observations of his demeanor, it also depends on our own assessment of the internal consistency, logic, and corroboration of child’s statements. In such circumstances, the majority is right that we owe less deference to the trial court’s credibility determination. In re Schenck, 318 Or at 420-21.

Although I agree with the majority that we can assess child’s credibility without giving significant weight to the trial court’s credibility findings, my assessment of child’s credibility differs from that of the majority. As I discussed above, I found child’s statements to be remarkably consistent, detailed, and believable. The majority identifies three factors that it believes create reasonable doubt in this case. First, it asserts that child’s reports to his mother and to the *490investigators differed substantially. I disagree. As discussed with respect to the reliability of child’s statements, child did eventually add more details to his account of what happened, but the added details did not contradict or undermine his earlier statements about what had happened. He never changed his story or denied that something that he had described earlier happened. For example, child initially told McNamara and his grandmother that youth had kissed his penis. Although he revealed to the interviewers that youth had touched him in other ways, he continued to tell them that youth had also kissed his penis.

The majority also discounts child’s credibility because, in its view, child embellished his story for the interviewers. Specifically, the majority notes that child said that youth had rubbed on his penis “again, again, again, again, again and again” and says that youth kissed his penis “more and more and more.” I do not view the those comments by child as embellishment. Rather, this sort of talking, in my view, reflects a four-year-old’s childish way of describing what was a traumatic event. Moreover, child produced the repetitive responses only at the end of a 30-minute interview — a long span of time for a four-year-old — when it seemed as if child were growing tired. I believe that the majority attributes too much significance to the use of language in this way by child.

Finally, the majority suggests that child may have been exposed to other sexual activity at the Salvation Army, thereby lessening the credibility of his statements. However, other than a single comment that child made to the interviewers that youth rubbed on his penis with her vagina “like Brittany’s boyfriend,” there is simply no evidence that child was exposed to any sexual behavior at the Salvation Army or that, in fact, any sexual activity occurred at the Salvation Army. Such an assertion is quite speculative.

For the reasons discussed above, I find child’s testimony to be believable. That, however, is only half of the picture. The other half of the picture is youth’s testimony. We cannot evaluate child’s testimony in a vacuum. In deciding who is telling the truth in this case, we must also assess the *491credibility of the other critical witness — youth—and, consequently, the relative credibility of both witnesses. The trial court implicitly found youth not to be credible by accepting child’s version of events and not youth’s: “[I]t’s a decision that I would like to avoid. But, [youth], I’m convinced you did what you’re charged with doing.”

In my opinion, we owe considerable deference to the trial court’s conclusion regarding youth’s credibility. Only the trial court had the opportunity to observe youth, unlike child, and to directly assess youth’s credibility as a witness. Further, because of the fairly limited and straightforward nature of youth’s testimony, the assessment of youth’s credibility is more dependent on the court’s observations concerning demeanor rather than factors such as internal consistency that we could assess as well as the trial court. The majority offers no real explanation for why it essentially completely disregards the trial court’s assessment of youth’s truthfulness, nor does the majority explain how it assessed youth’s credibility relative to child’s credibility in deciding who was telling the truth.

For all of the above reasons, I believe that the evidence shows beyond a reasonable doubt that youth committed the alleged acts and is within the jurisdiction of the juvenile court. Accordingly, I would affirm the trial court, and I respectfully dissent.