Submitted on November 27, 2012.
Marion County Circuit Court 09C41096, Thomas M. Hart, Judge.
Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
ORTEGA, P. J.
Defendant appeals a judgment of conviction on two counts of first-degree sexual abuse, ORS 163.427, and assigns error to the trial court's denial of his motion to introduce testimony by a school psychologist and family therapist about the victim's statements made to the therapists that would show that the victim was fearful around men, defiant around authority figures, prone to exaggeration, and prone to hallucinations. Defendant argues that the trial court's disallowance of that testimony as impeachment evidence was improper because (1) it was admissible as witness credibility evidence under OEC 607, 608(1), and 609-1(1), and (2) it was not subject to the psychotherapist-patient privilege, OEC 504(2), because that privilege was abrogated by ORS 419B.040(1), an exception for proceedings resulting from mandatory child abuse reports. Because we conclude that ORS 419B.040(1) does not provide an exception to the psychotherapist-patient privilege for the testimony regarding the victim's credibility, we decline to address defendant's arguments about the admissibility of the testimony under the credibility evidence rules. Accordingly, we affirm.
We review the admissibility of privileged evidence for errors of law. State v. Langley, 314 Or 247, 263, 839 P.2d 692 (1992), adh'd to on recons, 318 Or 28, 861 P.2d 1012 (1993). The following facts are pertinent to our review. The 10-year-old victim lived with her grandmother and her grandfather, defendant. The victim reported to her school counselor that defendant had sexually abused her. That report triggered a mandatory child abuse report that resulted in a criminal investigation, which ultimately led to defendant's conviction on two counts of first-degree sexual abuse.
Before trial, defendant moved to allow testimony based on two reports: one prepared by a therapist, Vercoutere, and the other prepared by a public school psychologist, Young. The reports were prepared about a year before the abuse of which defendant was accused. Vercoutere prepared a mental health assessment report as part of the victim's involvement with social services. The assessment noted that the victim preferred to live with her mother rather than defendant and the victim's grandmother, that she was fearful around men, particularly defendant, and that she exhibited "defiant behaviors[.]" Young met with the victim to see if she qualified for special education services, and his report mentioned that the victim "might have exaggerated anything that she thought might get some attention." The report also referenced the victim's self-described hallucinations.
Defendant argued that testimony by the therapists about the victim's statements included in the reports was admissible under OEC 607, 608(1), and 609-1(1)as evidence to attack the victim's credibility as a witness. The trial court denied defendant's motion, ruling that the credibility determination belonged to the jury and that the reports were privileged under OEC 504(2), which provides:
"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family."
Defendant acknowledges that testimony from the therapists about the reports is subject to the psychotherapist-patient privilege, but argues that the child abuse exception for judicial proceedings arising out of mandatory reporting requirements, ORS 419B.040(1), allows for the admission of the therapists' testimony. ORS 419B.040(1) provides:
"In the case of abuse of a child, * * * the psychotherapist-patient privilege * * * shall not be a ground for excluding evidence regarding a child's abuse, or the cause thereof, in any judicial proceeding resulting from a ...