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State v. Gonzales

Court of Appeals of Oregon

June 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LEWIS LEE GONZALES, Defendant-Appellant.

          Argued and submitted July 25, 2017

          Klamath County Circuit Court 1500546CR Roxanne B. Osborne, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for multiple criminal offenses, including application of a Schedule II controlled substance to the body of another person, ORS 475.910; attempted sexual abuse in the first degree, ORS 163.427; and attempted assault in the second degree, ORS 163.175. On appeal, defendant raises multiple assignments of error. In his second assignment, defendant challenges the trial court's admission of a videotaped CARES interview with the complainant. In particular, 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. 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).

         Held:

         The issue that defendant raised on appeal was fairly encompassed within the parties' arguments below, and the principles of preservation were adequately served. In this case, although the CARES forensic interviewer may have had the subjective [292 Or. 275] belief that her interview with the complainant was for the purposes of medical diagnosis or treatment, on this record there was no evidence to support a finding that the complainant's subjective belief was that her own statements to CARES were for the purposes of medical diagnosis or treatment. Rather, as the complainant described, the complainant's subjective belief was that the interview at CARES was part of an on-going criminal investigation. Thus, it was error to admit the videotaped statements under the hearsay exception for medical diagnosis or treatment, OEC 803(4).

         Reversed and remanded.

         [292 Or. 276] JAMES, J.

         Defendant 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 sexual 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 complainant. 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 8O[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; 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; 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." State v. Hernandez-Fabian, 264 Or.App. 26, 27, 330 P.3d 675');">330 P.3d 675 [292 Or. 277] (2014). Thus, we review the facts in accordance with that standard.

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


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