# State v. Vosika

> Court of Appeals of Oregon · January 14, 1987 · 83 Or. App. 298

URL: https://www.frixlaw.com/law-library/cases/9626824

## Case

- **Full name:** STATE OF OREGON, Respondent, v. TAMARA VOSIKA, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** January 14, 1987
- **Citations:** 83 Or. App. 298; 731 P.2d 449; 1987 Ore. App. LEXIS 2830
- **Precedential status:** Published
- **Opinion:** Concurrence by Young
- **Judges:** Hoomissen, Van Hoomissen Young, Van Hoomissen, Young
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626824

## How later opinions describe it (automated extraction)

- holding that, despite the fact that the three-year-old victim was “too young to understand that the statements she was making could be related to her diagnosis or treatment!,]” the victim’s statements to a physician were themselves inherently reliable

## Opinion text

YOUNG, J.,
specially concurring.
I concur in the majority’s opinion, except to the extent that it holds that Dr. Sabin’s testimony about the identification which the child made is admissible. As to the latter holding, I believe that the majority has taken an impermissible end run around State v. Campbell, 299 Or 633 , 705 P2d 694 (1985).
In Campbell , the court held that it was error to admit unexcited hearsay declarations of child sexual abuse under the so-called residual hearsay exception of OEC 803(24). 299 Or at 640 . As I understand Campbell , such hearsay is admissible only if it fits within one of the specific exceptions to the rule. 1 One of those exceptions is OEC 803(4):
“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause of [sic:or] external source thereof in so far as reasonably pertinent to diagnosis or treatment.” (Emphasis supplied.)
I agree with the majority’s adoption of a two-part test for the admissibility of hearsay statements under the rule:
“[F]irst, is the declarant’s motive consistent with the purpose *311 of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment.” United States v. Iron Shell, 633 F2d 77, 84 (8th Cir 1980).
I assume that the second requirement is met here. It is the majority’s analysis of the first requirement that troubles me.
OEC 803(4) plainly requires that the statement be made for the purposes of diagnosis or treatment. The reason for that requirement is the reason why the exception exists at all; the patient’s selfish interest in receiving proper treatment guarantees the trustworthiness of the statement. See Legislative Commentary to OEC 803(4), reprinted in Kirkpatrick, Oregon Evidence 360-61 (1982). The majority admits that “the victim was too young to understand that the statements she was making could be related to her diagnosis or treatment.” 83 Or App at 309. On this record, I agree with that conclusion. For that reason, in my view, the hearsay was not admissible under OEC 803(4).
The majority, however, goes on to hold that the hearsay is admissible under OEC 803(4), because it is “inherently reliable” for other reasons. 83 Or App at 309. I cannot agree that those other reasons are relevant to whether the hearsay was admissible under the specific exception of OEC 803(4). By so holding, the majority has rewritten OEC 803(4) by incorporating the residual hearsay exception in OEC 803(24) into OEC 803(4). State v. Campbell, supra, does not permit that.
I do not understand State v. Campbell, supra, as limiting the admissibility of such evidence to OEC 803(18a), given the court’s obvious implication that such evidence could be admitted under the excited utterance exception of OEC 803(2):
“[CJounsel miss the main reason this testimony cannot be admissible under the residual hearsay exception. That reason is that the legislature made a conscious decision to restrict unexcited hearsay declarations of sexual misconduct by enacting OEC 803(18a) * * 299 Or at 640 . (Emphasis supplied.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626824. Public record. Not legal advice.