State v. J. H. ( 2023 )

640
Argued and submitted March 31, 2022, reversed and remanded June 28, 2023
In the Matter of J. H.,
a Youth.
STATE OF OREGON,
Respondent,
v.
J. H.,
Appellant.
Washington County Circuit Court
20JU02775; A175034
533 P3d 640
In this juvenile delinquency appeal, youth seeks reversal of the juvenile
court’s judgment finding youth within its jurisdiction for conduct that, if com-
mitted by an adult, would constitute one count of first-degree sexual abuse. On
appeal, youth asserts that the juvenile court erred by ruling that a four-year-old
witness was competent to testify. Held: Applying State v. Sarich, 352 Or 601,
616, 291 P3d 647 (2012), the Court of Appeals concluded that the juvenile court
applied an incorrect legal standard to determine whether the witness was com-
petent to testify under OEC 601. Although the juvenile court accurately focused
on the witness’s general ability to perceive, recollect, and communicate, it did not
make a determination of the witness’s ability to perceive, recollect, and commu-
nicate about issues to be decided at trial. Further, the juvenile court’s evidentiary
error was not harmless.
Reversed and remanded.
Brandon M. Thompson, Judge.
Ginger Fitch argued the cause for appellant. Also on the
brief was Youth, Rights & Justice.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
POWERS, P. J.
Reversed and remanded.
Cite as 326 Or App 640 (2023) 641
POWERS, P. J.
In this juvenile delinquency appeal, youth seeks
reversal of the juvenile court’s judgment finding youth within
its jurisdiction for conduct that, if committed by an adult,
would constitute one count of first-degree sexual abuse. On
appeal, youth asserts that the juvenile court erred by ruling
that T was competent to testify. For the reasons explained
below, we conclude that the juvenile court erred when it
applied an incorrect legal standard to determine whether a
witness was competent to testify under OEC 601 and that
the error was not harmless. Accordingly, we reverse and
remand.
The relevant facts are uncontested. The events giv-
ing rise to the juvenile court proceeding stem from youth
babysitting his three-year-old cousin, T, during the summer
of 2019. In November of that year, T told his parents that
youth had sexually abused him. T’s parents contacted law
enforcement, who investigated, and the state eventually
filed a petition in juvenile court asserting that youth was
subject to the court’s jurisdiction for conduct that, if commit-
ted by an adult, would constitute one count of sodomy in the
first degree, ORS 163.405, and two counts of sexual abuse in
the first degree, ORS 163.427.
As the jurisdictional hearing began in October
2020, the juvenile court held an OEC 104 hearing to assess
T’s competency to testify. Beginning when the court was
attempting to swear in T as a witness and continuing
throughout the preliminary hearing, the court and others
in the courtroom repeatedly asked T to sit down, reposition
himself, and pay attention to the questions being asked. In
addition, T, who was four years old at the time of the hear-
ing, would begin to sing “Twinkle, Twinkle, Little Star”
intermittently throughout the hearing.
For example, as T was getting settled, the juvenile
court began by asking T his name:
“THE COURT: Can you tell me your—
“A: Twinkle, twinkle—
642 State v. J. H.
“THE COURT: Why don’t you tell me your name in
the microphone?
“A: (Indiscernible.)
“[Prosecutor]: [T], can you turn around and—
“A: Twinkle, twinkle—twinkle—
“THE COURT: Can you tell me—yeah, got it. What
did—what did mom—
“UNIDENTIFIED SPEAKER: Okay. We’re going to
leave this right here. Hey, [T].
“A: Twinkle, twinkle—
“UNIDENTIFIED SPEAKER: Hey, [T]. Can you sit
all the [way] back there? Can you have your back touch
that? Perfect. And then can you swing—swing your legs
that way and face the judge? Do you see him back there?
“THE COURT: Hi.
“UNIDENTIFIED SPEAKER: Can you speak with
him?
“THE COURT: I’ve got some questions. Can you tell
me your whole name? What’s your full name?
“A: [T].
“THE COURT: What’s your last name, [T]?
“A: One, two, three, two, one.
“THE COURT: What’s that?
“A: T-q-r-s.”
The court then repeatedly asked T his age, and T responded
a few times by again attempting to sing “twinkle, twinkle.”
Eventually, T provided some sort of nonaudible response
that prompted the juvenile court to say: “Is that four? Yeah.”
The court then asked if T knew why he was there, and T
responded: “Tell the truth.”
The prosecutor began her questioning by asking T
about a recent past event, viz., whether he could recall what
the prosecutor had worn the day prior:
“Q: Hey, [T]. Do you remember seeing me yesterday?
Cite as 326 Or App 640 (2023) 643
“A: (No audible response.)
“Q: Yeah. I had a different color face mask, though,
right?
“A: Yeah.
“Q: Yeah. * * * Well, no, can you stay right there? Make
sure your back keeps touching the—
“A: I’m going to draw TRS.[1]
“Q: Maybe not right now, but, actually, if we’re looking
at the markers, let’s talk about the markers. How many
markers do we have here?
“A: One, two, three, two.
“Q: Let’s talk about the colors. What color is this?
“A: Black.”
The prosecutor continued asking T questions about colors
and then asked T whether he could recognize whether it was
“a truth or a lie” that her shirt was pink (T said it was a lie
and identified her shirt as blue) and what he had for break-
fast (T said “water and coffee,” which was a “truth” to him,
and also testified that he had “peanut butter” for breakfast).
After T’s testimony, the parties turned to their
arguments. The prosecutor acknowledged the inaccuracy of
some of T’s responses, explaining that it was “an indication
of his very young age,” and asserted that, “ultimately, he
was able to convey to the Court certain things about his day,
what color shirt I was wearing, simple things for a four-and-
a-half-year-old.” Youth argued that T was not competent to
testify, referring to other portions of T’s testimony where
he was unable to answer basic questions, showed a limited
ability to take direction, and “did not answer the questions
that were asked of him when it came to shows, when it
came to breakfast. He * * * answered things that were just
* * * not even related to the question.” In rebuttal, the state
acknowledged that T’s responses were “barely there,” cit-
ing his young age, “nervousness,” and “distractibility,” and
stressed that the competency determination is “a very lib-
eral standard and it’s a very low standard for competency.”
1
The record does not reflect what T meant by “TRS.”
644 State v. J. H.
The juvenile court concluded that T was competent to testify
and proceeded to a bench trial. As noted earlier, the juvenile
court found youth within its jurisdiction, and this timely
appeal follows.
Preliminary questions concerning the qualification
of a person to be a witness are determined by the court.
State v. Sarich, 352 Or 601, 613-14, 291 P3d 647 (2012) (citing
OEC 104(1)). The proponent of the evidence must establish
such facts to the court by a preponderance of the evidence.
State v. Lawson, 352 Or 724, 754, 291 P3d 673 (2012) (citing
State v. Carlson, 311 Or 201, 209, 808 P2d 1002 (1991)). The
Supreme Court explained that our review of a trial court’s
competency determination involves a two-step process.
First, we determine whether the trial court applied the cor-
rect legal standard to determine competency. Second, if the
trial court applied the correct standard, we then review the
record to determine whether the trial court abused its dis-
cretion in determining competency. Sarich, 352 Or at 615;
see also State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000)
(explaining that the first step is to “review evidentiary rul-
ings without deference to determine whether proper princi-
ples of law were applied correctly”).
On appeal, youth challenges the juvenile court’s
determination of competency under OEC 601 and OEC 603.2
Although youth argues on appeal that there was only one
legally correct outcome on this record, we decline to resolve
that issue because, as discussed below, the juvenile court
applied the incorrect legal standard to determine witness
competency.
OEC 601 provides: “Except as provided in [OEC 601
to 606], any person who, having organs of sense can per-
ceive, and perceiving can make known the perception to
others, may be a witness.” The Oregon Supreme Court has
expressed that “[d]iscretion is regularly exercised in favor
of allowing the testimony[,]” explaining that “[a] witness
2
OEC 603 requires that “[b]efore testifying, every witness shall be required
to declare that the witness will testify truthfully, by oath or affirmation admin-
istered in a form calculated to awaken the conscience of the witness and impress
the mind of the witness with the duty to do so.” Because we conclude that the
court erred under OEC 601, we need not address youth’s OEC 603 challenge.
Cite as 326 Or App 640 (2023) 645
wholly without capacity is difficult to imagine. The ques-
tion is one particularly suited to the jury [or factfinder] as
one of weight and credibility, subject to judicial authority
to review the sufficiency of the evidence.” State v. Milbradt,
305 Or 621, 624, 756 P2d 620 (1988) (internal citations omit-
ted); see also State v. Sullivan, 217 Or App 208, 212, 174 P3d
1095 (2007), rev den, 344 Or 539 (2008) (“Whether a per-
son who has the ability to perceive and recount an event
will do so accurately and truthfully ‘is to be tested by cross-
examination and not by a motion to disqualify the witness
as incompetent.’ ” (Quoting State v. Lantz, 44 Or App 695,
700, 607 P2d 197, rev den, 289 Or 275 (1980).)).
Importantly, however, the Supreme Court has
stressed that, “[a]lthough OEC 601 states a very liberal
standard of competency, that standard requires that the
witness’s ability to perceive and make perceptions known
to others encompasses the sort of perceptions that will be
relevant to the issues to be decided at trial.” Sarich, 352 Or
at 616. Thus, when determining witness competency, “[t]he
proper inquiry is not whether the person is able to perceive
and communicate in any capacity, but rather ‘[w]hether
[the] person has sufficient ability to perceive, recollect and
communicate so it is worthwhile for the person to testify.’ ”
Id. (citing Legislative Commentary to OEC 601, reprinted
in Laird C. Kirkpatrick, Oregon Evidence § 601.02, Art VI,
430 (5th ed 2007) (emphasis omitted)); see also Sullivan, 217
Or App at 212 (“A competent witness need only be able to
recognize the necessity of telling the truth, to have personal
knowledge and recollection of the relevant events, and be
able to communicate that knowledge to the jury.” (Quoting
Lantz, 44 Or App at 700.)). It is the perceptions “that will
be relevant to the issues to be decided at trial” that play an
important role in this case. Sarich, 352 Or at 616.
In reviewing the record, we conclude that the juve-
nile court did not apply the correct legal standard. Although
the court accurately focused on T’s general ability to per-
ceive, recollect, and communicate, it did not make a deter-
mination about T’s ability to perceive, recollect, and commu-
nicate about issues to be decided at trial. In making its OEC
601 determination, the juvenile court expressly adopted the
prosecutor’s articulation of the standard, which focused
646 State v. J. H.
solely on whether T was able to perceive and communicate
in any capacity. The prosecutor contended that “[i]t is a mat-
ter of * * * whether [T] has the ability to perceive things and
whether he has the ability to articulate that.” The state fur-
ther asserted,
“[B]ased on the case law, it’s not * * * whether all the
answers they’re going to give are correct, but whether they
can perceive things and articulate those. * * * It’s— * * *
again, he’s a very young age. * * * I mean, obviously, there’s
no question regarding how distractible he is. He’s a four-
and-a-half-year-old little boy. He—again, the case law is—
it’s a very liberal standard and it’s a very low standard for
competency.”
Agreeing with the state’s framing of the standard, the juve-
nile court explained, “I think [the prosecutor] is correct that
as long as this witness can communicate factual matters
as they understand them and understand to tell the truth,
* * * I believe, is sufficient.” Missing from the juvenile court’s
analysis, however, is whether T had the ability to perceive,
recollect, and communicate about the events in question
from over a year earlier. That is, we understand the trial
court to have concluded that T could perceive and commu-
nicate generally; however, the court did not delve further
into whether T’s perceptions “encompasses the sort of per-
ceptions that will be relevant to the issues to be decided at
trial” as required by Sarich. 352 Or at 616.
We further conclude that the trial court’s eviden-
tiary error is not harmless. See State v. H. K. D. S., 305
Or App 86, 102, 469 P3d 770 (2020) (applying harmless
error in a juvenile delinquency proceeding); see generally
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (explaining
that, under Article VII (Amended), section 3, of the Oregon
Constitution, an appellate court must affirm a judgment if
there is “little likelihood that the particular error affected
the verdict”); ORS 19.415(2) (“No judgment shall be reversed
or modified except for error substantially affecting the
rights of a party.”). T’s testimony was central to the state’s
case-in-chief, and the juvenile court relied on T’s statements
when it announced its jurisdictional findings. Accordingly,
having concluded that the juvenile court erred and that the
Cite as 326 Or App 640 (2023) 647
evidentiary error is not harmless, we reverse and remand
for further proceedings.
We recognize that the standard for an OEC 601
determination “permit[s] [a] trial court some latitude to tai-
lor the competency inquiry to the anticipated circumstances
of the trial.” Sarich, 352 Or at 616. We further recognize
that questions of weight and credibility should be left to the
jury or factfinder. Milbradt, 305 Or at 624. Those general
principals, however, do not dilute the OEC 601 standard and
the specific determinations that the court needs to make
to conclude that a witness is competent to testify.3 As the
court explained in Sarich, the proponent of a witness has
the burden to prove by a preponderance of the evidence that
the witness has “sufficient ability to perceive, recollect and
communicate so it is worthwhile for the person to testify.”
352 Or at 616. In the present case, the relevant events had
occurred over a year prior. Under OEC 601, the state had
the burden to prove that T had sufficient ability to perceive,
recollect, and communicate about those events so that it was
worthwhile for T to testify. Because we conclude that the
court did not apply the correct legal standard, we reverse
and remand for a new jurisdictional hearing.4
Reversed and remanded.
3
Our decision today focuses solely on witness competency under OEC 601.
There are, of course, other rules related to witness competency, including OEC
602 (requiring personal knowledge), OEC 603 (requiring an oath or affirmation
that the witness will testify truthfully), OEC 604 (outlining requirements for
interpreters), OEC 605 (providing that a judge presiding at the trial may not
testify as a witness in that trial), and OEC 606 (providing that a juror may not
testify under specified circumstances) that are not implicated in this case.
4
To the extent that youth also contends that we should remand for “fur-
ther proceedings without T’s testimony,” we decline that requested remedy. On
remand, the state will first have to decide whether it will seek a new jurisdic-
tional hearing or not. If it does seek a new jurisdictional hearing, then the state
will need to make a choice about whether it will seek to have T testify again,
proceed without T’s testimony or statements, or seek to admit T’s statements
without T’s testimony (or perhaps some combination of those options). If the state
seeks T’s testimony at a new jurisdictional hearing, then the parties will have
an opportunity to develop a record and argue—and the juvenile court will have
an opportunity to make a decision in the first instance—about whether there is
any procedural bar to T’s testimony in a second jurisdictional hearing and, if not,
whether T is competent to testify under the correct legal standard.