283 P.3d 402
Or. Ct. App.2012Background
- Defendant was convicted of first-degree sexual abuse in a jury trial under ORS 163.427.
- Appeal challenged evidentiary rulings, defense expert testimony about child sexual abuse investigation protocols, and newly discovered evidence; also challenged a statutorily mandated minimum sentence under ORS 137.700.
- The alleged abuse occurred May 12–14, 2008, when the substitute teacher touched the complainant in a hallway near second-grade classrooms at a Woodburn elementary school.
- Disclosures of abuse were made to the third-grade teacher, the principal, and a police officer; the complainant could not identify the defendant at trial.
- The state’s case rested on the complainant’s testimony and corroboration from adults who spoke with her; there was no physical evidence.
- Defense sought to admit McGovern’s testimony about grooming and standard child-abuse investigation protocols; the trial court excluded it, and the defense preserved the issue for appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert on investigation protocols | McGovern testimony valid as expert on protocols. | Protocols are relevant and expert testimony is admissible to explain importance of adherence. | Evidence excluded; reversible error; remand. |
Key Cases Cited
- State ex rel. Juv. Dept. v. S. P., 346 Or 592 (2009) (CAMI program and multidisciplinary investigation requirements)
- State v. Southard, 347 Or 127 (2009) (expert testimony regarding child abuse in some contexts admissible)
- State v. Morgan, 251 Or App 99 (2012) (admissibility of investigative protocol evidence in DUII case)
- State v. Bumgarner, 219 Or App 617 (2008) (properly admitted evidence about interviewing techniques)
- State v. West, 145 Or App 322 (1996) (court allowed evidence of protocol-adherence observations)
- State v. Hren, 237 Or App 605 (2010) (role of excluded evidence in defense theory)