283 P.3d 391
Or. Ct. App.2012Background
- Defendant appeals and challenges two counts of first‑degree rape, arguing trial error in admitting certain expert testimony about delayed reporting and grooming.
- Complainant, the defendant’s daughter, reported abuse years after it occurred; CARES nurse examined but did not find physical evidence of abuse.
- During trial, prosecutor asked why the complainant did or did not disclose; trial court overruled objection after an offer of proof.
- Lustig-Butts testified that delayed disclosure is common due to fear and grooming, linking complainant’s return to fear of disbelief and family impact.
- Court reversed and remanded for new trial, concluding the testimony improperly vouched for credibility; sentencing issues were not reached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of grooming testimony | Lustig-Butts testimony supported by grooming theory is admissible. | Testimony impermissibly vouches for credibility and exceeds permissible expert testimony. | Trial court erred admitting grooming testimony; reversible error |
| Plain error review for unpreserved portions | Exceptions apply to unpreserved errors under plain error review. | No plain error given lack of preserved objections. | Court did not reach plain-error analysis for all issues; remanded for new trial |
| Harmful effect of error | Grooming testimony bolstered credibility and prejudiced jury. | Any error was harmless or within permissible limits. | Error not harmless; reversal required |
Key Cases Cited
- State v. Southard, 347 Or 127 (Oregon 2009) (diagnosis of sexual abuse without physical evidence generally not admissible)
- State v. Lupoli, 348 Or 346 (Oregon 2010) (expert testimony based on victim believability risks impermissible vouching)
- State v. Perry, 347 Or 110 (Oregon 2009) (limited admissibility of generalized delay‑in‑report testimony; cautions about expert embellishment)
- State v. Hansen, 304 Or 169 (Oregon 1987) (rejection of expert testimony detailing grooming techniques in some contexts)
- State v. Stevens, 328 Or 116 (Oregon 1998) (limits on testimony explaining victimization processes; need to balance relevance and prejudice)
- State v. Middleton, 294 Or 427 (Oregon 1983) (expert testimony on credibility and truthfulness restricted)
- State v. Milbradt, 305 Or 621 (Oregon 1988) (credibility determinations belong to trier of fact; improper to opine otherwise)
- State v. Keller, 315 Or 273 (Oregon 1993) (prohibits witness testimony about witness credibility)