State v. Sundberg, 342 P.3d 1090

Background

Defendant was retried for first-degree sexual abuse and attempted unlawful sexual penetration arising from allegations by his 10-year-old niece, A. The Supreme Court had previously ordered a new trial because an anonymous jury was used in the first trial.
On remand, the state sought to introduce testimony from the examining physician about how A described her genital anatomy during a medical exam (specifically that girls of A’s age typically call the area between the labia and hymen “inside”).
The trial court excluded portions of the doctor’s prior trial testimony as irrelevant and as impermissible vouching for A’s credibility but allowed the state to use it in rebuttal if defendant opened the door.
The state appealed the pretrial exclusion under ORS 138.060(1)(c), arguing the proffered testimony was admissible expert evidence to explain an apparent inconsistency in A’s statements and therefore relevant to credibility.
The trial record showed the doctor checked the vulvar area but did not touch the hymen or vagina; A at different points described the location as both where the doctor was "just checking" and as "inside."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
State's jurisdiction to appeal pretrial exclusion	Koennecke permits state appeals of pretrial orders excluding evidence under ORS 138.060(1)(c).	Koennecke was wrongly decided post‑PGE and thus no jurisdiction.	Court follows Koennecke and exercises jurisdiction.
Relevance to elements of charged crimes	Not argued; state concedes penetration is not required and does not rely on proving an element.	Evidence about anatomy knowledge is irrelevant to proving the crimes.	Evidence not offered to prove elements; relevance assessed as to credibility, not elements.
Relevance to complainant's credibility	Expert testimony explains why A might describe an outside area as “inside,” countering inference of inconsistency/fabrication.	State failed to show how anatomical-description evidence bears on credibility.	Testimony is relevant under OEC 401 to explain apparent inconsistency and aid jury assessment.
Impermissible vouching / expert credibility opinion	Testimony is explanatory about developmentally typical descriptions, not a statement that A is truthful.	Such testimony improperly vouches for or comments on A’s credibility.	Not vouching: permitted as nonconclusive, explanatory expert evidence that assists (not supplants) jury credibility assessment.

Key Cases Cited

State v. Sundberg, 349 Or. 608, 247 P.3d 1213 (Oregon Supreme Court) (ordered new trial for use of anonymous jury)
State v. Koennecke, 274 Or. 169, 545 P.2d 127 (Oregon Supreme Court) (state may appeal pretrial orders excluding evidence under ORS 138.060)
PGE v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143 (Oregon Supreme Court) (statutory interpretation framework referenced)
State v. White, 252 Or. App. 718, 288 P.3d 985 (Or. Ct. App.) (expert testimony about delayed reporting admissible to counter fabrication inference)
State v. Middleton, 294 Or. 427, 657 P.2d 1215 (Oregon Supreme Court) (expert may not opine on witness truthfulness)
State v. Milbradt, 305 Or. 621, 756 P.2d 620 (Oregon Supreme Court) (forbids statements tantamount to credibility opinion)
State v. Remme, 173 Or. App. 546, 23 P.3d 374 (Or. Ct. App.) (expert testimony may supply nonconclusive information useful for credibility assessments)
State v. Lupoli, 348 Or. 346, 234 P.3d 117 (Oregon Supreme Court) (age‑appropriate statement testimony ordinarily admissible)
State v. Southard, 347 Or. 127, 218 P.3d 104 (Oregon Supreme Court) (diagnostic opinion of sexual abuse without physical support inadmissible)
State v. Romero, 191 Or. App. 164, 81 P.3d 714 (Or. Ct. App.) (expert testimony explaining false confessions admissible without vouching)

Outcome: The court reversed the pretrial exclusion and remanded, holding the doctor’s testimony about how girls of A’s age describe the vestibular area was relevant and not impermissible vouching.