288 P.3d 985
Or. Ct. App.2012Background
- Defendant charged with multiple counts of first-degree unlawful sexual penetration, first-degree rape, first-degree sexual abuse, criminal mistreatment, unlawful use of a weapon, and strangulation.
- Pretrial order excluded expert testimony on delayed reporting as not relevant to the case.
- State sought to introduce expert testimony through Storey to explain delayed reporting and counter the inference of fabrication.
- Trial court limited the evidence to rebuttal if the defense raised delayed reporting, but not in the state's case-in-chief.
- Court of appeals held the testimony is independently relevant to explain delay and counter fabrication in the state's case-in-chief, citing Zybach and Galloway.
- The matter was reversed and remanded for admission of the expert testimony in the state’s case-in-chief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is delayed-reporting expert testimony admissible in the state's case-in-chief? | State argues it explains delay and counters fabrication inference. | Perry limits such testimony to rebuttal if fabrication is argued. | Yes; independently relevant in the state's case-in-chief. |
| Does Perry bar admissibility when defendant does not allege fabrication from delay? | State relies on Zybach/Galloway and Perry to permit in-chief use. | Perry precludes this unless fabrication argument is raised. | Perry does not preclude in-chief use; admissible. |
| Is the evidence logically relevant under OEC 401 to explain delay and not merely rehabilitative? | Evidence helps explain delay and counter fabrication inference. | Not discussed; relies on Perry’s framework. | Evidence is relevant under OEC 401 and admissible in chief. |
Key Cases Cited
- State v. Perry, 347 Or 110 (2009) (delayed reporting admissible to counter fabrication argument)
- State v. Zybach, 308 Or 96 (1989) (delay in reporting admissible to explain why reporting occurred)
- State v. Galloway, 161 Or App 536 (1999) (statements explaining delay admissible in chief to address delayed reporting)
- State v. Panduro, 224 Or App 180 (2008) (evidence of interactions relevant to delayed reporting admissible in chief)
- State v. Evans, 236 Or App 467 (2010) (OEC 401 relevance of specialized evidence)
- State v. O'Key, 321 Or 285 (1995) (OEC 702 and admissibility framework for scientific evidence)