Defendant appeals his convictions and sentences for two counts of rape in the first degree, ORS 163.375, and one count each of sodomy in the first degree and menacing in the first degree, ORS 163.405; ORS 163.190. He assigns error to, among other things, the trial court’s exclusion of testimony as to a victim’s prior false accusation of sexual assault and to his sentence. We affirm.
We state briefly only those facts relevant to the issues on appeal. Defendant’s 12-year-old stepdaughter accused him of multiple sexual assaults during 1993 while her mother was at work. At trial, defendant sought to impeach the victim with evidence that she had previously falsely accused a classmate of forcibly sexually abusing her. The state objected. Defendant replied that, under
State v. LeClair,
Defendant argued that, because he had demonstrated that the prior accusation was false, he was entitled to impeach the victim’s testimony with evidence of that prior accusation. The trial court found that the evidence as to the prior accusation was in conflict and confusing and that defendant failed to demonstrate that the prior accusation more likely than not was false. The trial court also held that further testimony on the matter would unduly delay the trial and likely would confuse the jury. Accordingly, the court sustained the state’s objection to the admission of the impeachment testimony. Defendant ultimately was convicted on the rape and sodomy charges. At sentencing, the trial court imposed sentence under Category 10 of the Crime Seriousness Scale. Defendant did not complain at that time that the *89 imposition of sentence under that category was error in the absence of allegations of subclassification factors that justify sentencing under a higher category.
On appeal, defendant first argues that the trial court erred in failing to allow testimony regarding the victim’s prior false accusation. According to defendant, we should review the ruling as a matter of law and conclude that he had established that the victim’s prior accusation was false and therefore proper impeachment evidence under LeClair. In the alternative, defendant argues that at the least he established some evidence of the falsity of the prior accusation and, again under LeClair, he is entitled to pursue the matter further because the probative value of the evidence outweighed any risk of prejudice, confusion or delay that might result.
The state first contends that we do not review the trial court’s decision as a matter of law. According to the state, the trial court’s evaluation of the evidence on whether the prior accusation was false is binding on appeal if there is evidence to support the court’s findings. As for the court’s evaluation of the probative value and potential prejudice of allowing further inquiry into the matter, the state contends that we review that decision for an abuse of discretion. Applying those standards of review, the state contends that there is, in fact, evidence to support the trial court’s finding that defendant failed to demonstrate the falsity of the prior accusation and that the trial court did not abuse its discretion in declining to allow further examination on the question, in the light of the delays and confusion that would have resulted.
In
LeClair,
the defendant sought reversal of his convictions for rape and sexual abuse, arguing that the court erred in limiting his cross-examination of the victim and in refusing to admit impeachment evidence of allegedly prior false reports of sexual abuse made by the victim. We held that false statements were not past sexual conduct and, therefore, were not excluded under the Rape Shield Law’s prohibition of evidence of specific instances of a victim’s past sexual behavior.
See
OEC 412. We noted that the prohibition of OEC 608(2) as to inquiry about specific instances of conduct on cross-examination does include false statements.
LeClair,
*90 “regardless of the prohibitions of OEC 608, the Confrontation Clause of Article I, section 11, requires that the court permit a defendant to cross-examine the complaining witness in front of the jury concerning other accusations she has made if 1) she has recanted them; 2) the defendant demonstrates to the court that those accusations were false; or 3) there is some evidence that the victim has made prior accusations that were false, unless the probative value of the evidence which the defendant seeks to elicit on the cross-examination (including the probability that false accusations were in fact made) is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay.”
Id. at 130.
We have not had occasion to address the scope of our review of a trial court’s decision to admit or exclude evidence under each of the three circumstances described in
LeClair.
We do so now. Whether evidence qualifies for admission under the rules of evidence is a question of law. However, unless an evidentiary rule or the constitution requires admission, the decision as to whether or to what extent qualifying evidence should be admitted is generally reviewed for abuse of discretion.
See State v. Meyers,
*91
Defendant contends that his evidence met the standard of
LeClair’s
second category — that the accusation was “demonstrably false.” He argues that “demonstrably5 means “capable of being demonstrated” and that his evidence clearly was “capable” of demonstrating that the accusation was false. Defendant argues from a false premise, namely that
LeClair
requires proof that the prior accusation was “demonstrably5 false. What the case actually requires is that “the defendant
demonstrates
to the court that those accusations were false.”
LeClair,
Defendant contends that he offered at least some evidence of the falsity of the prior accusation and that he is entitled to pursue the matter under the third LeClair category. We agree with the state that the record reflects no abuse of discretion. The evidence was in conflict; the trial court itself found it confusing. The offer of proof already had caused a half-day delay in proceedings and promised to delay proceedings longer than that had the court allowed further testimony on the collateral issue. We conclude that the trial court did not err in excluding evidence of the victim’s prior accusation.
We turn to defendant’s claim of sentencing error. Defendant argues that the trial court erred in imposing sentences on the rape and sodomy convictions under Category 10 on the Crime Seriousness Scale. OAR 213, App 3. He contends that the sentences for those offenses could not be enhanced from Category 9 to Category 10 because the state failed to allege the offense subcategory factors in the indictment.
See State v. Ferrell,
We decline to exercise our discretion to reach the claim of error, because the trial courts now have statutory authority to correct such sentencing errors. As part of the original sentencing guidelines, the legislature enacted ORS 138.083, which gave the sentencing court the authority to correct clerical and arithmetic errors in sentencing for 60 days after an appeal was filed.
1
Under that statute, we declined to address clerical or arithmetic errors in sentences when a defendant failed to avail himself or herself of the statutory remedy.
State v. Slawson,
“The sentencing court shall retain authority irrespective of any notice of appeal after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court may correct the judgment either on the motion of one of the parties or on the court’s own motion after written notice to all the parties. If a sentencing court enters an amended judgment under this section, the court shall immediately forward a copy of the amended judgment to the appellate court. Any modification *93 of the appeal necessitated by the amended judgment shall be pursuant to an appropriate order by the appellate court.”
(Emphasis supplied.)
In
State v. Graham,
In this case, the claim of error is not one related to post-prison supervision but to imprisonment. Under ORS 138.083, however, the sentencing court retains authority to correct “any erroneous term in the judgment.” That includes an error in a term of imprisonment. See, e.g., OAR 213-05-001(1) (“the presumptive sentence shall be a term of imprisonment”); OAR 213-08-003(2) (durational departures may not exceed “more than double the maximum duration of the presumptive prison term”); OAR 213-12-020(1) (“consecutive sentences shall consist of an incarceration term and a supervision term”).
Defendant’s remaining assignments of error do not require discussion.
Affirmed.
Notes
The statute provided, in part:
“The sentencing court shall retain authority irrespective of any notice of appeal for 60 days after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors.”