Dеfendant is charged with rape in the second degree, ORS 163.365, and three counts of sexual abuse in the first degree, ORS 163.427. The state appeals from a pretrial order excluding evidence of statements that defendant’s wife made to the victim regarding what wоuld happen if the victim reported the incident to the authorities. We reverse and remand.
The victim, defendant’s niece, lived with defendant and his wife from October 1995 until January 1997. The sexual contact allegedly took place between November 1, 1995, and December 24,1996, when the victim was 11 and 12 years old. The victim disclosed the alleged sexual contact to her aunt, defendant’s wife, in January 1997. Later that month, police interviewed the victim, at which point she reported only that defendant had touched hеr vagina with his hand and had “touched her vaginal area with his penis.” In March 1997, the victim was evaluated through the Child Abuse and Response Evaluation Services (CARES) program. In the course of that evaluation she expanded her disclosure, revealing for the first time thаt defendant once had sexual intercourse with her, and also explaining that there were multiple occasions, rather than just one, on which defendant had touched her vaginal area with his hand.
Defendant filed a pretrial motion seeking to exсlude any evidence of what defendant’s wife may have told the victim concerning the consequences of the victim’s report of the abuse. Defendant’s motion urged in general terms that the evidence was irrelevant and unduly prejudicial. At the hearing on the motion, the state advised the court that it intended to introduce evidence that when the victim told defendant’s wife that the victim had been molested by defendant, defendant’s wife responded by warning the victim that reporting the abuse would ruin defendant’s fife, would сause the family to lose the farm and to have to five in a car, would result in the victim and her sister being placed in foster homes, would require the victim to take a polygraph, and would mean that the victim might be sent to “Juvie.” Defendant argued that those statements collеctively were not relevant. Defendant further asserted that the specific statement regarding a possible polygraph examination would be highly prejudicial. The state, in response, argued that the evidence was relevant to demonstrate why the victim feared reporting the incident and why she did not come forward immediately with all of the details and a full account of the abuse. To preclude any undue prejudice, the state also agreed to omit any reference to any statements about a possible polygraph examination.
The trial court granted defendant’s motion to exclude the evidence, ruling that the statements to the victim were not relevant as part of the state’s case-in-chief.
1
The court further
Under OEC 401, “[pjroffered evidence is relevant * * * if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” The trial court determines, pursuant to OEC 104 (рreliminary questions of admissibility), whether the evidence satisfies that minimum threshold.
State v. Clowes,
“Relevance determinations under OEC 401 * * * can yield only one correct answer; evidence either is relevant or it is not. Under OEC 401, if evidence logically is relevant, a trial court has no discretion to label it as irrelevant.”
State v. Titus,
Here, the trial court viewed the evidence as rehabilitative in nature and thus relevant only if the defense first sought to impeach the victim on the basis of thе inconsistencies in her initial and later reports. In so holding, the trial court approached the problem in the wrong way.
State v. Zybach,
As
Zybach
recognizes, a party сarrying the burden of proof is entitled to address, as part of its affirmative case, inherent weaknesses in its proof that might make its case less believable. That is not a matter of “rehabilitating” a witness; it is a matter of explaining the circumstances fully so thаt the trier of fact is not left with uncertainties that might
otherwise detract from the strength of the party’s case.
3
Zybach
makes clear that evidence
“To require the state to mask or withhold this information until brought out by the defense on cross-examination would have subjected the state to charges and arguments that the state was withholding valuable informаtion from the jury that was only brought out by the defense. It would be unrealistic to require the state to restrict its case-in-chief to the testimony of the child as to what occurred * * * and to make it wait until after the predictable cross-examination about the dеlay before being allowed to explain the reasons for the delayed reporting.”
Id.
at 100-01.
See also Sullivan,
Defendant, on appeal, agrees that the state’s offered evidence was relevant to explain any minimization or inconsistency in the victim’s reporting. However, defendant urges that the state’s interest in presenting the evidence was protected adequately by the court’s ruling that the state could use the evidence in rebuttal. In particulаr, defendant argues:
“[I]n some circumstances, the state should be allowed to ‘take the sting’ out of bad facts by presenting them in its case in chief. However, the necessity of it doing so is one of degree, depending on the potential harm the evidence presents, and the likelihood that the issue is going to arise.”
Defendant contends that the state did not produce enough evidence of the variations between the victim’s reports sufficient to make it necessary for the state to present thе evidence in its case-in-chief.
There are two problems with defendant’s argument. First, it ignores the basis of the trial court’s ruling. There was no issue below about the degree of variation between the witness’s statements. The reports that the victim gave initially to police and later as part of the CARES evaluation were before the trial court and are a matter of record. The colloquy makes clear that the parties and the trial court alike accepted that there was a significаnt variation in the reports. The only issue below was whether the evidence was relevant and admissible as part of the state’s case-in-chief to explain any inconsistencies or minimization in the reporting. Under Zybach, the court’s ruling on that point was error.
Beyond that, the problem with defendant’s аrgument is that it confuses the relevance of the evidence as part of the state’s affirmative case with its relevance for rehabilitative purposes. As
Zybach
holds, evidence of this nature is not relevant only as rehabilitation; it is independently relevant to explain inherent weaknesses in the state’s affirmative case, which the state is entitled to do to meet its obligation to prove its case beyond a reasonable doubt. Because the evidence is relevant as part of the stаte’s affirmative proof, the state’s ability to present that proof is not, as defendant argues, a matter of degree. The proper inquiry is: “Does the item of evidence even
slightly
increase or decrease the probability of the existenсe of any material fact in issue? If the item of evidence
affects the balance of probabilities to
any degree,
it is logically relevant.”
State v. Gailey,
Reversed and remanded.
Notes
As we have just described, defendant argued at the hearing only that references to polygraph testing should not be admitted on the ground of undue prеjudice. In response, the prosecutor agreed to “sanitize” the statements of any such references. The trial court’s ruling on the admissibility of the remainder of the statements appears to have been based on relevance only, even though, at one point, the trial court made a passing reference to the prejudicial effect of the statements. In all events, the trial court did not make the findings necessary to support a conclusion that the evidence would be unduly prejudicial and the record discloses nothing before the trial court from which it could have made those findings.
See State v. Lee,
The state also argues that the evidence was admissible to prove that defendant’s wife was biased. Defendant, in response, contends that the state is raising that argument for the first time on appeal. We agree with dеfendant. Below, the state argued only that ¿/’defendant’s wife denied making the statements, then the state would produce other witnesses to impeach her on the basis of bias. That differs from arguing that the substance of the wife’s testimony — ¿.e., an acknowledgment that she made the statements — was itself relevant as bias.
The state points out that evidentiary weaknesses of that kind are not always brought out by the opposing party either during cross-examination or during the opposing party’s case. Rather, because it is sometimes more effective to plant seeds of doubt than to let them germinate, opposing counsel may reserve comment on those weaknesses until closing argument, at which point no response or explanation is possible. Thаt potential scenario underscores that the issue is not one of rehabilitation in response to impeachment, but instead has to do with the quality and thoroughness of the direct proof. Moreover, it is worth observing that even when an opposing party does not seize on such weaknesses, jurors may still identify them and, in the course of their deliberations, may conclude that without an explanation of circumstances that raise questions in the jurors’ minds, the party’s burden of proof is not satisfied. Leaving jurors to wonder about such matters is, of course, particularly risky where, as in criminal cases, the burden of proof is beyond a reasonable doubt.