*1 5, 1999, January 31, 2001 Argued February affirmed submitted OREGON, STATE OF Respondent, v. MAXWELL,
RANDALL JAMES Appellant. A98951)
(10-97-00429; CA
143-b Jr., John Halpern, argued the cause and filed brief for appellant.
Janet A. General, Assistant KLapstein, Attorney argued respondent. cause for With her on the brief were Hardy Myers, General, Attorney and Michael D. Reynolds, Solicitor General. Edmonds,
Before Presiding Judge, Deits, Chief Judge,* Armstrong, Judge.
EDMONDS, P. J. J.,
Armstrong, dissenting.
* Deits, J., Warren, J., C. vice S. retired.
EDMONDS, P. J. sodomy appeals
Defendant from two convictions for degree, jury 163.405, He in the first ORS after trial. raises assignments assign- eight discuss those error. We that would the bench and the bar. We affirm. ments benefit charges underlying the convictions involve oral-genital four-year-old alleged child, contact awith then alleged oral-genital September K, in 1996 and contact with January three-year-old child, B, and another then between charged sexual the fall of 1994. Defendant was also with acquitted charge. in B, ofthat At the trial abuse of but he Kelly, children, B’s K’s 1997, June mother and mother M, Jennifer, testified, brother, as B’s who witnessed did Although unac- contact quainted the victims’ families were with B. acquainted other, both families were with with each family road from defendant for defendant. K’s lived down the years City. family Junction B’s several several near lived period away while B’s miles from defendant for family August 1994, B’s father worked for defendant. Washington. moved the state years trial, B, six old at the time of testified who was claimed defendant abused about two incidents where she occurred when she and other She said that incidents her. playing brother, at defendant’s residence. Her children were incidents, he went into defen- testified that as to one ofthe M, activity engaged and saw defendant dant’s residence sodomy. B He watched for about 45 seconds that amounted B did not tell her mother about what and then left. Because say anything either. After the fam- M decided not to occurred, reported ily Washington, incident to her B moved to Kelly con- mother, M her what he had seen. then told examined, criminal B and a a medical clinic have tacted investigation ensued. conviction, the state’s evidence to the other
As Jennifer, mother, K visited defendant showed seeing September purpose of 8,1996, for the residence on his given stray to defen- K found and had some kittens that there, Jennifer and defendant conversed dant. While marijuana together. Later, left defendant’s Jennifer smoked *5 briefly, leaving K residence at defendant’s residence. When playsuit returned, she she observed that K’s was buttoned incorrectly. She testified that defendant volunteered that he helped go night, K to the That while bathroom. Jennifer bathing reported engaged her, was K that defendant had in sodomy. activity amounting to Jennifer’s husband was out of mother, K town. She contacted her to reiterated her whom report. was uncertain action She Jennifer about what to take. reaction; feared her husband’s she was about hav- concerned ing marijuana to her of fact disclose use and the that she had prior negotiating convictions for a bad check and harass- days police later, advice, ment. she contacted the but Two any give later, did not them details. A week Jennifer filed a complaint police. result, formal with the K As a was inter- County Advocacy viewed at the Lane Child Center. A video- tape of that interview was admitted into evidence. acknowledged
Defendant also testified trial. He any contact with the families but denied sexual contact with family only briefly the children. He said he knew B’s parents pres- that the children visited when their were ent. He said that Jennifer and K had visited his residence as they gone, during described but that the time that Jennifer was working shop
he was in K, his and was not with who was in the house. He also said that he and Jennifer had many joints marijuana during smoked as as four the K the specifically helping course of her visit. He denied bathroom. assignment argues
In his error, second defendant erroneously that the trial court ness who was excluded a evidence from wit testify prepared to that Jennifer had been marijuana observed smoke on 50 or while more occasions at defendant’s residence. Defendant asserted to the trial ability court evidence was relevant to Jennifer’s perceive accurately September 8. He offered the evidence provides: under OEC which * * *
“(1) of a person Evidence the habit is relevant prove person organization that the conduct of the or conformity with the habit routine practice. or “(2) section, person’s As used in this ‘habit’ means a regular practice meeting particular kind of situation specific, type with a distinctive conduct.” admissible, The trial court ruled that evidence was reasoning prior that the use of collateral bad acts cannot be impeach testimony. used to witness’s argues appeal, that the evidence was
On
defendant
large
that Jennifer “had smoked
admissible
amounts of
demonstrate
reasonably
marijuana
therefore,
and that
could
September
[on
8].” In
be concluded that she was intoxicated
testimony,
joint
admitted that she had smoked a
Jennifer
*6
that
had
on that occasion but denied
she
defendant
any
that
than
or that she was “stoned”
smoked
day.
more
that
testimony conflicted with defendant’s
That
marijuana
quantity
at defendant’s
about the
of
consumed
any potential probative
prof-
Thus,
value of the
residence.
demonstrating that
fered
to
Jennifer
evidence is limited
joint
more than one
with defendant.
smoked
406 must be
Admissible “habit” evidence under OEC
Charmley
specific
at trial. In
v.
that is
to an issue
evidence
(1986),
plaintiff, pedes
324,
Lewis, 302 Or
In his third
granting
motion to
state’s
error to the trial court’s
prior false accusa
that Jennifer had made
exclude evidence
sought
to offer evidence
tions
abuse K. Defendant
of sexual
molesting K
she
when
had accused K’sfather of
that Jennifer
anwas
infant.
denied
made that
having
Jennifer
accusation.
defendant,
According
the evidence was admissible because
Jennifer
in the
report
testified
state’s case about the
of sexual
Kby
misconduct made
to her about defendant
OEC
under
803(18a)(b). Defendant
relies on our decision in State v.
LeClair,
rev den 303 Or
121,
App
(1986),
83 Or
“regardless 608, prohibitions of the of OEC Confronta- I, tion Clause of Article section requires that the court permit a defendant to cross-examine the complaining wit- ness in front jury concerning of the other accusations she 1) 2) has them; made if she has recanted the defendant false; demonstrates the court that those accusations were 3)or there is some evidence that the prior victim has made false, accusations that probative were unless the value of the evidence which the defendant seeks to elicit on the cross-examination (including probability false made) accusations were fact substantially outweighed by risk prejudice, confusion, embarrassment or *7 delay.” Id. at 130. 1 provides: OEC 608 “(1) credibility may by a supported The of witness be attacked or evidence reputation, but; in the form of or “(a) may only The evidence refer to character for truthfulness or untruth- fulness; and “(b) only of Evidence truthful character is admissible after the character by opinion the of witnesses for truthfulness has been attacked or evidence otherwise. or “(2) Specific purpose support- attacking of instances conduct for the of or * ** ing Further, credibility may proved by the of the witness not be evidence. extrinsic not, specific may probative such instances conduct even if truth- untruthfulness, inquired fulness or be into on of the cross-examination witness.” 148 analysis helpful only to if the
LeClair’s is defendant alleged category prior third in is to false our extended by ruling made a Our in that case accusations nonvictim.2 genesis Oregon 11, I, had its Article of the Consti- section “[i]n part, provides, all criminal tution. Section relevant ** * right prosecutions, the to meet accused shall have the Here, face K the witnesses to face.” and defendant were present during alleged per- the abuse. Jennifer’s up leading the K to the circumstances to time when tained trial, defen- was left alone with defendant and afterwards. At opportunity to K dant was afforded the cross-examine both testimony. proffered as to their The evidence Jennifer by defendant for constitutes additional evidence first offered impeachment purposes. admissibility impeachment The Jennifer had made false claims of sexual abuse evidence that 608(2) person against is OEC of K another at odds with specific instance of conduct offered because is about credibility. question I, The then Article attack her is whether impeachment requires the admission of the evi- section dence of Jennifer under the circumstances of despite case, this 608(2). provisions of OEC the requirements LeClair, I, Article As 11, said in the we simply defendant had the are not met because section specific opportunity about the to cross-examine the victim charged. right of con which defendant was incident with right engage the in effective cross- frontation includes examination to by impeach are called witnesses who right However, Id. at 128. a defendant’s confrontation state. impose reason absolute, is and courts have discretion limits if confuse cross-examination the evidence will able delay only margin unnecessarily jury, will the trial or ally App Here, defendant’s LeClair, 83 Or at 129. relevant. requirements proffered does not meet the admissibility its LeClair, even if we to extend under were holding to witnesses. nonvictim reports LeClair, had made there was evidence that victim’s mother past and the Both mother sexual abuse the victim. authorities about alleged reports time. We ruled that abuse at later child denied the by victim on that record. did false claims made evidence not establish
In defendant’s offer proof, witness Donna if Wickwire was asked Jennifer told she had moved why neighborhood. to the Wickwire answered: Dean[3] story very “The father, by entire well circulated his Sr., especially Dick in presence of Jennifer. But times, numerous present, and without Jennifer neighborhood reason she moved to the get is that she was ting divorced from her husband and her had husband sex ually infant, child. young baby [K] molested as a There were go court, said, times she into she face those charges explain charges what those were. She had to [K] take her.
“Q. And you Jennifer told this? many “A. Yes. She was in the room story times. very well known.
“Q. The were stories told front [Jennifer]?
“A. Yes.
“Q. She never corrected them.
“A No sir. That’s all what gone us believed. It had than more one occasion!.]”
Defendant also called Jennifer as witness his offer of proof.
“Q. Skiller, Mrs. you have claimed that Jason Berk—who is Jason Berk? [K]’s
“A. real father. He died.
“Q. by He died. He was hit car?
“A. Yes.
“Q. you Have ever claimed that he has [K]? molested No, “A. never.
“Q. Never? her,
“A. Never. He never hurt just but he wasn’t the greatest you know, nurturing wasn’t a father. He never — any touched her in way, just very but he wasn’t nurturing. husband, Skiller
3Dean is Jennifer’s and Dick Sr. is her father-in-law. not, “Q. your knowledge, So he molest [K]? did “A. No. *9 be,
“Q. you question people The would have told other he did? No,
“A. never.” trumps LeClair, I,
As we said in Article section only has the OEC 608 when the defendant demonstrated that prior has that the witness recanted accusations or witness demonstrably prior accusations that are false. addi- made tion, substantially probative must value of the evidence outweigh prejudice, confusion, the risk of embarrassment or delay. require- Here, falls ofthose defendant’s evidence short The not made ments. evidence does show Jennifer accu- against former and then sations of sexual abuse her husband reports Instead, false. there is a fac- admitted that the were dispute ever made such statements. The tual fact that makes whether she testified
she that she did not make the accusations of the issue a collateral matter on which the admission unnecessarily delayed the have trial and con- evidence would jury. Also, the evidence that fused Jennifer said that her former husband molested ginal issues before
K has mar-
testimony regard-
impeachment
of
relevance to
her
theory
ing
Defendant’s
of the case is that
defendant’s case.
report
taught
repeat
The
K
it.
Jennifer fabricated the
and
proceeding
purportedly
in a
fact that she
claimed
divorce
baby
“young infant,
K a
husband had molested
as
former
theory.
support
defendant’s
Conse-
child” does little
quently,
the trial court did not abuse its dis-
we conclude that
excluding
proof.
of
defendant’s offer
cretion
assignment
argues
error,
of
defendant
In his sixth
testimony erred when it excluded the
that the trial court
King regarding Jennifer’s charac
Southerton and
witnesses
App 23, 27, 840
116 Or
Caffee,
ter for truthfulness. In State v.
(1993),
(1992),
we held that our
P2d
rev
length, pointed and defense counsel reputa- permits personal out that the rule both testimony. tion The trial court concluded that the foundation testify community was insufficient for reputation witness to *10 prosecu- for truthfulness. It then returned to the asking point opinion testimony, if tor’s about defense counsel authority proposition a he had case for the that witness is permitted opinion single to render an on that circum- “based produce Defense that he could no stance.” counsel conceded authority. replied, opinion. He “She an And it is such formed something happened. upon think that’s a based that So we offering opinion jury.” for to the sufficient foundation responded, objection upon “[t]he court is sustained lack of foundation.” record,
Based on that defendant and the dissent con- global approach tend that the trial court erred. In a to the issue, the dissent it believes that the would reverse because by distinguish failing the foun- and the foun- trial court erred between required personal opinion for dation dation testimony making required reputation in its rul- for differently. ing. The focus of the understand the record We single circumstance in this trial court was on whether the give personal either an admissible case could suffice to opinion rise to community reputation concern- anor light, any ing distinc- character for untruthfulness.4 that proffered by required the dissent tion foundations as between counsel, part: defense The court told determining ruling is academic to whether the court’s was an abuse of discretion. The nature of character evidence is that “is evi * * * particular person’s
dence of a
human trait.
A
character
respect
person’s propensity
to truthfulness means that
varying
to tell the truth in all the
situations of life.”
v.
State
(1991).
Marshall,
367, 372,
Thus,
312 Or
“A testifying character whether as to reputation or opinion, testify will not be allowed to a until foundation has showing been laid the witness has either sufficient acquaintance person with the of the in the rele- community or personal vant sufficient contacts with the provide individual for an regarding basis person’s character. The contact must have been recent enough testimony.” so there will be a current basis for the (3d 1996). Kirkpatrick, Oregon Evidence, Laird C. 166-67 ed agree required We with the trial court that it was not testimony. admit Southern’s To hold otherwise would mean that the distinction between character traits and individual Accordingly, reject misdeeds would be obliterated. we defen- regard. dant’s claim of error King Witness worked for defendant. He testified that he saw Jennifer at defendant’s residence more than 40 to 50 times. He was asked:
“Q. your Jennifer, you Based on contacts with did form personal opinion credibility, as to her her character *11 truthfulness?
“A. Yes.
“Q. your opinion What is truthfulness? [Jennifer’s] Very “A. slim. may job important thing “It be a situation in which a is the most to someone. statement, they’re representative willing
And to make a false which is not to, one, respect community opinion respect with with to the truth- all number person fulness —or the character of that for truthfulness.” truthful or untruthful? “Q. you saying she’s Are “A. Untruthful. or you have an Now, indicating “Q. you’re —do people for among other her
knowledge of truthfulness?
“A. No Sir.” King’s Apparently, contacts with ruled that the trial court per- inadequate to form a basis on which an Jennifer were disagree. We for truthfulness. of her character sonal period from 1994 to 1996 over a Their contacts occurred personal We conclude numerous contacts. involved adequate for the admission an foundation defendant laid testimony. King’s argues assignment error, defendant
In his seventh testimony by excluding witness erred in that the trial court regarding Wickwire K’scharacter for truthfulness. Wickwire daughter away defendant and has 400 feet from lived about day operates playmate care cen to ofK’s.Wickwire who was a ter at her house. She testified play, her that K came to house shopping grocery and in saw her in the store that she residence or K she went to K’s malls, and that she saw when that when her house. She testified K’s mother came to when “[m]any daughter, play there her would be K came to with K and that with that she would have conversations times” conversing her with while K was often would listen she opin testify prepared daughter. that in her Wickwire was always excluded truthful,” but the trial court ion, K “not reasoning explain testimony. the record. its her It did not demonstrated Wickwire hold that defendant We acquaintance an K to render for Wickwire sufficient truthfulness. to K’s character for as argues eighth assignment error, defendant In his excluding character the trial court erred Berry regarding King, B’s Coonradt and witnesses from mother, Kelly’s, both B’s truthfulness. character for King King testified that for defendant. father and worked family Kelly a week before was about last time he saw Washington that while at He testified in 1994. moved *12 154 workplace, Kelly
defendant’s he would encounter on a “weekly”basis. He was asked:
“Q. you Are familiar with reputation [Kelly] truthfulness?
“A. Yes.
“Q. What reputation is her for truthfulness?
“A. Poor.
“Q. you Do also personal opinion have a Kelly’s truthfulness?
“A. Yes.
“Q. your personal opinion What is of her truthfulness? “A. She doesn’t know what the word means.” relying part holding
The trial court, in on our in King Kelly Caffee,ruled that had insufficient contacts with to permitted express opinions jury. be to his before the by excluding Caffee, held that we the trial court did not err opinion testimony defense witness’s about the victim’s truth- grounds inadequacy fulness on the of remoteness and of con- tacts.5 The witness had known the victim from childhood but very personal had had little recent contact with the victim or people opinion with other Instead, who knew the victim. predicated was on letters that she had received from the vic- tim. recent is instructive because it illustrates the need for a Caffee adequate acquaintance person’s reputa- with the community person subject in tion or with the who is the before an about character is admissible. Thus, the rule of can be stated as follows: The admis- Caffee sibility prior prove present of evidence of character to char- depends whether, acter on court, the discretion of the trial applied McCormick describes the rule that we in this fashion: Caffee “The crucial time when the character of the witness under attack has its truth-telling obviously rep- influence on his is the time when he testifies. But utation takes time to form and is the result of earlier conduct and demeanor. Hence, reputation exactly does not reflect character the trial date. The (1) is, practical actually do, permit solution is to do what most courts reputation-witness testify impeachee’s ‘present’ reputation about the as of (2) trial, it, accept testimony the time of if he knows as to any judge as of time before trial which the in his discretion finds is not too (5th 1999) (footnotes omitted). Evidence, 173-74 ed remote!. 1”McCormick frequent the contacts on which the is based are enough enough probative have and recent value to tes- timony given Wigmore, § in court. See also 3A Evidence 928 (Chadbourn 1970). rev Kang’s Kelly King
Here,
contact with
was while
working
King testified,
at defendant’s work site in 1994. As
“I
up
already,
would
show
she would be there
or I would be
up.”
said,
there and she would show
working
He
“Whatever we were
*13
way.”
agreed
during
on,
that,
she would
inbe
He
times,
those
the focus of his attention was on his work. The
question
light King’s testimony,
whether,
the trial
by excluding
proffered
court abused its discretion
evi
correctly recognized
dence. The trial court
admissibility
the rule that the
prior
prove present
of evidence of
character to
depend
probative
impeach
character will
on the
value for
purposes
application
ment
of the
offered. The
possibility
legally
rule results
of more than one
Wigmore’swritings
correct outcome, as McCormick’sand
holding instruct. It does not matter whether this
Coffee's
sitting
court,
as the trial court, would have admitted the evi
ruling
dence. What does matter is whether the trial court’s
range
legally
produced
was within the
correct choices and
permissible legally
Rogers,
correct outcome.
Debbie Coonradt testified that she met in 1994 family property when B’s lived on her for six or seven weeks. Kelly daily She said that she interacted with on a dur- basis ing personal opinion that time. When asked about her as to Kelly’s honesty, very replied, good.” “[n]ot character for she Kelly’sreputation community, When asked what inwas “[v]ery poor.” said, Coonradt She testified that had no she Kelly contact with since that time. The trial court excluded King’s the evidence for the same reason that it excluded tes- timony Kelly. circumstances, Under the the trial court properly could conclude that Coonradt did not have recent contacts sufficient to enable her to offer an Kelly’stestimony would reflect on the truthfulness We court excluded Coonradt’s in 1997. hold that there no was abuse of discretion when the trial
opinions. Regarding Kelly’s truthfulness, character for wit- Berry ness answered, was asked whether he knew her. He “I Kelly.” following testimony have met ensued: “Q. you Did form enough [Kelly contact with and her hus- credibility[?] band] to have an about their “A. Yes.
“Q. your And what was very
“A. I good opinion credibility. didn’t have a of their “Q. specifically regard [Kelly]? That’s “A. Yes.
“Q. you knowledge reputa- How about —did have of her among community? tion others in the “A. No.”
Again, by the trial court ruled that the foundation laid defen- admissibility Berry’s opinion inadequate. dant for the *14 agree permissible its We that its decision was exercise of light holdings. prior discretion in of our contrary The dissent would reach a conclusion eighth regarding assignment defendant’s of error. As we position, it understand its believes the rule to be that “[although remoteness from the time of trial is a basis for excluding usually reputation evidence, it is for not basis (Armstrong, excluding opinion App evidence.” 172 Or at 167 (as dissenting). premise, it J., From that concludes would error) regard assignment sixth have “[i]n to defendant’s testimony excluding ofthree ofthe witnesses remoteness, the trial court relied on an incor- because its requirements opin- understanding rect of the foundation reading testimony.” Again, the record Id. at 168. our ion rulings trial court’s were differs from that of the dissent. The any predicated purported foundational differences not on opinions opinions personal contacts between based
157 community reputation. Thus, based on the dissent in its rea- soning assigned has a fictional basis for the trial court’s exer- Rather, said, cise of discretion. as we have the trial court took focusing cue Caffee, its from on whether the contacts on opinions frequent which the were based were and recent enough probative testimony given to have value to the reasoning proposi- Thus, court. the dissent’s reduces to the differently, tion that it would have exercised its discretion had it been the trial court. summary, only rulings of the trial court with disagree King’s testimony
which we
regarding
are the exclusion of
his
about Jennifer’s character for truthful
testimony
ness and the exclusion of Wickwire’s
about K’s
question
character for truthfulness. The
remains whether
rulings require
those erroneous
reversal of defendant’s con
presumed
prejudicial.”
victions. “Evidential error is not
to be
103(1).
ruling
OEC
Nonetheless, a trial court’s erroneous
requires
any,
reversal
little,
unless there is
if
likelihood that
jury’s
the error affected the
verdict.
v. Montez,
State
324 Or
(1997).
(1996),
P2d
64
cert den
Regarding credibility, Jennifer’s defendant testified any and denied that abuse had occurred. He was allowed to negotiat offer evidence that Jennifer had been convicted for ing permitted a bad check. He was also to offerthe opinion, that, of Wickwire in her Jennifer “untruthful”; the the of Darden truthful”; that Jennifer was “not
testimony Berry very that Jennifer “was not credible” King’s and that her for truthfulness was “bad.” opinion that Jennifer was “untruthful” is cumulative of the analysis The dissent undertakes a error harmless as to defendant’s convic sodomizing perception *15 excluding tion for B based on its that the court erred in testimony prepared testify Kelly, of witnesses who were toas the truthfulness of held, excluding B’s mother. As we have the court did not abuse its discretion in Coonradt, testimony King Berry regard. in that 158
testimony Berry. per- Wickwire, Darden and do not We jury’s ceive how admission could have affected the verdict its testimony when the similar of three other witnesses was unpersuasive. We conclude there is little likelihood that testimony jury’s admitting King’s could have affected the ver- regarding e.g., App See, Coleman, dict 664, K. State v. 130 Or (1995) (1994), (holding P2d rev den 320 883 266 Or 569 prejudicial that no error occurred from the denial of the sought suppress defendant’s motion to when the evidence properly suppressed duplicated evidence be other admitted evidence). testimony trial court’s exclusion Wickwire’s question. The state’s evidence about K’s character is closer against report testimony, defendant included K’s Jennifer’s grandmother her, of K’s statements to from K’s reported occurred, K whom also videotape version what County Advocacy made ofK at the Lane Child Cen police ter and the report physical of a officer about Jennifer’s incriminating police. by ofthe matter to the There was no people evidence offered the state. The two alleged sodomy present when the occurred were who were jury required Thus, determine defendant and K. beyond proved charge whether the state had its a reasonable conflicting testimony K of defendant and doubt based on the jury’s argued to turn on and it could be that the verdict had credibility permitted Wickwire, had she been to tes of K. tify, always that K was “not truthful.” would have testified con She was the one defense witness who had had extensive jury comparable testi K, tact with and the heard no other mony any degree witness with the same from disinterested credibility acquaintance. that K’s was an It would follow jury’s important consideration of the case. issue to the hand, of defendant’s the other an examination On theory testi- the notion that Wickwire’s at trial undercuts theory mony at trial his case. Defendant’s was material to story up the or had made that K had fantasized was not had been abused; instead, it was that she she had been “[ljicked my pee pee.”7 testify that defendant coached to attempt expended to show that much effort an Defendant jury: closing argument, defense counsel told *16 Jennifer not a credible and person was that the accusation him was in against by dishonest adults K’s life. prompted Wickwire and other defense witnesses were by allowed court to about Jennifer’s for truth- express opinions character Moreover, fulness. K defendant elicited from cross- during examination that she had talked to the her prosecutor, mother, her her stepfather, grandmother and about “what you say [in court]” have to and that they “helped [her] prac- tice say.”8 what to circumstances,
Under the we are not that persuaded the admission of Wickwire’s K’s opinion of character truthfulness would have advanced materially defendant’s theory of the case. In credibility the issue of K’s as litigating his, compared to defendant faced was with the of problem explaining why four-year-old child accuse neighbor would him of sexual abuse. A trier fact ordinary could infer from that, knowledge in general, year most four are not olds but, also, always truthful that it would improbable be under the facts of K this case that would falsely have accused defen- by dant herself or up story made on her his Through own. cross-examination of K Jennifer, defendant to was able very create the he inference that desired the jury to draw from testimony Wickwire’s Jennifer had K prompted —that to claim that defendant had abused her. Wickwire’s opinion evidence that K “not always truthful” is merely cumulative testimony if, that little to adds as defendant argues, K merely was Thus, the tool of her mother’s as dishonesty. defendant case, chose to try the issue of credibility became a swearing match Jennifer and between defendant. context, that is, K is not “always truthful” face, on its of little We weight. that, conclude of defen- light theory dant’s of defense and the relative weight Wickwire’s there is little testimony, likelihood that the trial good taking daughter knows dam and well she’s her down to the ‘TJenniferl Advocacy Randy videotaped, Child Center to be to make a statement allegedly licking pee-pee. Maxwell her agrees knows that’s what the whole case is about. And she ‘TJenniferl fKl, daughter, going you she informed her that that’s what was on there. And conclude, upon described, you can based the circumstances that she heard going going talked to about what her she be asked and what she was say; practiced and in fact her with her.” examination, On redirect K reasserted truthfulness her accusation. portion affected the court’s exclusion of that jury’s verdict.9
Affirmed. dissenting. J., ARMSTRONG, disagree majority’s I with the conclusions that the by excluding court acted within its discretion some of trial proffered opinion defendant’s evidence about character for truthfulness state witnesses and that the trial of certain excluding portions of that evidence was court’s error other majority’s trial harmless. The conclusion that the court had testimony by several of defendant’s the discretion exclude distinguish its witnesses is based on failure requirements for the foundational between *17 opinion Its that the exclusion of testi- evidence. conclusion mony by opinion is on its was harmless based other witnesses testimony assumption long impeachment that, as flawed as permitted, at one witness is similar from least from other properly be cumulative. I can viewed as witnesses respectfully disagree and, therefore, with both conclusions dissent. assigns trial
Defendant error to the court’s exclusion by proper for of a some of his witnesses lack majority that the trial court’s concludes foundation. reaching proper. In several of the witnesses was exclusion of ignores distinction conclusion, the well-settled reputation requirements and for between the foundational majority join opinion I the vast Because would evidence. considerably concluding trial has courts in that a court other opinion lack of witnesses for foun- discretion to exclude less reputation witnesses, I would than it does to exclude dation of law in this case erred as a matter hold that the trial court opinion excluding More- witnesses. in several of defendant’s at least one over, I hold that the trial court committed would why it that the excluded a number of reasons believes 9Thedissent advances Hypothetically, jury verdict as K. those reasons evidence could have affected circumstances, been tried as dis case could make sense under different However, posits. the erroneous exclusion of determination about whether sent our necessarily requires affecting jury’s us verdict evidence had little likelihood theory rulings in defendant’s case trial court’s the context of examine the whole, evidentiary in as a the abstract. and the record and
161 respect count of which defen- reversible error each Accordingly, dant convicted. I would reverse defendant’s sodomy convictions. governs admissibility reputation
OEC 608 and opinion respects, language evidence. most of OEC 608 substantially rule, the same as that of the federal FRE Oregon yet pre- 608.1Because courts have not addressed the required opinion cise foundation for evidence OEC under interpretations would look of FRE 608 and similar 608.1 construing Oregon’s majority, state rules rule. Unlike the I rely authority would on that to conclude that the founda- requirements opinion tional for differ evidence from the requirements reputation for admission of evidence. provides credibility “[t]he
OEC
608
of a witness
may
supported by
opin
be attacked or
evidence
the form of
* **
reputation,
may
[t]he
ion or
to character
but
evidence
refer
untruthfulness[.]”
for truthfulness or
OEC
608(l)(a).
correctly
The trial court
concluded
founda
reputation
tions must be established for both
evi
e.g.,
See,
dence
about witness’s character for truthfulness.
(1992),
App 23,
State v.
116 Or
Caffee,
27,
As several federal and state courts have acknowl- edged,
“ long or upon acquaintance ‘no conditioned prerequisite required [is recent about the witness for the information evidence]; opinion can be admission of cross-examination familiarity lack of and to expected expose to defects of or instances of mis- reveal reliance on isolated irrelevant hostility of feelings personal conduct or the existence ” the witness.’ principal toward First, inquiry specific permitted spite is in state the fact that no into acts in court, be used to reveal most defects the bases for cross-examination can still testimony, hostility subject opinion personal the toward witness who is the such as Moreover, testimony relationship opinion with witness. if the of the or a limited the opinion the is on irrelevant trial court determines that character witness’s based misconduct, testimony. the it is free to exclude instances of reputation opinion There inherent differences between and evidence also are Reputation requirements. is their different foundational evidence nec that lead to traditionally essarily hearsay, law has viewed on a form of evidence that the based evidence, unreliability reputation appro suspect. potential the it is as priate Because of acquain testifying reputation long lives, require person’s a to to show those person impeached, community to the in which she the tance with the be safeguards, great is that Without those the risk the circles within which she moves. reputation completely will unreliable because it will be based on unre evidence be may opinions presentative be of a few declarants that themselves out-of-court See, impeached. e.g., Charles Alan acts of the witness to be based irrelevant Jr., 5265, Graham, Wright § at W. Federal Practice and Procedure and Kenneth (1978) generally (stating evidence). opinion to be more reliable than that evidence tends 583 reputation contrast, opin as her when a character witness testifies ion, personal knowledge. opinion id. require based on See the rules that be knowledge requirement the addi personal § obviates the need for at 584. The Moreover, requirements reputation evidence. because tional foundational knowledge, opinion personal can be cross-examination witness testifies from readily expected could not be as in the bases her to reveal defects revealed, all, reputation witness. at cross-examination of a See or revealed (2d 608.13121, Weinstein, § ed Evidence 608-25 John B. 4 Weinstein’sFederal 1997). community, reputation speak Finally, a witness claims for because view, likely personal jury give merely opinion is witness offers whereas an persuasive reputation greater weight of the witness. more Thus, requirements. testimony justifies higher reputation foundational force of inquiry Legislature into although Oregon under OEC 608 has determined cross-examination, specific the inherent differences will not be allowed on acts reputation fact that effective cross-exami evidence and the between persuade me a witness’s best will reveal most defects in nation widely accepted the foundation to the distinction between course required to adhere evidence.
163 (11th 1982) Watson, 1374, v. F2d United States 669 1382 Cir (5th (quoting Lollar, 587, United States v. 606 F2d 589 1979) (citations omitted)). Cir Weinstein, See also John B. (2d 608.13(2), § 4 Weinstein’sFederal Evidence ed 608-25 1997) (stating only required lay opin- that the foundation for personal knowledge); ions as to character that of State v. (Ct App), Carsner, 911, 144, 126 Idaho 894 P2d 150-51 rev (Idaho 1995). den explained As in Federal Practice and Procedure, opinion testimony FRE admitted under 608 must be both rationally helpful Wright based and to the trier of fact. Gold, § 28 Federal Practice 6114, and Procedure at 53-54 701). (describing requirements requirement of FRE opinion rationally compo that the be based includes two * * * “opinion logically nents: that the be on based data that is connected to the truthfulness or untruthfulness of the other ** * [and that] opinion witness of the character * * * perception be witness based on sufficient of the other * * Although § opinion witness Id. at 53. an wit perception ness’s contemporaneous of the substantive witness need not be e.g., see, trial, Weinstein,
with the (noting § 608.13[2], Weinstein’s Federal Evidence at 608-25 that recent information about the substantive witness is not prerequisite opinion testimony), a formal to admission of if perception opinion on which the is based is remote from opinion testimony may the crime trial, and the be (in e.g., App See, excluded. Caffee, 116 Or a at 27 case in writing, which the recent contact consisted of letter court excluded the current basis for the evidence because of of the lack a
testimony). recently explained by As “[t]he period [in federal district court, most relevant time determining admissibility opinion evidence] of is from the testifying.” date ofthe crime to the date the witness United (D 1995).3 Crumby, Supp 1354, 1364 States v. 895 F Ariz 4Focusing period logical on the time from the crime trial is whenever the credibility sought impeached of the witness to be concerns the criminal conduct. require personal The fact that the case law does not an witness’s knowl edge very of the substantive witness to be based on interaction close to the time of that, opinion testimony, solely trial indicates at least with the focus is not Instead, person whether the witness is an honest at the time of trial. because wit honesty reliability perception ness’s on the stand is based on the (1) events, underlying credibility comprises components: a witness’s two whether
Here, defendant to introduce the sought witnesses the character truthfulness several the two Kelly, alleged Jennifer the mothers of victims. He also to introduce evidence that one of the sought victims, K, Most of the character wit- child was untruthful. *20 had with state witnesses that was nesses had contact the The alleged with the crimes. trial roughly contemporaneous legal error in the standard for applying court committed evidence to defendant’s reputation proffered admission of evidence.4 opinion use of the example wrong
One
of the trial court’s
testi-
opinion
standard is its exclusion of the
foundational
boss, Southerton, on
mony
ground
former
the
of Jennifer’s
“community-based”
knowledge
that her
Jennifer was not
does not address the fact
majority
or “characteristic.”5
clearly
wrong
the trial court
used the
standard
that
It
holds that
excluding
testimony.
merely
the former boss’s
that an
about Jennifer’s
properly
opinion
the trial court
held
a single
not
based on
character
for truthfulness
could
be
it
both the
holding,
ignores
of untruthfulness.
so
instance
(2)
perception of
at
and whether the
witness is
in her
the events
issue
the
honest
words,
person’s
perception
if
trial. In other
tells the truth about that
at
witness
dishonesty,
person
by
if the
has
perception of
at
is colored
even
the events
issue
trial,
by
portrayal
person
events
an
the time of
the
the
somehow become
honest
Thus,
by
perception.
the
will
be tainted
the dishonest
an
at
time
the crime
still
may testify
long
knowledge
opinion
the
of the substantive witness is
witness
so
as
period during
disputed
trial
the
which the
too remote from either the time of
or
where,
here,
allegedly
point
the evi-
even more obvious
as
occurred. The
is
events
dence
by
at
crime
the witness
the time of the
as
at trial includes statements made
as
trial.
well
4
witnesses
Ordinarily, the
admit or exclude character
trial court’s decision to
Caffee,
App at 27.
116 Or
How
is reviewed for abuse of discretion.
under OEC 608
ever,
to exclude the
whether the trial court based its decision
because the issue of
law,
question
issue should
proper
is a
that
on the
foundational standard
evidence
(11th
1374, 1382-83
Watson, 669 F2d
law. United States v.
be reviewed for errors of
(1997)
1982).
550, 558,
(holding
Reynolds,
Southerton had worked Jennifer for three year allegedly weeks in in which the crime by reported Jennifer, occurred and been had seen she throughout day during Jennifer weeks. She fired Jennifer after in her criminal and off those three
discovering that she had lied background any check about whether she had important criminal convictions. The issue was Southerton employed because business for which she Jennifer was a day center for criminal Further, care children. back- ground falsely completed form that Jennifer stated that it important completing to be truthful in it. explained
As treatises, federal case law and excluding pro- trial court’s reasons for do not proper vide a basis for the exclusion of evidence. long opinion rationally Instead, as as the based wit- on the *21 personal knowledge helpful ness’s and would be to the trier of opinion usually any fact, her should be admitted and defects explored Wright in its bases be on cross-examination. Gold, § 28 Federal Practice and 53-54; Procedure at Weinstein, § 4 Weinstein’s 608.13[2], Federal Evidence at 608-25; Watson, 669 F2d at 1382.
There is no indication in the record that the trial properly court concluded or could have concluded that the proffered requirements. evidence did not meet those It is opinion rationally clear that the was based on the witness’s perception. question beyond telling pro First, it is a lie is opinion bative of one’s truthfulness, so the was rational in opinion per Second, that sense. was based on sufficient ception. Although period, only Southerton Jennifer for knew a brief throughout day
she interacted with her
of that
each
period,
caught
appel
brief
and she
her in one overt lie. Other
late courts have
it
an
concluded that
is
error oflaw to exclude
opinion
opportunities
perceive
witnesses who had similar
e.g.,
See, Watson,
the substantive witnesses.
669 F2d at 1382
Wright
6;n
Gold,
28
Honey
Federal Practice
Procedure
(citing
People,
§ 6114,
1300, 1303
54 n 13
v.
713 P2d
(Colo
(NC
1987)).
1986);
App
v.Morrison,
State
167 although majority otherwise, addition, states testimony admitting way would in no conflate Southerton’s specific opinion with evidence of untruthful acts. evidence Specific prohibited in acts evidence is most cases because of potential prejudicial perceived danger The effect. is that its judge witness, factfinder will substantive often the prior defendant, criminal based on the witness’s acts rather making than The drafters on the a decision based evidence the case. Oregon evidence, rules both in
ofthe and else- opinion simply where, have decided that evidence does not carry prejudice prior as same risk of does evidence of bad majority power acts. The to without refuse enforce that opinion decision, and its some contention that evidence is as sequitur. prejudicial bad is a as some acts evidence non majority’s analysis I also take issue with the of the trial court’s exclusion of the who witnesses would Kelly’s have testified as trial court excluded the character for truthfulness. The
opinion testimony all four of the character witnesses whom defendant wished use to Kelly, impeach complaining the mother of witness B. The opinion testimony of three of the was witnesses excluded Kelly their because three interaction with had occurred about years year during alleg- trial, before that the crime edly by Kelly.6 reported had occurred and been The other wit- opinion testimony simply ness’s was excluded based on a lack explanation. Although foundation, without further remote- excluding reputation ness from the time of trial is a basis for usually excluding opinion evidence, it is basis for Watson, 5; evidence. See 669 F2d at & n 1381-82 1382 Weinstein, 4 § Weinstein’s Federal 608.13[2], Evidence majority relying 608-25; Carsner, P2d at 151. errs in to conclude otherwise. Caffee possible While it is that some could interaction be too report remote from both substantive of the witness’s against Kelly testify The one character witness who testified allowed to was truthfulness, only Kelly’s reputation although sought as to for defendant to have testify him about his of her as character truthfulness well. The trial (The excluding improper basis for court’s was foundation. apparently witness’s admitted because the state object.) failed
168 alleged crime and the trial of permit finding personal Here, the knowledge, that is not case here. the character wit- nesses’s with Kelly contempora- interaction occurred almost crime neously only with her of the and about reports alleged trial.7 The years apparently three before trial court assumed only that the relevant was the of trial. As reference time point stated, opinion the relevant for evidence previously period extends the time of the crime to the time the trial. of from Crumby, Kelly’s 895 F Because Supp 1364. contact the character witnesses occurred at about the same time as Kelly the crime as the the crime by and statements trial, I that were identified or admitted at would conclude Kelly’s the of knowledge that character witness had personal a relevant time In the during period.8 excluding character of three the witnesses because of its testimony of opinion remoteness, trial court understand- the relied on an incorrect It requirements opinion testimony. of the foundation for ing error therefore committed an of law.9 I address whether exclusion the character Finally, of reversal, requires witnesses this case reversal. To warrant must the substantially an evidential error have affected 19.415(2). 103(1); by of a error rights party. “[A]n OEC ORS the substantially rights aggrieved the trial court affects of an 7 lapse alleged pin it time the Because difficult to down the exact between Kelly, lapse and the interaction with I focus on the time between crime witnesses’ opinion Kelly’sreports with the witnesses. In the of the crime and her interaction indictment, simply against alleged occurred the the crimes B had state 1, 1994, 1, Kelly’s January September testimony at trial indi between 1994. family August Oregon Washington in cated that she and her moved from B after move. The 1994 and that had had no contact with defendant Kelly interaction witnesses who have testified about indicated that their would Moreover, transcript appears moved. from the trial with her had ended when she Sep Kelly against Kelly alleged crimes her at the end of that B told about defendant’s report 1994, began beginning October and that first tember or events to toward the end October 1994. authorities 8 whether, Kelly’s on the were her I not if stand need decide impeachment, subject the trial court could have excluded were statements opinion testimony that a time on its determination the character witness’s based years lapse roughly contact did between the trial and the three personal knowledge requirement. meet the 9 majority proposition that the which the relies for is the case on Caffee same, requirements evidence are the for foundational Kirkpatrick extrapolates describing the foundational case which it is the from fact, purport In did not to decide requirements evidence. Caffee that we are with here. issue faced
169
may
party if the
would have
outcome of the case either
or
if the
occurred.
such
have been different
error had not
Where
requires
prejudice exists, the
Hernandez v.
error
reversal.”
(1998)
Machinery Co.,
99, 112,
Barbo
327 Or
concludes otherwise as cumulative the erroneously evidence that it believes was excluded. begin neighbor
I with the who would have testified alleged K, as to the character of one ofthe child victims in the That case. witness is the witness who would have testi- majority agrees character, fied as to K’s and the that the trial excluding testimony. court committed error her It con- testimony cludes, however, that the error was harmless. The credibility at issue concerned the of one of the state’s most important alleged witnesses: one of the two child victims. No other witness testified as to the child’s character truthful- hinged credibility ness, and the entire case on the of wit- physical nesses; no evidence was offered. It follows that the exclusion of that evidence could have affected the result in and, therefore, the case that it was not harmless. majority goes great lengths portray to this credibility
case as a Jennifer, contest between defendant and downplay importance credibility mother, K’s to the verdict and to ofK’s against jury defendant. If the had not believed K, it could not have convicted defendant on the count involv- ing Only sought testify her. one witness as to K’scharacter. By imagination testimony no stretch of the could be may proceeded theory cumulative. The defense have on the that Jennifer had lied and coached K to lie. The fact that emphasize possibility defendant chose to that Jennifer lying coaching emphasizing pos- K, rather than sibility lying everyone that K was else, to Jennifer and does change prove the fact that the state burden to guilt beyond Moreover, defendant’s reasonable doubt. jury would be easier for the to believe that Jennifer had jury if coached K to lie the believed that if was someone who case, would lie. In this admissible evidence that could have materially defendant’s case was excluded. I would advanced involving as to the count K.10 reverse defendant’s conviction I now turn to the witnesses who would have testified Kelly, alleged B, child victim the mother of the second testimony three, bears on count in this case. The excluded against allegedly B The crime B which named occurred between as the victim. January September 1, 1994, 1, 1994. testify respect Only permitted witness was with one Kelly’s concerned character for truthfulness. That opinion Kelly’s rather than the witness’s very and, little foun- character, because it was admitted only slight probative excluded dation, value. The court it had including witnesses, that of of four Kelly’sreputation. testified as to witness who opinion testimony of one of I on the excluded focus would have testified that witnesses, Debra Coonradt. She May Kelly Kelly began in late 1994 when her contact with they family in which lived onto and her moved bus Kelly property, until and that it continued Coonradt’s July. During period, family away early *25 that moved her daily Kelly got her and to know interacted with Coonradt testimony very as her well. The trial court excluded majority the court acted remote, concludes that too and doing above, both so. As discussed its discretion within respect analyses to the foun- on errors of law with are based requirements evidence. admission of for dational lapse the contact and the short time between Based on daughter’s Kelly’s reports accusations, and the first of her Kelly frequency Coonradt, I would of contact between sufficiently probative that the evidence was conclude respect jury’s with decision could have affected involving K on the exclusion of as to the count based 10BecauseI would reverse character, need for me to there is no have testified as to the witness who would testimony who of witnesses it was harmless error to exclude whether address truthfulness. as to Jennifer’s character for have to testified would involving count B. The lack of other viable character testi- mony Kelly my reinforces conclusion that the admis- testimony jury’s sion Coonradt’s could have affected the decision convict. was the character Not evidence respect Kelly very slight probative admitted was category value, it also was of a different from the evidence admitted, issue here. no similar Because was Coonradt’s could not been have cumulative. involving Hence, I would the count B. reverse improperly I Because believe that the trial court con- requirements flated the foundational regard evidence its error in that sodomy Accordingly, harmless, I would reverse both I counts. respectfully dissent.