*1 4, April August Argued and submitted affirmed September reconsideration denied 653) (293 petition for review allowed October Or OREGON, STATE OF Respondent, MIDDLETON, E. LAWRENCE Appellant. A21064)
(No. 80-12-511, CA
Stephen General, Peifer, Salem, F. Assistant *2 respondent. argued him on the the cause for With brief Attorney Frohnmayer, General, and F. were Dave William Gary, General, Salem. Solicitor Presiding Judge, Gillette,
Before and Warden and Young, Judges.
GILLETTE, P. J.
GILLETTE, P. J. degree rape Defendant was convicted of the first 14-year daughter. appeals, assigning his old He as error the admission of certain and the denial of his motion newly for á new trial on the basis of discovered evidence. We affirm. custody
Defendant was divorced and had of his including children, four the victim. On December raped the victim told a friend at school that she had been morning her father. She then told the friend’s reported mother, who the incident to the Children’s Serv- (CSD) hospital ices Division and took the victim to a for an vigorous examination. The doctor found evidence of sexual diagnosed rape past intercourse and The victim recounted the details of the within the 24 hours. county to a police counselor and a officer. Defendant was arrested, and the children were removed from the home. placed The victim was in foster care. She testified before a grand jury 31, 1980; on December 30 or defendant was indicted. February 6, 1981,
On statement, the victim wrote a *3 by persons, stating witnessed her mother and two other rape up story that she had lied about the and had made the thought because she that, wanted to be out on her own by saying raped by she father, was her she would be able to by leave home. stated She that she was influenced half- her pushed making sister and others who her into statements testimony that were not true. Other offered at indi- persons cated that she had told several that she had lied rape going about the and had told still others that she was say rape there had been no because she did not go prison. testimony want her father to Her trial, at original reports rape however, was consistent with the made in December.
During trial, the four witnesses were allowed to testify that the victim had told them that she had been raped by her father. Two of the witnessses were allowed to by give detailed the them accounts of incident related to county addition, the victim. In counselor and a testify that, CSD social worker were allowed to their 450 chil- her, similarly victim acted to other the
dealings by family members. sexually abused who had been dren convicted, the victim con- was After defendant a video-taped She made newsperson. a Portland tacted that she had lied when she in which she stated statement Defendant moved for a raped had her. said that her father of that trial, tape support the video submitting new the tape, viewed the ruled that The trial court motion. at already of evidence introduced evidence was cumulative motion. trial and denied the admission of error to the assigns first
Defendant allowed to recount the witnesses who were the by victim. The made to them report scope specific beyond was testimony allowed sexual assaults: hearsay rule for exception to “* * complaint of sexual miscon- person to whom a *[A] testify can that a by prosecuting witness duct is made complaint made, testify as to the details of but cannot 140, Waites, 137, complaint.” State v. 7 Or P2d 188 (1980); Hackett, P2d 609
See State v.
(1964).1
P2d 172
Its
Yielding, 238 Or
State v.
found in some
therefore be
admissibility
—must
—if
evidentiary rule.2
other
prior
as a
trial court allowed the
The
pros
to rehabilitate
statement
admissible
consistent
her writ
impeached by
had been
witness after she
ecuting
rape.3
claim of
Prior consistent
retracting
ten statement
in certain circumstances:
are admissible
statements
hearsay
803(18a)
exception
It was enacted
rule.
codifies this
ORE
applicable
January
this case.
to the trial of
and therefore was not
effective
however,
applied.
change
appear,
rule as it has been
It does not
report
hearsay
specific exception
of a sexual assault is
rule for the
a crime. In only hearsay exception
in the trial of such
available
not the
Wilson,
(1975),
testimony concerning
we allowed
In State report of a the victim’s testimony concerning admission the victim impeached had after the defendant assault sexual story of the assault. a motive to fabricate by suggesting stepdaughter his theory was that Clark, the defendant’s In fact that he assault, she resented because invented time spend to required and that she had remarried testimony con- We held her half-brother. caring for the defendant sexual contact between reports of cerning motive for suggested had before stepdaughter his credibility of issue of the on the was admissible fabrication witness. complaining that his case, theory was part of defendant’s In this she wanted story because invented the daughter This boyfriend. nearer her home and live away from get to Here, the victim’s in Clark. the same as that theory is not her father —arose away from getting suggested motive — evidence was challenged reports. her prior “* * * statements made consistent evidence [she] theory on If defendant’s not exist.” the motive did when approach, limited to this had been impeachment have been error. ruling would court’s theory however, had a second Defendant, victim’s show attempted He impeachment. sister, her pressure the result trial was testimony at her go back worker CSD social attorney and the her theory, this raped. Against story being original time prior made were statements —which victim’s exerted —were have been could “pressure” any such Clark, statements. consistent prior admissible err. did not The trial court supra. *5 assignment
Defendant’s second of error concerns testimony county a juvenile counselor and a CSD worker, social both of whom were asked compare to of defendant sexually behavior with that of other abused children. Defendant does not contend the witnesses are not experts; rather he contends their invaded province jury. county juvenile counselor, called as a witness prosecution, for the testified that she interviewed the vic way tim. described the the victim She acted during that interview and then testified as follows: “Q. you And have interviewed other children who have reported they sexually by have been family abused a
member?
“A. Yes. —
“Q. typical response upon How do what is the initially speaking you, worker, a court — demeanor, holding terms of-their their hands and
* * * * “A. I very found her behavior much in keeping with children complained who have of sex molestation at home.”
The CSD worker was called defendant and was questioned about the victim’s behavior between the time reported and the time of trial. She indicated the victim had run away from foster care and had skipped school. She was questioned also about whether the victim had wanted to retract her claim that she had been raped. On cross-examination she testified as follows:
“Q. you Are familiar with behavior of children who reported have type this of claim? Absolutely.
“A.
* * * * “Q. Now, Lindemann, Mrs. regarding the behavior of * * * child, running away homes, from two foster can * * * you characterize that or that behavior sexually terms of other abused children? Yes, “A. very is happens characteristic. What they with children get very is that guilt- anxious and are They carry ridden. responsibility. When we talk about victims, victims, really talking chil- we about and sex are guilt really much and so much of the assume so dren happened, ways responsibility for has that one of what impulsive kids handle that teenage kids and kind of away. very a thing simply to run That is common kind of is thing for child do. kind of a to Now,
“Q. retracting reports before a Grand what about Jury police? about that? or made What thing very
“A. kind That also common that, happen. again because When a child does do they they this responsibility, realize guilt, that felt whatever, parent my my my stepfather or this is father or doing person. And I’m care this look what still doing my family. And the And look what I’m them. *6 do, course, just it say gee, to made all thing easiest to of is up I think that kids would like and it isn’t true after all. true, actually They that it true. wish it were that to be happened. hadn’t
“Q. you learned the behavior that have Is case, victim], supervising in her different than other [the sexually abused children? No, all, very typical for a “A. it’s not different at it’s teenage victim.” sex abuse Supreme recently has stated that
The Court “* ** expert testimony] admissibility The the test [of capable drawing infer- jury is its own is not whether a Rather, presented. the test is the evidence ences from believed, help if expert’s testimony, will be of whether 388, Stringer, v. State jury.” to 292 Or or assistance (1982). 391, P2d 639 1264 Co., 335, P2d v. 266 Or 513 also Koch Southern
See Pacific (1973). clear, however, expert that not even an It is 770 testify veracity to of another witness. as entitled to See province jury. testimony would invade Such 23, 328, 333, 412 P2d 413 P2d Walgraeve, 243 Or State whether the evi- question The thus becomes 609 impermissible such an invasion dence constitute jury’s function? provide is does not clear precedent as there
Such LeBrun, 411, P2d App 37 587 In Or guideposts. (1979), upheld 149 (1978), rev 286 Or we 1044 den “Rape Advocate” that testimony of a Victim admission of with comported “the emotional state ‘what most of victim’s come hospital abuse that to the women victims] [sexual ” like, age are from 37 Or at 415. reacting even twelve.’ however, case, apparently only The issue was Rape give Victim Advocate to such qualification of the this That issue is not raised in case. presented Harwood, The issue State v. (1980), rev den Or was here, closer to presented although testimony was Harwood, somewhat different. In we said: “A Children’s Services Division caseworker with sub- experience sexually working stantial with abused children permitted testify was it not was uncommon for children, complainant testified, as perceive here remember during sleep. sexual acts had occurred Defendant challenge qualifications does not the witness’ expert witness but contends this expert amounts comment on the evidence aimed at bolstering complainant’s credibility. “Expért relating credibility evidence to a witness’ goes if ability admissible it of the witness
perceive, Longoria, relate. State v. or remember 1, 20-21, rev den p2d (1974). Psychiatric evidence calling question complainant’s into personality or veracity is, however, jury’s an invasion of the function. Walgraeve, [supra]. State v. “We believe proper. the evidence here average juror experience would have dealing sexually may abused children and believe accounts this nature *7 questionable. The evidence was that is it not uncommon perceive for abused children to and remember sexual encounters in helpful this manner. The was (Footnotes jury omitted; and is admissible.” emphasis in original.) at 939-40.
Obviously, the challenged evidence here bore some relationship question to the credibility; any victim’s from any tending support evidence source or refute her story balance, however, would have. On we find no error in admitting Both witnesses — admitted experts explaining superficially bizarre by behavior —were identifying its emotional Even if antecedents. this had a tendency veracity, to reinforce the victim’s we think that evidence was as admissible as would be a doctor’s personal injury party’s physical in a case behavior injury, although with a was consistent claimed soft tissue objectively injury such an not verifiable. As Har- helpful expert wood, this evidence could be to the trier of fact and admissible.
Finally, assigns defendant as error the denial of his tape recording motion for a new trial on a based video raped, the victim in she had which stated that she not been story up get she had made because she wanted to away from she home and that had testified at trial because pressured so. she was to do Motions for a new trial are
directed to the discretion
trial court and that court’s
only
will
be
for
decision
reversed
abuse
discretion. State
(1981);
Disorbo,
v.
Or
State
(1979).
App 535,
Rollf, 40 Or
“(1) probably if change must be such as will the result granted; newa trial
“(2)
trial;
have
must
been discovered since the
“(3)
be such
could
have been
must
not
discovered
diligence;
before the trial
the exercise of due
“(4)
issue;
must be material
“(5)
merely
evi-
must not be
cumulative of former
dence;
“(6)
merely impeaching
contradicting
not
or
must
be
Williams,
former evidence.” Or
See State v. The trial court here found that presented tape the evidence on the was cumulative of that presented which had been at trial. The defendant admits tape that such a characterization the evidence on contends, inaccurate. Defendant however, that impact seeing story the witness retract her on the video tape jury’s would affect the verdict. jury already indicáted,
As the court had story before it the fact that victim had retracted her basically tape. the same reasons stated on the video After
456 abused say cannot the court
viewing tape, we the for a new motion denying in defendant’s its discretion trial.
Affirmed.
YOUNG,
J., dissenting.
defendant’s second
the resolution of
disagree with
county
held that
the
majority
The
has
of error.
assignment
Services Division
and the Childrens’
counselor
the
expert opinions
their
may express
social worker
qualities of behavior
exhibited those
witness-victim
the
worthy
majority
The
concludes
of belief.
makes her
by
bizarre behavior
superficially
explaining
“were
witnesses
else that
Whatever
its emotional antecedents.”
identifying
that an
in
context of this case
mean,
it means
the
may
the cred-
opinion concerning
an
may give
expert witness
expert
subject
a
ibility
Credibility
of a witness.
Walgraeve,
412 P2d
In
Court,
(1966), quoting
Superior
from
Ballard
(1965),
Cal
court
Rptr
stated:
“ ‘* * * We are also concerned with the invasion of the
by
jury’s province
credibility
to evaluate the
witness
opin-
subjecting
expert
to attack
witness’
presence
an
ion based on
interview conducted outside the
prospect
parade
experts
jury;
a
conflicting opinions confusing
enlightening
rather
than
delay
jury;
guilt
of and
from the trial of the
detraction
by an
or innocence of the accused
excursion into the
witness;
report
and the
mental state
reluctance to
proposed rule
such crimes which the
would instill
unwilling
timid
their
In
or those
bare
souls
world.
change
policy
event such
fundamental
should come
machinery
Legislature
investigative
which
from the
has
fully
proposal,
specify
its
evaluate the
its limits and
operation.
properly
mode
The trial court
denied
”
request
respect.’
petitioner’s
in this
expert
open
permit
door
now
or other
The
testify
it is
behavior for a
typical
“skilled” witness to
witness,
a criminal defendant
tell the truth
a victim or
question
later to recant. The
the first time
then
your experience,
typical
“In
is it
behavior of
expert will be:
change
story?”
one accused of a crime to
his
or “not to tell
the truth?”
majority
Harwood,
relies on State v.
609 P2d
rev den
authority proposition for the that a witness’ can by expert opinion going credibility, be rehabilitated then wrong Harwood is and should be overruled. respectfully dissent.