In this criminal case, the state appeals the trial court’s pretrial order excluding certain testimony. See ORS 138.060(l)(c) (providing for appeals by the state of trial court pre-trial orders suppressing evidence). The court excluded the testimony on the grounds that it was irrelevant and an impermissible comment on the credibility of a witness. For the reasons explained below, we conclude that the evidence was relevant and was not an impermissible comment on the credibility of a witness. Therefore, we reverse and remand.
The state tried defendant for sexual abuse in the first degree, ORS 163.427,
On remand, defendant filed a pretrial motion to limit the testimony of the doctor who had conducted an examination of A in connection with the alleged sexual touching.
Among the testimony that the trial court excluded was the doctor’s description of how she had examined A and what A had said in response to certain questions during the examination. The court crossed out the following paragraphs in the transcript, indicating that it would not allow the doctor to testify to the same matters during the retrial:
“[DOCTOR:] And I ask the child when I first have my hands on the labia majora, ‘Do you call this the outside of your body or the inside of your body?’ 99.9 percent of children, including [A], described that as the outside. I move that to the side, I ask the children, and I asked [A] this as well, ‘That part in between the labia and the hymen, do you call that outside or inside?’ And [A] referred to that as inside of her body as also do 99.9 percent of children at this age, children who have not started their periods ye[t]. Girls who have not started their periods have not put tampons inside their vagina, they really only have the vaguest concept of what inside the vagina is, and they refer to the hymen and the area in between their labia as inside. And because they haven’t gone through puberty yet, that part of their body is very sensitive to touch and very painful if it’s touched, actually. «Hi % * *
“[PROSECUTOR:] Okay. Based on your training and experience, is it typical for children, particularly of [A’s] age, to consider that portion, the vestibule, to be inside of their body?
“[DOCTOR:] Yes. It’s very typical for children this age to call that inside of their body.”
The trial court ruled that the doctor could not testify that A’s report was “consistent with or ‘normal’ to other females [because] that would be *** improper vouching for the credibility of a witness.” The court also ruled that, because defendant was not charged with a crime requiring proof of penetration, the doctor’s testimony about “the child’s understanding of various parts of her body” and “how the child would sense touching inside of her vagina” was irrelevant. Although it excluded the evidence from the state’s casein-chief based on the record before it at the motion hearing, the trial court ruled that the evidence could become admissible as rebuttal evidence if defendant “open[s] a door” to it.
On appeal, the state, by its own description in its opening brief, “presents a narrow challenge to the trial court’s pretrial ruling excluding evidence that 10-year-old girls, like the alleged victim in this case, typically describe the area between their labia and hymen as inside the vagina, even though that area actually is outside the vagina.” According to the state, that evidence is “admissible expert testimony that will help the jury assess the credibility of [A’s] account of defendant’s misconduct” and “does not * * * constitute impermissible ‘vouching’ for the credibility of a witness” because it is not a comment on A’s credibility.
In his answering brief, defendant argues, as an initial matter, that we lack subject matter jurisdiction to decide this appeal. According to defendant, “ORS 138.060(l)(c) grants the state the right to appeal from a pretrial order suppressing evidence” and we do not have jurisdiction to decide this appeal because the state “is not appealing from an order ‘suppressing’ evidence, as that term has been defined.” (Emphasis omitted.) Defendant acknowledges that, in State v. Koennecke,
As to the merits of the state’s challenge to the trial court’s ruling, defendant argues that the court properly excluded the evidence at issue because the state — which, as the proponent of the evidence, bore the burden of proving its admissibility — failed to establish that the evidence was relevant either to proof of the charged crimes or to A’s credibility. First, defendant argues that the state failed to establish that the evidence was relevant to prove the charged crimes because those crimes — first-degree sexual abuse and attempted first-degree unlawful sexual penetration — do not require penetration of the vagina. See ORS 163.427(l)(a)(A), ORS 163.411(l)(b), and ORS 161.405(1), set out above.
In its reply brief, the state does not dispute defendant’s assertion that the charged crimes do not include penetration as an element, and it does not contend that the evidence is admissible to prove an element of the crimes. Instead, the state responds to defendant’s argument that it failed to articulate how the evidence is relevant to an assessment
In support of its argument, the state relies on State v. White,
As we understand it, the state’s argument is that a juror could infer that A made inconsistent statements about where defendant had touched her and that the doctor’s testimony is admissible to explain the apparent inconsistency. As described above, during her examination of A, the doctor asked A whether the area between her labia and hymen was outside her body or inside, and A answered “inside.” Later in the examination, the doctor asked A to tell her about how defendant touched her and A indicated that defendant had touched her in the area where the doctor was “just checking.” The doctor had checked A’s genital area, first touching the labia majora, then moving those folds of skin to the side to view the hymen, which is a ring of tissue at the opening of the vagina, with a colposcope. The doctor did not touch A’s hymen or vagina. Later, referring back to their conversation about the outside and inside of her body, the doctor asked A if the touching was outside or inside, and A answered “inside.”
It appears that the state’s theory is that a juror could infer that, when A told the doctor that defendant had touched her where the doctor was “just checking,” A meant that defendant had touched her outside the vagina, but when A told the doctor that defendant had touched her “inside,” A meant that defendant had touched her inside the vagina. From those inferences, the state theorizes, a juror could further infer that A had made inconsistent statements and was confused or lying. To protect its case against those inferences, the state contends that it was entitled to introduce evidence to explain why, if A’s reference to the area where the doctor was “just checking” was to an area that is outside the vagina, A would refer to that area as “inside.”
We agree with the state that the doctor’s testimony that 10-year-old girls typically describe the area between their labia and hymen as “inside” their body is relevant to explain why A might have indicated to the doctor that defendant touched her outside the vagina but then said that defendant touched her inside her body. 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.” OEC 401. Here, A’s credibility is at issue; she is the complainant and the outcome of the case will depend on whether the trier of fact accepts her version of events. If the trier of fact finds that A described defendant’s actions in two different ways, it could find that A has made inconsistent statements and, therefore, is not credible. The evidence at issue is relevant to whether A actually made inconsistent statements.
Having concluded that the evidence is relevant, we turn to the question of whether the evidence constitutes an improper comment on the credibility of a witness. As the Supreme Court has ruled, “a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth[,]” State v. Middleton,
Depending on the context in which it is offered, expert testimony regarding statements by a complainant in a child sexual abuse case may be admissible. For example, in Remme, we held that expert testimony regarding recantations by child abuse victims did not constitute an impermissible comment on the credibility of the complainant in the case. Id. at 563-64. We explained that admission of the experts’ testimony that recanting is not uncommon and that it is more likely to occur when children who report abuse are not supported by their families or when there are threats to their safety “did no more than provide the jury with information useful in making [its] assessments” of the complainant’s statements. Id.; see also State v. Romero,
Notably, the Supreme Court has observed that expert testimony in a child sexual abuse case regarding whether the complainant’s statements were “developmentally appropriate for her age is the kind of expert opinion that can assist a jury and ordinarily would be admissible.” State v. Lupoli,
In this case, the evidence on which the state has focused its appeal — that 10-year-old girls, like A, typically describe the area between their labia and hymen as inside their body — is not an impermissible comment on the credibility of A. It is not a direct or indirect statement that the doctor believes that A is telling the truth; it is simply an explanation for why A might have described her anatomy as she did. It is akin to the type of testimony regarding age-appropriate statements that “ordinarily would be admissible.” Lupoli,
In sum, we conclude that the evidence upon which the state has focused its appeal — specifically, the doctor’s testimony that A described the area between her labia and her hymen as “inside” her body, as is typical for girls her age — is relevant to explain the apparent inconsistency in A’s statements regarding where defendant touched her, and we further conclude that the evidence is not an impermissible comment on the credibility of a witness because it is not a direct or indirect statement of the doctor’s assessment of the truthfulness of A’s statements.
Reversed and remanded.
Notes
ORS 163.427 provides, in part:
“(1) A person commits the crime of sexual abuse in the first degree when that person:
“(a) Subjects another person to sexual contact and:
“(A) The victim is less than 14 years of age[.]”
ORS 163.411 provides, in part:
“(1) Except as permitted under ORS 163.412, a person commits the crime of unlawful sexual penetration in the first degree if the person penetrates the vagina, anus or penis of another with any object other than the penis or mouth of the actor and:
«:*: H*
“(b) The victim is under 12 years of age[.]”
ORS 161.405provides, in part:
“(1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”
The state initially charged defendant with unlawful sexual penetration, but during the first trial the state reduced the charge to attempted unlawful sexual penetration in light of the evidence presented.
In his motion, defendant moved to exclude the doctor’s testimony about her diagnosis of sexual abuse, the significance of such a diagnosis, and the physical examination she conducted. The state conceded that the doctor’s testimony about her diagnosis, which was not supported by any physical evidence, was inadmissible under State v. Southard,