Defendant was convicted of one count of second-degree sodomy, ORS 163.395, and two counts of third-degree sodomy, ORS 163.385. On appeal, he advances five assignments of error. Specifically, in his first assignment of error, he argues that a state’s witness improperly commented on the credibility of the complainant. In his second assignment of error, he contends that it was error for the trial court to conclude that he was fit to proceed to trial. In his third and fourth assignments of error, he argues that the trial court erred in sustaining the state’s objections to two of defendant’s questions on redirect examination of his expert witness. Finally, in his fifth assignment of error, he contends that it was unconstitutional for the jury to convict him with less than a unanimous verdict. We conclude that the trial court erred in preventing defense counsel from asking questions on redirect examination of defendant’s expert. Accordingly, we reverse and remand on that basis and decline to reach defendant’s first, second, and fifth assignments of error.
Because defendant was convicted, we summarize the facts in the light most favorable to the state. State v. Vidal,
After the incidents, AS and AL teased each other about being homosexual. When their parents confronted them about the teasing, each complainant denied having sexual contact with defendant, but claimed the other had had sexual contact with defendant. The parents became concerned and called the police. Detective Martin met the family at the Kids First Center, a child abuse assessment center. During interviews with counselors at the Kids First Center, AS denied that defendant had sexually abused him, but claimed that defendant performed oral sex on AL. Likewise, AL denied that defendant had sexually abused him, but claimed that defendant performed oral sex on AS. Martin told the family that he could not pursue the investigation any further based on the boys’ statements.
About a month later, AS told his mother that defendant had performed oral sex on him. The complainant’s mother took AS to the police station where Martin interviewed him. AS told the detective that he had lied during his interview at the Kids First Center and that defendant had performed oral sex on him while he slept at defendant’s home. Martin contacted defendant and interviewed him at the police station. Defendant denied any sexual contact with AS, saying that AS
Defendant was arrested and charged with one count of second-degree sodomy, ORS 163.395, and two counts of third-degree sodomy, ORS 163.385. At trial, Martin, AS, and AL testified for the state. The state also played for the jury defendant’s tape-recorded confession. Defendant’s theory of the case was that none of the witnesses had told consistent stories about what had happened when AS and AL spent the night at defendant’s home and that his own confession was unreliable, raising a reasonable doubt that he had committed the crimes charged.
To rebut his confession, defendant called Dr. Truhn, a psychologist, to testify that defendant suffers from a pervasive developmental disorder not otherwise specified (NOS), alcohol abuse, and a psychotic disorder NOS. According to Truhn’s testimony, a person with a pervasive developmental disorder, when confronted by an authority figure, does not have adequate coping mechanisms and is susceptible to acquiescing in the authority figure’s demands. The trial court and the parties had Truhn’s report before them as an exhibit during Truhn’s testimony, and the report was marked for identification and is part of the appellate record. However, the report was not admitted as evidence for publication to the jury. Within the report, Truhn wrote that defendant’s IQ was 96, which placed him in the 39th percentile and was average for a person his age. His report went on to conclude that, “socially, [defendant] is much younger than his chronological age. Intellectually and cognitively[,] his functioning appears to be consistent with his chronological age. The [psychological tests] do indicate that [defendant] is functioning socially in interpersonal relationships at about the eight to nine year old level.” During trial, Truhn testified that defendant’s social-functioning age was approximately that of a child between eight and 10 years old. On cross-examination, the state asked Truhn whether he concluded in his report that defendant had adequate intelligence and cognitive skills. Truhn replied yes.
On redirect, defense counsel first asked Truhn to turn to page 11 of his report and to read “the sentence directly above the phrase the prosecutor used to ask you about [defendant’s intellectual and cognitive age.” The state requested some time to refer to that page before defense counsel continued his redirect examination. Then defense counsel asked, “Is someone’s social age sometimes different from their intellectual age, Doctor?” The state objected to the question on the ground that it was outside the scope of cross-examination, and the court sustained the objection. Defense counsel then asked whether people who have social difficulties sometimes have normal intelligence. The state objected again on the same basis, and the trial court sustained the objection. At closing, the state told the jury:
“[Truhn] did the testing and he told you what the results of the testing were. And the sum and substance of all of that, at least as they tried to emphasize in his testimony, was that the defendant, while he has average cognitive abilities, thought processes, et cetera, emotionally he’s more immature than other 21 year-old guys.
“With the hopes that the suggestion of that immaturity would allow them to argue that when he made those statements to the detectives, he was too immature to know what he was doing. He was too immature perhaps to appreciate the consequences of what he was doing. He was too immature certainly to withstand * * * the barrage of questioning by the detectives to elicit the answers that they wanted. And only the answers that they wanted.”
Ultimately, the jury found defendant guilty on all counts.
The state relies on State v. White,
The state’s reliance on White is misplaced. Preservation policies are prudential and pragmatic in nature. Peeples v. Lampert,
Similarly, the state’s argument that defendant was required to make an offer of proof to preserve his arguments in this case fails, because the trial court and the prosecutor were aware of the substance of the testimony that defendant would elicit on redirect. See State v. Olmstead,
Both the state and the trial court understood that, in response to defendant’s questions on redirect, Truhn would testify about the contents of his report and explain that despite normal intelligence, an adult can have a pervasive developmental disorder of the type he observed in defendant. When a party assigns error to a trial court’s ruling that excludes evidence, the issue is preserved if “the substance of the evidence was made known to the court by offer or was apparent from the context.” OEC 103(l)(b). Before asking Truhn the question raised on appeal, defense counsel asked Truhn to turn to page 11 of his report and read “the sentence directly above the phrase the prosecutor used to ask you about [defendant’s intellectual and cognitive age.” Then the prosecutor asked for a moment to turn to that page before defense counsel asked the question that is on appeal. It was apparent from the context of the defense counsel’s line of questioning that the substance of Truhn’s testimony would have been related to the prosecutor’s questions about Truhn’s report and the legitimacy of Truhn’s opinion. The state was not taken by surprise, and the trial court had a chance to consider the issue. Therefore, we conclude that defendant’s arguments were preserved.
Turning to the merits of the arguments, we review a trial court’s conclusion that a party’s line of questioning during cross-examination exceeded the scope of direct examination for errors of law. State v. Ramirez,
The Supreme Court explained, before the adoption of the Oregon Evidence Code, that, generally, cross-examination “should not be limited to the exact facts stated, on direct examination, but [may] extendí ] to other matters which tend to limit, explain, or qualify them, or to rebut or modify any inference resulting therefrom, provided they are directly connected with the matter stated in the direct examination.” Ritchie v. Pittman,
Here, defendant’s questions on redirect had a tendency to rebut the state’s implication that defendant’s normal intelligence is proof that he was not pressured into signing a confession during his police interview. During cross-examination, the state asked Truhn about the report he submitted to the court. Specifically, the state asked whether Truhn had concluded in his report that defendant’s intelligence level was adequately normal for a person his age. Within the same paragraph of the report containing that conclusion, Truhn had written that “socially, [defendant] is much younger than his chronological age. Intellectually and cognitively[,] his functioning appears to be consistent with his chronological age. The [psychological tests] do indicate that [defendant] is functioning socially in interpersonal relationships at about the eight to nine year old level.” When defense counsel asked Truhn on redirect whether he had determined that defendant had significant difficulties dealing with social situations, in spite of his intellectual or cognitive age, he inquired about the same subject that the state inquired about on cross-examination — the conclusions in his report and their significance to the reliability of defendant’s confession. That question provided additional evidence that tended to rebut or modify the state’s implication, through cross-examination of Truhn, that the diagnosis was suspect or that defendant’s confession during his interview with police was reliable because he had normal or adequate intelligence. Defense counsel sought to elicit similar testimony by asking whether people who have social difficulties sometimes have normal intelligence. Thus, defense counsel’s questions were directly and logically connected to the cross-examination and were within the scope of redirect examination. On that basis, the trial court erred in sustaining the state’s objection.
Having determined that the trial court erred, we must now determine whether that error was harmless. Evi-dentiary error is not presumed to be prejudicial. OEC 103(1). We will affirm a judgment despite an evidentiary error if there is “little likelihood that the error affected the jury’s verdict.” State v. Davis,
Although the state contends that defendant cannot establish harm due to his failure to make an offer of proof, defendant contends that the error in excluding the evidence likely affected the verdict and was not harmless,
Reversed and remanded.
Notes
OEC 611(2) provides:
“Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”