Argued and Submitted: May 29, 2013.
06FE0574SF. Deschutes County Circuit Court. Stephen P. Forte, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Chad Allen Beauvais filed the supplemental brief Pro se.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Duncan, Judge, and Schuman, Senior Judge.
[261 Or.App. 838] SCHUMAN, J.
Defendant was charged with one count of first-degree sexual abuse, ORS 163.427, and two counts of attempted first-degree sexual abuse, arising out of his alleged contact with the victims, J and K. In a motion in limine, defendant sought to exclude the testimony of experts from Kid's Intervention and Diagnostic Service Center (KIDS Center) who had interviewed J and K. According to defendant, one witness's testimony included a diagnosis of sexual abuse and was inadmissible under State v. Southard, 347 Or. 127, 140-41, 218 P.3d 104 (2009), because it was scientific evidence that was highly prejudicial and only minimally probative. Other witnesses' testimony was inadmissible, defendant maintains, because, although it did not directly vouch for the credibility of the victim, it amounted indirectly to the same thing, contrary to the rule in State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010). The trial court denied the motion. The court also denied defendant's motion to sever and motion for a mistrial, in which he contended that trying the counts involving J and K together was prejudicial. Midway through a jury trial, the state dismissed the charges relating to J. Defendant was subsequently convicted of one count of first-degree sexual abuse involving K. He appeals, renewing the arguments that he made below. We conclude that the trial court did not err, and we therefore affirm.
The relevant facts are not in dispute. J and K, ten-year-old girls, were babysitting for defendant's son and were asleep on the floor of defendant's house when defendant and his wife returned home. K awoke to find defendant kneeling down almost on top of her with his hand down her pants. K heard a door open, and defendant left to join his wife in another room. K sat up, and defendant came back into the room. K and defendant engaged in a brief conversation, and defendant left the room again. K woke J and told her that defendant had been touching her in her " private area" and that she wanted to go home. J's father picked up the girls, [261 Or.App. 839] who told him of defendant's conduct; the father then took them to a police station, where they were interviewed. He then took them to a hospital for an evaluation.
At that time, K was examined by White, a sexual-assault nurse. White testified at trial that K had reported " rubbing of her genitalia area," and that, consistent with what K had reported, White's examination of K revealed an " acute injury" in the genital area--abrasions, redness, and swelling that one would not expect to see from typical wiping or cleaning. White described " increased redness and swelling of the clitoris * * * and at the labial folds on the upper portion," and " increased redness in the upper and lower" parts of K's hymen, " which is also consistent with some type of rubbing or blunt trauma." White further testified that K's labia " appeared abraded, as if there's been some shaking, some rubbing." Her written report also stated those findings.
Six weeks later, K was interviewed by Zancanella, a staff person from KIDS Center. Zancanella testified at trial about what KIDS Center looks for in evaluating a child for sexual abuse. Zancanella explained that she looks at whether the child provides information in narrative form and spontaneously. She explained that, when the child can do that, " I'm going to get more details and I'm going to get more accurate information." Zancanella further testified that she looks at whether the child has consistently reported the " core details" to police, medical personnel, and the KIDS Center interviewer. Zancanella explained that, when a child is able to give more details, including sensory details, " there's a very low percentage of making stories up * * *. [T]hat tells us that there's some additional validity."
Glesne, also of KIDS Center, interviewed K, and described at trial the observations relating to K that she considered significant:
" [T]he core details of the information [K] provided [to KIDS Center] were consistent with what she had provided to * * * the sexual assault nurse examiner and the Redmond Police Department. They were also consistent with what had been provided
by another child that had been interviewed previously at the KIDS Center.
[261 Or.App. 840] " [K] used both words, her body, a drawing, to describe what had happened in relating the disclosure that she made at the KIDS Center."
K was also examined by Dr. Kyriakos of KIDS Center. At trial, Kyriakos described what KIDS Center looks for in evaluating a child for sexual abuse. Like Glesne and Zancanella, Kyriakos testified that KIDS Center is " looking to see if there is a physical sign" and " the consistency of the core details that the child has given over time." Kyriakos explained that she looks to see whether the child " was able to give multiple details" and if the " child was able to give information in more than one * * * media form." She testified:
" Q. When you're evaluating a child for any kind of abuse, what is it that--what is it that you're looking for specifically with regard to child sexual abuse, or ...