Argued and Submitted January 29, 2014
Linn County Circuit Court. 05102194. Thomas McHill, Judge.
David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant. With him on the opening brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General. With him on the reply brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Kristin A. Carveth, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[268 Or.App. 579] DUNCAN, P. J.
In this criminal case, the state appeals the trial court's pretrial order excluding certain testimony. See ORS 138.060(1)(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, and attempted unlawful sexual penetration, ORS 163.411 and ORS 161.405, for sexually touching the complainant, his ten-year-old niece, A. A jury found defendant guilty of both crimes, the trial court entered a judgment of conviction, and defendant appealed. The Supreme Court reversed the judgment and remanded the case for a new trial on the ground that the trial court erred by using an anonymous jury. State v. Sundberg, 349 Or 608, 625, 247 P.3d 1213 (2011).
On remand, defendant filed a pretrial motion to limit the testimony of the doctor who had conducted an [268 Or.App. 580] examination of A in connection with the alleged sexual touching. When the trial court ruled on defendant's motion, it used a transcript of the doctor's testimony at the first trial to identify what testimony it was excluding.
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 ...