Argued and Submitted March 9, 2015 at Willamette University College of Law, Salem, Oregon
[Copyrighted Material Omitted]
CC 06FE0574SF; CA A147355. On review from the Court of Appeals. [*]
State v. Beauvais, 261 Or.App. 837, 322 P.3d 1116 (2014)
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Neil F. Byl, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.
Carson L. Whitehead, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
[357 Or. 526] BREWER, J.
Defendant appeals a judgment convicting him of a single count of first-degree sex abuse. ORS 163.427. He assigns error to the circuit court's denial of his motion in limine to exclude expert witness testimony concerning a diagnosis of child sexual abuse, as well as the evaluative criteria underlying that diagnosis that, in defendant's view, impermissibly commented on the credibility of the complaining witness in this case. The Court of Appeals affirmed defendant's conviction. State v. Beauvais, 261 Or.App. 837, 322 P.3d 1116 (2014). For the reasons now explained, we affirm the decision of the Court of Appeals and the judgment of the circuit court.
I. FACTS AND PROCEDURAL BACKGROUND
At the time of the charged incident, KS was ten years old. While babysitting defendant's son, KS and her friend, JC, fell asleep on the living room floor of defendant's home. In the early morning, KS woke up to find defendant kneeling over her with his hand down her pants, touching her vaginal area. When a door opened down the hall, defendant left the room, and KS sat up. Defendant returned to the room and asked KS if she was okay. KS replied that she had a headache and would go back to sleep. When defendant left the room again, KS woke JC and told her that defendant had touched her " private area" and that she wanted to go home. KS called her mother and asked to be picked up from defendant's home. JC's father picked the girls up and, based on KS's disclosure that defendant had touched her private area, took the girls to the police station.
Later that day, White, a sexual assault nurse examiner, examined the girls. In her examination of KS, White found increased redness and swelling of the clitoris and upper labial folds, increased redness in the upper and [357 Or. 527] lower portions of the hymen, and some abrading of the labia. White referred KS to the Kids Intervention and Diagnostic Service Center (KIDS Center), a child abuse intervention center, for a follow up evaluation. About six weeks after the incident, Glesne, a staff interviewer, interviewed KS at the KIDS Center, and Dr. Kyriakos performed a physical examination of KS. Following that examination, Kyriakos made a diagnosis that KS had been sexually abused.
Defendant was charged with one count of first-degree sexual abuse of KS. Before trial, defendant moved in limine to exclude evidence of the KIDS Center evaluation. In that motion, defendant sought to preclude Kyriakos and Glesne from testifying " as to what [KS] told them and * * * that in their opinion they believe that [KS] was sexually abused." Defendant argued that such testimony was hearsay and without sufficient foundation. The state responded that the evidence was admissible because it was relevant, it would assist the trier of fact under OEC 702, and it should not be excluded under OEC 403.
In a reply brief, defendant expanded the scope of his motion in limine by seeking to exclude " evidence of a diagnosis of child sexual abuse" and " any and all other evidence that possesses the increased potential to influence the trier of fact as scientific evidence, technical evidence, and/or other evidence concerning specialized knowledge." Defendant argued that such evidence was irrelevant under OEC 401, invalid as scientific evidence under OEC 702, and unfairly prejudicial under OEC 403. See State v. Brown, 297 Or. 404, 438-39, [357 Or. 528] 687 P.2d 751 (1984) (setting out test for admission of scientific evidence). Defendant also asserted that the KIDS Center evidence as a whole impermissibly commented on KS's credibility. As pertinent to the issues before us, defendant argued that
" [t]he scientific, technical or other specialized knowledge will not assist the trier of fact in understanding the evidence or determining a fact in issue. Defendant will argue that the proffered testimony does not constitute a complex or 'superficially bizarre' phenomenon outside the experience of most jurors. Rather, the proffered testimony concerns a straight-forward matter well within the common experience of most jurors."
Defendant also argued that " [a]ny such evidence would be an impermissible comment on the credibility of another witness," citing State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983) (" [I]n Oregon[,] a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." ).
At a pretrial hearing on defendant's motion in limine, Kyriakos testified about the KIDS Center interview and evaluative processes, how a diagnosis of child sexual abuse is made, and her evaluation of KS. Kyriakos stated that, in evaluating a child for sexual abuse, she looks for physical signs that are " diagnostic" of abuse. She also gathers histories from the child, caregivers, and others, including law enforcement and other referral sources. According to Kyriakos, the KIDS Center follows accepted national and state criteria, which, in addition to physical evidence, include consideration of (1) consistency in the core details that the child has given over time to law enforcement, caregivers, and others, as well as the information the child provides at the KIDS Center; (2) whether the child was able to give multiple, in depth, and contextual details; (3) whether the child provided information in more than one media form, including verbally, through drawings, and by using the child's own body as a reference; (4) whether the disclosure of abuse was made spontaneously or whether the child was asked about it first; (5) whether the child provided specific details regarding sensory-type information, such as something that [357 Or. 529] the child felt; and (6) behavioral changes. According to Kyriakos, behavioral changes do not necessarily establish that abuse occurred, but they are " concerning."
Insofar as this case is concerned, Kyriakos testified that she reviewed White's report of her physical examination of KS and noted that White had found redness, swelling, and abrasions on KS's vaginal area. Those physical findings were important to Kyriakos because White had examined KS on the day of the charged incident; Kyriakos could not discern an explanation for the redness, swelling, and abrasions, other than sexual abuse. Kyriakos did not find any physical signs of sexual abuse in her examination of KS, but she was not surprised, because those symptoms usually resolve within days.
Kyriakos testified at length about her application of the evaluative criteria to KS. She stated that the core details that KS had described were consistent with the core details that she had recounted to police officers, her mother, and White. In addition, KS provided multiple details, including a description of the room and furniture where the abuse had occurred and how defendant's body had been positioned. KS also described the incident through multiple media, including a verbal description, a drawing, and by using her own body as a reference. During the interview, KS got down on the floor to demonstrate defendant's position when she woke up to find him on top of her. She also used her body to describe where defendant had touched her. During the physical examination, Kyriakos placed her fingers on the outside of KS's labia, and KS was able to tell Kyriakos that defendant had touched her " more inside." Kyriakos stated that KS's disclosure of the abuse also had been spontaneous, in that she woke JC to tell her what had just happened and [357 Or. 530] then promptly contacted her mother. Furthermore, KS used sensory details to describe the incident, stating that she had felt a stinging sensation after defendant had touched her. According to Kyriakos, that detail " would only likely be known if the child had actually experienced the sensation." Finally, Kyriakos stated that behavioral changes that KS's mother had observed in KS since the incident--being more fearful, not wanting to be alone, not wanting to sleep by herself, a change in appetite, sadness, and withdrawal--were relevant to her evaluation. Based on her overall evaluation, Kyriakos testified that she had concluded to a reasonable degree of medical certainty that KS had been sexually abused.
At the close of the pretrial hearing, defendant objected to the testimony of Glesne and Kyriakos, as well as the KIDS Center report and a DVD of Glesne's interview of KS, on the ground that the factual determination whether KS had been sexually abused was not complex and expert testimony was not needed. Defendant reiterated his general objection that the KIDS Center evidence was a comment on the credibility of the witness and that it was " just [a] technique to be able to introduce evidence to juries to bolster the credibility of child witnesses, to convince the jury that they should convict based upon a blanket imprimatur of medical certainty." According to defendant, the evaluative criteria to which Kyriakos testified and that were discussed in the report were " simply a shorthand way of saying that the child is believable."
In addition to the foregoing general objections, defendant specifically objected to the following exchange in Glesne's DVD interview of KS on the ground that it was an impermissible comment on KS's credibility:
" Q: Has anybody ... or did anybody, I guess is a better way of putting this, told you ...