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State v. Clark

Court of Appeals of Oregon

March 8, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JARED MICHAEL CLARK, Defendant-Appellant.

          Argued and submitted May 29, 2015.

         Curry County Circuit Court 12CR0993; Jesse C. Margolis, Judge.

          David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peensh H. Shah, Assistant Attorney General.

          Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals his judgment of conviction of two counts of first-degree sodomy, ORS 163.405, and four counts of first-degree sexual abuse, ORS 163.427. He raises three assignments of error, all of which concern the trial court's exclusion of portions of testimony from defendant's expert witness, a neuropsychologist, who testified about what he believed to be the flaws of the investigatory interview of the five-year-old victim and about the developmental mental functions of young children. Held: As to each of defendant's challenges, the trial court did not reversibly err, either on the merits or because defendant did not preserve the error.

         Affirmed.

          ORTEGA, P. J.

         Defendant appeals his judgment of conviction of two counts of first-degree sodomy, ORS 163.405, and four counts of first-degree sexual abuse, ORS 163.427. He raises three assignments of error, all of which concern the trial court's exclusion of portions of testimony from defendant's expert witness, a neuropsychologist, who testified about what he believed to be the flaws of the investigatory interview of the five-year-old victim and about the developmental mental functions of young children. As to each of defendant's challenges, we conclude that the trial court did not reversibly err, either based on the merits or because defendant did not preserve the error. Accordingly, we affirm.

         I. BACKGROUND

         We begin by providing a general background of the relevant facts and procedural history and, to provide context for defendant's challenges, the trial court's rulings regarding what it determined to be admissible expert witness testimony. As to the excluded portions of the neuropsychologist's testimony, we address in turn each ruling and its procedural posture as we discuss defendant's assignments of error.

         The five-year-old victim told her father's fiancee that defendant had touched her "privates." The victim was staying with her father in Medford when she reported the abuse but she also lived with her mother in a home in Brookings nearby where defendant lived. When the victim's father learned what she had reported to his fiancee, he questioned the victim about it, and the victim likewise reported that defendant had touched her "privates" but that she had not touched defendant's "privates." In a later conversation, however, the victim acknowledged that she had touched defendant's "privates." The victim's father reported those statements by telephone to Lee, an Oregon State Police (OSP) detective, who then scheduled a forensic interview. Two days later, the victim's father brought her to Grants Pass to be interviewed by Harris, another OSP detective. We need not recount the specific details of the interview, which was videotaped, but suffice it to say, the victim recounted the abuse which constituted the basis of the charges against defendant and there were some inconsistencies in her account of the abuse. When Lee and Harris later interviewed defendant, he denied the allegations of abuse and sodomy.

         Before trial on the six charges on which he was ultimately convicted, defendant indicated that he wanted to present as a witness Dr. Stanulis, a neuropsychologist and forensic psychologist. In a letter report, Stanulis wrote that he had reviewed the videotaped interview of the victim and other investigation materials. Stanulis noted that the case lacked physical evidence of abuse or third party witnesses to the abuse and that he believed that "[e]vidence in a case like this is in the form of memory." Further, he stated that "the most frequent cause of false allegations is not because of lying, but rather the result of suggestibility which can produce false confabulated * * * 'memory' of abuse" and that he would "testify to how 5 year old brains are immature and that memory function at this age is unreliable." In addition to the issue of memory, he wrote, among other things, that "5 year olds are also prone to fantasize and not know the difference between real and make-believe." In support of his proposition that young children have inaccurate recall, he cited an unnamed study which indicated that "in five year olds the accuracy of their recall for events is poor (about a third of an event is recalled accurately while 2/3 is inaccurately recalled" and "a significant percentage (7/30) 'recalled' abuse that did not occur during a videotaped interaction with a male." Stanulis also remarked that he would testify to the manner in which the victim had been questioned and "to what extent that methodology is sound or likely to create false memory." Stanulis specifically noted that his testimony would be "done without vouching or commenting on credibility."

         The state moved for a hearing under OEC 104 to determine the admissibility of Stanulis's testimony under the standards for scientific evidence established by the Supreme Court in State v. Brown, 297 Or 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P.2d 663 (1995) (the Brown hearing).[1] The trial court granted the motion and, after the close of the state's presentation of its evidence, it conducted the requested Brown hearing. During the hearing, Stanulis explained much of what he had set out in his report, and the trial court ruled that certain parts of what Stanulis had intended to testify about were not admissible, which we discuss later. The court, however, allowed the following as scientific evidence:

• About the interview, the court ruled that defendant could "inquire [of Stanulis] as to what the guidelines say.[2] [Defendant] can inquire as to what [Stanulis] sees was done here, that in his view should have been done differently" and that "in the interview process, as you have, the guidelines require the interviewer to look at other possibilities or [an alternative explanation for why a child alleged abuse]."
• The court allowed that Stanulis "may testify that children sometimes might not remember events correctly, that they might confabulate, and that they might fantasize, and that they might tell a story that sounds plausible, even though it is-even though there might be some incorrect information or something along those lines."
• The court ruled that Stanulis could testify that "five year olds are prone to fantasize and not know the difference between real and make-believe."
• The court allowed this statement from Stanulis's report- "[I]n spite of poor accuracy, [five-year-olds] can and do relate plausible events that may appear accurate when, in fact, the recall is very poor." The court warned, however, that "care must be taken to not suggest or imply that that's a reference to this specific case or this specific witness" and, as a general proposition, "[Stanulis] can testify that there have been instances where children have recalled abuse which did not occur."
• The court permitted Stanulis to opine that there "is an alternative explanation for the child witnesses-or there can be alternative explanations for children who allege sexual abuse. He's not going to say in this case there's an alternative explanation, but just that in general there can be, and that's a legitimate subject for an expert who's a psychologist to testify about."

         At trial, the state played the video of the victim's forensic interview and, afterwards, the victim testified. Then six years old, she recalled that she lived in Brookings for a period of time and indicated that she recognized defendant and that he had lived in the Brookings house. Although she remembered being interviewed by Harris, she neither recalled any of the abuse nor remembered making any of the statements she had made in the forensic interview. When asked if she told Harris the truth, she replied that she had. Defendant testified, again denying that he had abused the victim. Stanulis testified, although to much less than he had at the Brown hearing. Several times during his testimony, the trial court ruled that Stanulis's statements were inadmissible; defendant challenges on appeal some of those rulings and some of the rulings made during the Brown hearing.

         II. LEGAL FRAMEWORK FOR SCIENTIFIC EVIDENCE

         Scientific testimony is admissible if it is (1) relevant under OEC 401; (2) of some assistance to the trier of fact under OEC 702; and (3) under OEC 403, its probative value is not outweighed by the danger of unfair prejudice or jury confusion.[3] Applying those evidentiary rules, the court determines "'whether scientific evidence is probative under OEC 401'" and conducts the "'relevancy and prejudice analysis implicated in OEC 702's helpfulness standard[.]'" Jennings v. Baxter Healthcare Corp.. 331 Or 285, 302, 14 P.3d 596 (2000) (quoting Brown, 297 Or at 417); see also Brown, 297 Or at 409 (a court must "identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission"). The court considers a number of factors as guidelines when determining the relevance or probative value of proffered scientific evidence under OEC 401 and OEC 702.[4] O'Key, 321 Or at 303-04; Brown, 297 Or at 417. The "overarching subject of this multifactor, flexible inquiry is the scientific validity- and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission [, ]"[5] O'Key, 321 Or at 305 (internal quotation marks omitted).

         It is the burden of the party offering the scientific evidence-here, defendant-to establish that the evidence is scientifically valid. State v. Perry. 347 Or 110, 122, 218 P.3d 95 (2009). "That is, the party offering the scientific evidence must establish that the evidence 'possesses sufficient indicia of scientific validity to be helpful to the jury under OEC 702.'" State v. Dulfu. 282 Or.App. 209, 218, 386 P.3d 85, 91 (2016) (quoting State v. Sanchez-Alfonso. 352 Or 790, 801, 293 P.3d 1011 (2012)).

         Also implicated in the trial court's rulings is the prohibition against commenting on the credibility of a witness. That is, a witness is prohibited from commenting directly on whether another witness is testifying truthfully or whether another witness's prior statement was truthful. State v. Keller, 315 Or 273, 284-85, 844 P.2d 195 (1993); State v. Middleton, 294 Or 427, 437-38, 657 P.2d 1215 (1983). However, the "jury's function is not impinged upon when expert testimony does no more than provide jurors with useful, nonconclusive information from which inferences as to credibility may be drawn." State v. Remme. 173 Or.App. 546, 562, 23 P.3d 374 (2001) (observing that it was permissible to allow a witness to provide the jury with possible reasons for the victim's behavior) (emphases in original). With that legal framework in mind, we turn to defendant's claims of error in which he contends that the trial court erred in excluding certain portions of Stanulis's testimony or proposed testimony.

         III. ANALYSIS

         A. "Confusion between fantasy and reality"

         Defendant's first assignment of error challenges the court's ruling which sustained the state's objection to Stanulis's testimony, italicized as follows, during the trial:

"[DEFENDANT]: All right. Doctor, what can you tell us about a five year old's brain and memory?
"[STANULIS]: Well, it's still in the process of maturing, so it still has issues. The memory systems, language systems, still concrete thinking, it's still a relatively immature brain.
"[DEFENDANT]: Okay. The development of that brain at five years old generally, what-what aspects does it have that adult-what aspects does it not have that an adult might have generally?
"[STATE]: Objection, Your Honor.
"THE COURT: Overruled.
"[STANULIS]: Okay. A child's brain, the memory systems are still developing. You see concrete thinking. You see suggestibility. You see confusion ...

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