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State v. Dye

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
TRAVIS SHAYNE DYE, Defendant-Appellant.

          Argued and Submitted December 16, 2015

         Klamath County Circuit Court 1202081CR; Dan Bunch, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Steven T. Wax, Janis C. Puracal, Aliza B. Kaplan, and Oregon Innocence Project and Michael R. Levine, Matthew G. McHenry, and Levine & McHenry LLC fled the briefs amicus curiae for Oregon Innocence Project.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore. [*]

         [286 Or.App. 627] Case Summary:

         Defendant appeals a judgment of conviction on one count of first degree unlawful sexual penetration, for which he received the presumptive sentence of 25 years' imprisonment. On appeal, he argues that the trial court erroneously excluded his proffered expert testimony regarding false memory, and, thereby, undercut his ability to argue that the child complainant's accusations against him were the product of a false memory rather than his abuse. The state does not dispute that the specific part of the expert's testimony that is the subject of defendant's assignment of error-generalized testimony regarding false memory and the circumstances that cause it-would have been admissible if offered independently of the rest of the expert's testimony. But, according to the state, that was not how defendant proffered the testimony. According to the state, the expert's testimony was proffered and rejected in its entirety, so defendant cannot now argue on appeal that the court should have admitted a discrete part of his offer of proof. Alternatively, the state argues that the exclusion of the testimony was harmless, because defendant was able to make many of the same points about false memory through one of the state's experts. Held: The trial court did not exclude the expert testimony because it was offered in its entirety; rather, the court discussed the evidence in its entirety because it concluded, as a matter of law, that there was no meaningful difference between the generalized testimony on false memory and the case specific testimony. Because the trial court considered and ruled on the admissibility of the generalized testimony of false memory, that issue was properly before the Court of Appeals, notwithstanding the fact that the trial court, rather than defendant, delineated between parts of the expert's testimony. As for the merits of that argument, the trial court erred in excluding the generalized testimony on false memory, which would have assisted the jury in making its own credibility determination regarding the complainant's testimony. And, contrary to the state's harmless error argument, the limited testimony on false memory elicited from the state's expert was not an adequate substitute for the excluded testimony.

         Reversed and remanded.

         [286 Or.App. 628] DUNCAN, J. pro tempore.

         Defendant appeals a judgment of conviction on one count of first-degree unlawful sexual penetration, ORS 163.411, for which he received the presumptive sentence of 25 years' imprisonment, ORS l37.7OO(2)(b)(F). On appeal, defendant argues that the trial court erroneously excluded his proffered expert testimony regarding false memory, and, thereby, undercut his ability to argue that the child complainant's accusations against him were the product of a false memory rather than his abuse. The state does not dispute that the specific part of the expert's testimony that is the subject of defendant's assignment of error-generalized testimony regarding false memory and the circumstances that cause it-would have been admissible if offered independently of the rest of the expert's testimony. But, according to the state, that was not how defendant proffered the testimony. According to the state, the expert's testimony was proffered and rejected in its entirety, so defendant cannot now argue on appeal that the court should have admitted a discrete part of his offer of proof. See Pumpelly v. Reeves, 273 Or. 808, 812, 543 P.2d 682 (1975) ("It is well established that when a single offer of proof contains both admissible and inadmissible matter, as in this case, it is not error to reject the entire offer."). Alternatively, the state argues that the exclusion of the testimony was harmless in any event, because defendant was able to make many of the same points about false memory through one of the state's experts.

         For the reasons that follow, we agree with defendant that the rule described in Pumpelly is inapplicable in this circumstance, because the trial court separately analyzed and ruled on the admissibility of the part of the expert testimony that is the subject of defendant's assignment of error. Because that ruling was incorrect, as the state essentially concedes, and because we conclude that the exclusion of that testimony prejudiced defendant, we reverse his conviction and remand for further proceedings.

         BACKGROUND

         Defendant was charged with sexually abusing C, who was 8 years old. At the time of the alleged abuse, C and her mother, AM, lived with defendant's stepbrother, R. The [286 Or.App. 629] state presented evidence that, one night, while defendant was staying with them and AM and R were sleeping, defendant put his hand up C's pajama pants and inserted his finger into her vagina.

         Defendant's theory of the case was that he touched C's leg to wake her up and that AM, who did not like defendant, had planted a memory of sexual abuse in C through her questioning of C and repeated suggestions about defendant. In support of that theory, defendant intended to offer testimony from Dr. Daniel Reisberg, a professor of cognitive psychology who studies memory. The state filed a motion in limine to exclude Reisberg's testimony and requested a hearing under OEC 104 on its admissibility.

         At that hearing, Reisberg testified that he had "specialize[d] on the topic of memory and in the last couple of decades * * * been primarily focused on how people remember emotional events that they have experienced in their lives, and with a special focus on the kinds of memories that are likely to be of interest to the justice system." He then testified extensively on the subject of "false memory, " which he explained refers to "the situation in which someone might be honestly, sincerely telling you exactly what they remember and so they're not lying, they're telling you what they remember, but at the same time they have it wrong; they are reporting on things that are just different from actual events and so they're not telling you the truth, either." He described, among other things, the circumstances that tend to increase the risk of false memories in children, including the passage of time since the event, improper questioning (leading as opposed to open-ended questions from an adult), repetitive assertions by an adult, particularly a trusted adult ("Mr. Smith hurts little girls"), stereotype induction (whereby an adult characterizes another person, such as "Mr. Smith is a really clumsy man, " and then invites a child to comment and contribute to a conversation), a parent convincing a child to lie or adding false details to an actual event, and a parent rewarding or punishing a child for the child's responses.

         Reisberg testified that a child's susceptibility to the creation of a false memory under those circumstances [286 Or.App. 630] can depend on age. He explained that a preschooler is more susceptible to a "suggestion coming in from the outside, " whereas children between seven and nine years old are the most susceptible to false memories created by "means of imagination or inference." "To a large extent, though, by the time a child is 8, perhaps 9, at that point the child's memory for most purposes works about the same way an adult's memory does, " but "nobody gets to an age at which they're no longer vulnerable" to false memories. He testified that "the factors are the same" for adults; "I mean, it's a little bit difficult, more difficult, in an adult to plant these memories but, I mean, it's easy to find studies in which with just a little bit of suggestion researchers have gotten 25 and 30 and 40 percent of the people believing in something that never happened at all."

         Later in his testimony, Reisberg was asked whether he had reviewed materials regarding defendant's case. He responded that he had reviewed the report of the interview of C conducted by Children At Risk Evaluation Services (CARES) and police reports, had watched the CARES interview, and had seen materials from custody hearings involving C. Reisberg then explained that "there are certainly factors in this case that struck me as sorts of things that have in many, many studies been shown to increase the likelihood of false memories, which would increase my concern about whether this is [sic] might be a false memory." He then proceeded to testify about the particular circumstances that could have contributed to the creation of a false memory in C, including the passage of time between the ...


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