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State v. Black

Court of Appeals of Oregon

December 6, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHNATHAN RICHARD BLACK, Defendant-Appellant.

          Argued and submitted January 30, 2017 .

         Washington County Circuit Court C140510CR; D. Charles Bailey, Jr., Judge.

          Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment convicting him of multiple sex offenses. He frst assigns error to the trial court's decision to prohibit his expert from testifying that the detective's interviews with child witnesses in this case did not meet certain established protocols for interviews of children who have reported sexual abuse. Defendant asserts that the trial court wrongly concluded that that testimony would be tantamount to a comment on the credibility of the child witnesses. Defendant next assigns error to the trial court's decision to prohibit defendant from calling two surrebuttal witnesses who would have testifed about a state rebuttal witness's character for truthfulness. Held: First, the trial court did not err when it ruled that defendant's expert could not suggest to the jury that the child witnesses were not telling the truth, because the state interviews of the child witnesses did not meet certain established protocols for interviews of children who have reported sexual abuse. That testimony would have been, on the whole, tantamount to a comment on the credibility of the child witnesses. Second, the Court of Appeals could not determine whether the trial [289 Or. 257]court erred in prohibiting defendant from calling the two surrebuttal witnesses, because defendant's offer of proof to the trial court was not suffcient for the court to determine whether the trial court erred or whether that error would have been harmful.

         [289 Or. 258]

          SHORR, JUDGE.

         Defendant appeals a judgment of conviction for multiple sex offenses involving minors, asserting seven assignments of error. We reject defendant's third through seventh assignments of error without further written discussion. We write only to address defendant's first two assignments of error.

         In his first assignment, defendant asserts that the trial court erred in prohibiting his expert witness from testifying that a detective's interviews with child witnesses in this case did not meet certain established protocols for interviews of children who have reported sexual abuse. The trial court allowed the expert to testify in general about the protocols and best practices for such interviews, but prohibited the expert from testifying as to whether he believed that certain protocols that particularly touch on issues of credibility were violated in the interviews in this case. The trial court concluded that defendant's proposed expert testimony assessing the interviews under certain protocols was an improper comment on the credibility of another witness and was therefore inadmissible. As discussed in more detail below, we conclude that the trial court did not err in reaching that conclusion and, accordingly, reject defendant's first assignment of error.

         In his second assignment, defendant contends that the trial court erred when it prohibited defendant from calling two surrebuttal witnesses who would have testified about a state rebuttal witness's character for truthfulness. We reject this assignment of error because defendant failed to make an offer of proof to the trial court to establish a foundation that his surrebuttal witnesses could testify to the state rebuttal witness's character for truthfulness. Without such an offer of proof, we cannot tell if the trial court erred in excluding defendant's surrebuttal witnesses or if any purported error was prejudicial. As a result, we affirm.

         A discussion of the facts underlying the charges, apart from the limited discussion below, is not relevant to the legal issues of this case. Defendant was charged with sexual offenses arising from his conduct with various minors. At trial, defendant sought to call an expert witness, [289 Or. 259] Dr. Johnson, a psychologist with experience working with children. Specifically, defendant told the court that he intended to ask Johnson about certain established protocols for interviewing child witnesses, in general, and the ways in which the interviews with certain child witnesses, "GP" and "JN, " in this case fell short of what those protocols prescribe. Defendant explained that Johnson's testimony would discuss

"[t]he absence of exploration of alternative theories or secondary gain in the interview of [GP] relative to [JN].
"The fact that the methodology used by Detective Massey involved not only leading questions, but suggestive questions, and to some degree, what an ...

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