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State v. Mendoza-Lopez

Court of Appeals of Oregon

April 11, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
PABLO ENRIQUE MENDOZA-LOPEZ, Defendant-Appellant.

          Argued and submitted September 29, 2017.

          Marion County Circuit Court 13C46615, 15CR06590; Dale Penn, Judge.

          Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson LLP.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him 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 two judgments of conviction, entered after a combined trial with codefendant, for various sexual offenses. He assigns error to the trial court's exclusion of expert testimony from a child psychologist about memory source confusion, which defendant claims was relevant to his theory of defense-that the complainants' memories had been altered over time, and that they may have been confused about the identity of their abusers. The state argues that defendant did not preserve his claim because he did not join in his codefendant's theory of misidentification or argue the defense himself, and, in any event, because codefendant abandoned his attempt to introduce the evidence when the court made a preliminary ruling excluding a portion of the expert's testimony. Held: Defendant's claim was preserved for appellate review. Furthermore, the [291 Or.App. 293] trial court erred in excluding the expert testimony on memory source confusion and the error was not harmless.

         [291 Or.App. 294] SHORR, J.

         Defendant appeals two judgments of conviction, entered after a combined trial with codefendant Mendoza-Sanchez, his father, for various sexual offenses.[1] See State v. Mendoza-Sanchez, 291 Or App 299, ___ P3d ___(2018). In his first assignment of error, he challenges the trial court's exclusion of expert testimony from a child psychologist about memory source confusion, which defendant claims was relevant to demonstrate that the complainants' memories had been altered over time such that they may have been confused about the identity of their abusers. The state argues that defendant did not preserve his claim because he did not join in his codefendant's theory of misidentification or argue the defense theory himself, and, in any event, because codefendant abandoned his attempt to introduce the evidence when the court made a preliminary ruling excluding a portion of the expert's testimony. We write only to address the state's preservation arguments, and conclude that defendant adequately preserved his challenge for appellate review. And, for the reasons explained in Mendoza-Sanchez, we conclude that the trial court erred in excluding the expert testimony, and that the error was not harmless. Mendoza-Sanchez, 291 Or App at ___. We therefore reverse and remand defendant's convictions.[2]

         Preservation is required "to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument," State v. Whitmore, 257 Or App 664, 666, 307 P3d 552 (2013) (internal quotation marks omitted), and to give the trial court "the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or [291 Or.App. 295] correcting one already made, which in turn may obviate the need for an appeal," Peeples v. Lampert, 345 Or. 209, 219, 191 P3d 637 (2008). Preservation also "fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it." Id. at 219-20. "Ultimately, the preservation rule is a practical one, and close calls * * * inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served." State v. Parkins, 346 Or. 333, 341, 211 P3d 262 (2009). This case presents a close call, and, thus, we examine the record to determine if the purposes of preservation have been met.

         We begin with the state's argument that defendant failed to preserve his challenge by not joining in codefendant's argument in favor of admissibility. Before trial, the state filed identical motions in limine in both cases, seeking to prevent the defendants from calling to the stand Dr. Bourg, a psychologist who specializes in child forensic interviewing. In support of those motions, the state asserted that it did not intend to offer "child" hearsay by calling any forensic interviewers in its case-in-chief, because the complainants were adults at the time of their interviews. The state argued that any expert testimony about child forensic interviewing was therefore irrelevant. Neither defendant nor codefendant responded to the motion in writing, and the court did not hear argument until after the state rested its case. At that time, codefendant called Bourg to the stand for an offer of proof, after which the trial court granted the state's motion in part, ruling that Bourg would be permitted to testify generally about memory and child interviewing, but not about the concept of memory source confusion. See Mendoza-Sanchez, 291 Or App at ___ (discussing evidence elicited at hearing on offer of proof and the court's ruling).

         The state correctly observes that defendant did not explicitly join in codefendant's offer of proof and made no independent argument or objection to the court's ruling limiting the expert testimony. It also observes that, at other times during the pretrial proceedings, counsel for both defendant and codefendant did explicitly join in each other's arguments. Furthermore, the state argues that defendant's "opening and closing arguments demonstrate that he [291 Or.App. 296] made a choice not to litigate the admissibility of Dr. Bourg's testimony, because that testimony was immaterial to his arguments." That is, defendant's arguments were focused on whether the complainants had fabricated their stories of abuse entirely, not on whether the complainants had mis-identified their abusers. The state contends that defendant opted to pursue a different trial strategy than codefendant, and thus he should not be permitted to adopt codefendant's strategy on appeal.

         Defendant, on the other hand, contends that Bourg's expert testimony was integral to both his and codefendant's theories of defense. He argues that it was clear to the trial court and all parties that the defenses were intertwined, and that Bourg was being offered as a joint witness. There is support in the record for defendant's contentions. For instance, when defendant filed a pretrial motion to dismiss for want of compulsory process, he stated that he could not present his defense without codefendant's testimony, explaining:

"Defendant has conducted a thorough investigation over the course of the last two years. Over the course of that investigation, it has become apparent that [codefendant] is the only known person who is capable of explaining this multi-generational feud within the family. That testimony will be used to explain a potential source of motive and bias. It will also be used to help explain, during Dr. Wendy Bourg's testimony, how familial animosity or bias between a close family member can taint, direct, or otherwise influence these two young girls to allege horrific acts of abuse, more than a decade after they allegedly occurred. Absent that testimony, defendant will simply be unable to tell his side of the story."

(Emphasis added.) Then, during the hearing on the state's motion in limine to exclude Bourg's ...


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