and submitted September 29, 2017.
County Circuit Court 13C46615, 15CR06590; Dale Penn, Judge.
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
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
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.
Or.App. 294] SHORR, J.
appeals two judgments of conviction, entered after a combined
trial with codefendant Mendoza-Sanchez, his father, for
various sexual offenses. 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
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.
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).
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.
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 ...