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State v. Mendoza-Sanchez

Court of Appeals of Oregon

April 11, 2018

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

          Argued and submitted September 29, 2017.

          Marion County Circuit Court 15CR06118; Dale Penn, 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.

          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 a judgment 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. Held: The trial court erred in excluding the expert testimony on memory source confusion and the error was not harmless.

         [291 Or.App. 300] SHORR, J.

         Defendant appeals a judgment of conviction, entered after a combined trial with codefendant Mendoza-Lopez, his son, for two counts of first-degree unlawful sexual penetration, ORS 163.411, and three counts of first-degree sexual abuse, ORS 163.427.[1] See State v. Mendoza-Lopez, 291 Or App 292, ___ P3d ___ (2018). He challenges 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. Specifically, defendant contends that the excluded evidence was relevant to demonstrate that the complainants' memories had been altered over time, and that they may have been confused about the identity of their abusers. For the reasons explained below, we conclude that the trial court erred in excluding the expert testimony on memory source confusion, and that the error was not harmless. We therefore reverse and remand defendant's convictions for first-degree unlawful sexual penetration and first-degree sexual abuse.[2]

         Defendant and codefendant were each charged with sexually abusing two young children who were their relatives, MS and SM. The complainants did not disclose the abuse until around 10 years later and were legally adults when they were interviewed at Liberty House, an agency that conducts forensic examinations and interviews of children who may have been abused. Before trial, the state moved in limine to disallow the defense from calling as a witness Dr. Bourg, a psychologist who specializes in child forensic interviewing. In support of that motion, the state asserted that it did not intend to offer "child" hearsay by calling any Liberty House staff, interviewers, or doctors in its case-in-chief, because the complaining witnesses were adults at the time of their Liberty House interviews. As a result, the state argued, any expert testimony about child forensic interviewing would be irrelevant to the case.

         [291 Or.App. 301] The court did not make a pretrial ruling on the motion and the case proceeded to a combined jury trial against defendant and codefendant, where the following testimony was elicited. MS and her younger sister SM moved from Mexico to Oregon in 2001, when they were about five and six years old. They lived with their mother and grandfather in a trailer. At some point, their grandfather's brother (defendant) and his son (codefendant) came to live with them in the trailer. Defendants lived with the family for about a year and a half before moving into the house next door, which was occupied by several other men. According to the complainants' mother, the men next door "didn't seem like good people"-they drank alcohol a lot and she often saw sex workers entering the house.

         MS testified that, when defendants were living in the trailer with her family, they began to sexually abuse her. She recounted that codefendant abused her routinely when she would arrive home after school but before her grandfather and mother came home from work, and that defendant would sometimes be in the room while this abuse took place. Defendant appeared to be aware of the abuse because he "would look over and he would see [codefendant] and he would laugh." On one occasion, MS remembered her sister being in the room during the abuse and trying to hit codefendant to get him to stop; other times, she was alone with codefendant because defendant would take her sister to the house next door to "separate" the girls. MS also testified that the men who lived in the house next door would take her hand and lead her and SM into the house. There, they would play a "magic" game:

"The game is that they would take off a piece of my hair and they would put it in a paper and they would roll it up and with the paper they would have to try and pull the hair and if they were able to pull the hair, then that was magic. And each time they did that, they would have the right to fondle me or give me a kiss."

         MS testified that the men next door never touched her breasts or genitals, but that she remembers them touching her hair and face and giving her kisses. She recalled one occasion inside the trailer when codefendant forced her to kiss her sister, and that the men from next door were there [291 Or.App. 302] watching. Both defendants threatened to hurt her family if she disclosed the abuse, so she never discussed it with her mother or grandfather.

         SM testified that both defendants sexually abused her when they were living in the trailer with her and her family. She stated that codefendant abused her "many times," and that defendant and her sister were sometimes in the room when it happened. She testified that defendant also sexually abused her on numerous occasions, and that "it gradually got worse." When SM saw codefendant abusing her sister, she would attempt to hit him to make him stop touching MS, but defendant would hold her back or take her to the house next door so that she could not interfere. SM testified that the men living next door were all Mexican and "had more or less the same profile as [defendant]"-"dark hair, black hair with the same kind of body type." The men tried to get her to drink beer and watched as codefendant abused her; on several occasions, one of the other men in the house next door also touched her genitals. Sometimes, the men from next door would come to the trailer and watch while the abuse occurred. SM testified that defendants also took her to a nearby apartment where they abused her in front of other men; on one occasion, she was touched by one of the other men. SM did not tell her mother or grandfather about the abuse she endured because she was scared that defendants were going to hurt her family.

         After defendants moved out of the trailer and into the house next door, MS and SM accompanied their mother to Mexico for an extended visit to see their aunt and other family members. At some point, their aunt became suspicious that something bad had happened to the girls in Oregon and she took them to see a psychologist. They eventually disclosed the abuse to their aunt, but asked her not tell their mother specifically what had happened. The complainants' aunt told their mother that something bad had happened in Oregon, but she did not provide any further details. After about a year in Mexico, MS, SM, and their mother moved back to Oregon and got a place of their own.

         The complainants did not report the abuse until roughly 10 years later, when MS saw codefendant standing [291 Or.App. 303] at a bus stop holding a little girl and was reminded of the abuse she had endured when she was a little girl. After MS told her mother that she had been sexually abused as a child, she was taken to Liberty House. SM accompanied her sister and mother to Liberty House, but did not want to speak to anyone initially. The following year, SM reported that she had also been sexually abused by defendants.

         After the state rested its case, the trial court revisited the state's motion to exclude Bourg's expert testimony. The state reiterated its argument that Bourg's expertise in child psychology and interviewing was not relevant because the complaining witnesses were adults by the time they were interviewed at Liberty House and because the state had not presented any testimony from the Liberty House interviewers. Although the state acknowledged the relevance of general testimony about "how memory works," it argued that any expert testimony about memory source confusion or suggestibility would be irrelevant because there had been no evidence presented to support a defense theory that the complainants were confused about the identity of their abusers or that their memories had been tainted.

         Defendant called Bourg to the stand for an offer of proof. After discussing her training and experience in the field of child psychology and child interviewing, Bourg gave her opinion about the Liberty House interviews conducted in this case. Among other things, she testified about the concept of memory source confusion, explaining that children under 12 generally lack the ability to identify "how they know what they know. * * * [I] f a child learns of something from their direct experience versus if they learn about it from their mother," for example, "they're not going to have the ability to tell you how they gained that knowledge." As a result, it is also possible for young children to confuse the source of their abuse by blaming someone who did not actually perpetrate the abuse:

"BOURG: There's research showing that you can confuse who did something. Um, nothing that would relate specifically to that particular sequence of events being especially relevant, simply that it is possible to confuse who did something to you as well as what they did and as well as [291 Or.App. 304] how you know it. So, for example, research has shown that people can confuse whether a doctor or a nurse gave them a shot. People can confuse, research has shown that people can confuse who sexual [ly] abused them. There's research documenting that.
“[DEFENSE COUNSEL]: So, * * * hypothetically then, if you knew about somebody in a trailer who was also abusing these young girls, is that a possible source of confusion they could blame somebody else for that abuse? Is that possible or not possible?
"BOURG: It is possible to confuse who did it. "[DEFENSE COUNSEL]: And why? Why is that ...

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