and submitted September 29, 2017.
County Circuit Court 15CR06118; Dale Penn, Judge.
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
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 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.
Or.App. 300] SHORR, J.
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. 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.
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.
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.
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."
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.
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.
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.
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.
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.
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 ...