and submitted July 31, 2018.
County Circuit Court 201503402; Karrie K. McIntyre, Judge.
Stephanie J. Hortsch, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
M. Petrina, Assistant Attorney General, argued the cause for
respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Summary: Defendant appeals his conviction for first-degree
sexual abuse, ORS 163.427, assigning error to the trial
court's ruling that defendant was precluded from
confronting the victim, F, at trial with evidence that she
had previously falsely accused others of sexual abuse.
Defendant argues that the trial court wrongly applied the
analysis set out in State v. LeClair, 83 Or.App.
121, 730 P.2d 609 (1986), and that he has the right to
cross-examine F under the state and federal confrontation
clauses. The state contends that the trial court correctly
applied the LeClair analysis to preclude such
cross-examination in this case. Held: On this
record, the trial court did not abuse its discretion under
LeClair in deciding that the probative value of
cross-examination related to F's allegedly false
accusations of past abuse was substantially outweighed by
risk of prejudice and should be excluded.
Or.App. 713]ORTEGA, P. J.
appeals his conviction for first-degree sexual abuse, ORS
163.427, assigning error to the trial court's ruling that
defendant was precluded from confronting the victim, F, at
trial with evidence that she had previously falsely accused
others of sexual abuse. He contends that our decision in
State v. LeClair, 83 Or.App. 121, 730 P.2d 609
(1986), provides him with the right, under the state and
federal confrontation clauses, to cross-examine F given the
evidence that she had made prior false accusations. The state
asserts that the trial court correctly applied
LeClair to preclude such questioning. Under
LeClair, 83 Or.App. at 130-31, if there is some
evidence from which the court could find that the victim had
made a false accusation of past sexual abuse, the court must
balance whether the probative value of that evidence is
"substantially outweighed by the risk of prejudice,
confusion, embarrassment or delay." Because the
court's findings are supported by evidence and because
the court did not abuse its discretion in balancing probative
value with potential for prejudice and confusion, we
pertinent facts are undisputed and largely procedural. The
charges underlying the conviction involve alleged sexual
abuse of then eight-year-old F. On the night of the alleged
abuse, F, members of her family, and defendant, a friend of
F's mother and stepfather, attended an evening basketball
game at a middle school. During the game, defendant and F
went to a classroom, where defendant allegedly showed F
sexually explicit videos on his phone and then put his hand
underneath her clothing and touched her vagina. Video
surveillance footage established that defendant and F were in
the classroom together for about 28 minutes.
trial, the state sought to preclude defendant from
confronting F with evidence that she had previously made
several false accusations of sexual abuse, and the court held
a hearing outside the presence of the jury [298 Or.App.714]
to evaluate that evidence. In particular, defendant sought to
cross-examine F about prior accusations of sexual abuse
against her brothers, father, and stepfather. Defendant argued
that, in accordance with the criteria for admission under
LeClair, (1) F had recanted the accusations against
her father and brothers; (2) there was "some
evidence" that the accusations against her brothers,
father, and stepfather were false; and (3) the evidence is
highly probative as to F's credibility, and questioning F
would be sufficiently simple in that it would not cause jury
confusion or create unnecessary delay. Defendant contended
that, "as a practical matter," the case
"probably [fell] most clearly under the third
prong"- the "some evidence" balancing
test-of LeClair, rather than the recantation prong.
state maintained that the evidence "falls short" of
what LeClair requires, arguing that there was no
evidence demonstrating false accusations of sexual abuse.
Citing State v. Maxwell, 172 Or.App. 142, 150, 18
P.3d 438, rev den, 332 Or. 559 (2001), the state
argued that, as to F's father, this was "a situation
where the victim denies ever making the allegations proffered
by defense," so the issue is nothing more than a
"factual dispute." As such, the existence of the
allegations is "a collateral matter on which the
admission of evidence would have unnecessarily delayed the
trial and confused the issues before the jury."
provide context for the parties' arguments, we pause to
summarize LeClair. In that case, the defendant, who
was charged with sex crimes related to the abuse of a
seven-year-old victim, sought to introduce evidence that the
victim had previously made false accusations of sexual abuse.
LeClair, 83 Or.App. at 123. The trial court
concluded that the evidence was not admissible and forbade
the defendant from cross-examining the victim about the
incidents on the basis "that that line of inquiry would
unduly shift [298 Or.App. 715] the focus of the trial from
the incident involving [the] defendant to the other
incidents." Id. at 125. On appeal, we concluded
that "[e]vidence of previous false accusations
by an alleged victim is not evidence of past sexual
behavior within the meaning of the Rape Shield Law and,
therefore, is not inadmissible under OEC 412."
Id. at 126-27 (emphases in original). On the other
hand, we noted that OEC 608(2) "forbids any inquiry or
cross-examination into specific incidents of conduct for
impeachment purposes," and that "[s]pecific
instances of conduct include false statements."
Id. at 127. We further noted that the Confrontation
Clause of Article I, section 11, of the Oregon Constitution
allows a defendant to impeach a witness on cross-examination,
though a defendant's confrontation right is not absolute.
Id. at 128-29. We explained that "a court may
prohibit cross-examination for impeachment purposes when the
probative value of the evidence that the defendant seeks to
elicit is substantially outweighed by the risk of
prejudice, confusion, embarrassment or delay."
Id. at 129 (emphasis in original).
we held that, as to evidence of prior false accusations of
"regardless of the prohibitions of OEC 608, the
Confrontation Clause of Article I, section 11, requires that
the court permit a defendant to cross-examine the complaining
witness in front of the jury concerning other accusations she
has made if 1) she has recanted them; 2) the defendant
demonstrates to the court that those accusations were false;
or 3) there is some evidence that the victim has made prior
accusations that were false, unless the probative value of
the evidence which the defendant seeks to elicit on the
cross-examination (including the probability that false
accusations were in fact made) is substantially outweighed by
the risk of prejudice, confusion, embarrassment or
Id. at 129-30.
now to the evidence presented at the pretrial hearing that
formed the basis of the trial court's decision to
preclude defendant from questioning F about prior alleged
false accusations of sexual abuse. In March 2012, F's
mother reported to the Washington State Department of Social
Services that F had alleged sex abuse. Defendant sought to
introduce as exhibits the two resulting intake [298 Or.App.
716] reports, which described what F's mother said to the
intake worker about the accusations. The first narrative
included the following:
"[F] has reported to mother * * * and stepfather * * *
that different males of all ages have had sex with her. [F]
casually denies it immediately afterwards. Mother has tried
to explain to [F] that these are very serious accusations but
[F] thinks it is funny.
"[F] told mother that stepfather sneaks into her bedroom
and has sex with her. Mother asked [F] if she just told the
truth and [F] said 'no.'
"[F] previously accused her brothers *** of having sex
with her. She also accused * * * her father of having sex
with her. A short time later [F] denied these allegations
were true. “* * * * *
"Mother said these sexual abuse allegations are false
but she does not know what to do. Mother is afraid that if
[F] gets sexually abused in the future no one will believe it
because of her history of telling lies."
following came from the second report:
"Mother asked [F] if she knew what sex is. [F] said