State v. Preuitt
State v. Preuitt
Opinion of the Court
After a jury trial, defendant was convicted of 12 counts of first-degree sexual abuse, ORS 163.427, two counts of first-degree sodomy, ORS 163.405, one count of second-degree sodomy, ORS 163.395, and two counts of attempted first-degree sodomy, ORS 161.405. He appeals the judgment of conviction, raising two assignments of error. In his first assignment of error, defendant challenges six of the convictions for first-degree sexual abuse and the two convictions for attempted first-degree sodomy. With respect to those convictions, defendant asserts that the trial court erred when it permitted testimony from a therapist regarding, among other things, the therapist’s opinion concerning whether the child complainant, K, was “suggestible” or was telling a “story that she had adopted from somewhere else.”
Defendant was charged with, among other things, sexually abusing his step-granddaughter, K. K had disclosed the abuse to her brother and, eventually, the family reported the abuse allegations to the police. K was evaluated at Kids First
At defendant’s trial, the state presented testimony from Richards regarding K. According to Richards, PTSD is a diagnosis arising from an individual’s experience of “a traumatic event or an extreme stressor.” Richards described the criteria for diagnosing PTSD and stated that she had arrived at that diagnosis for K based on
“her hyper-arousal, her sleep difficulties, her kind of avoiding thinking about [the sexual abuse], [her] intrusive thoughts [regarding the abuse]. She had lots of nightmares. ***[S]he had lots of trouble concentrating at school.
“* * * [T]he sleep problem, the nightmares, the avoiding of situations, the cues that *** triggered her kind of emotional flooding, I would say, where she would perceive that maybe [defendant] was around or she thought she heard his voice or saw a car that was like his and she would just become kind of overwhelmed with anxiety. Those are primarily the symptoms * *
During a session with Richards, K drew a picture that depicted defendant’s bedroom. As part of her testimony, Richards discussed K’s explanation of the picture, and the things that, to her, “stood out” about it:
“One is her description of the towel. And in my notes I also talk about that she, she describes her grandfather as being able to know when the white stuff would come out, and then he would grab the towel. And that’s the kind of detail that’s really hard for a kid to make up or know without—”
Richards also testified that she had no “concerns or red flags that the, the story that, the statement that [K told about the
On appeal, defendant contends that the trial court erred when it allowed Richards’s testimony “regarding her opinion of the ‘details’ of a picture drawn by [K], her opinion as to whether [K] told her story ‘from somewhere else,’ and her opinion as to whether [K] was ‘suggestible.’” As noted, defendant contends that those statements were inadmissible comments on K’s credibility.
With regard to Richards’s statement regarding the detail in K’s picture, the state asserts that defendant failed to preserve the asserted error. The state points out that the trial court actually sustained defendant’s objection to Richards’s explanation of the significance of the details included in the picture:
“[PROSECUTOR]: And as, as she was drawing that and explaining to you what she was drawing, what about that that picture stood out to you?
“[RICHARDS]: Um, well a couple of things. One is her description of the towel. And in my notes I also talk about that she, she describes her grandfather as being able to know when the white stuff would come out, and then he would grab the towel. And that’s the kind of detail that’s really hard for a kid to make up or know without—
“ [DEFENDANT]: Objection, Your Honor.
“THE COURT: Ask another question * * *.
“[PROSECUTOR]: So the, the detail she was providing to you stood out—
“ [DEFENDANT]: Objection, leading.
“THE COURT: Sustained.”
(Emphasis added.) According to the state, “[defendant could have, but did not seek to limit the jury’s consideration of Richards’ * * * statement. He did not move to strike, move for mistrial, or seek a curative instruction.” Furthermore, “[o]nly after completing his cross-examination did defendant
“[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983); see State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (“Once again, we repeat that a witness may not testify about the credibility of another witness.”); State v. Milbradt, 305 Or 621, 629, 756 P2d 620 (1988) (“The assessment of credibility is for the trier of fact * * *.”). “Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible.” State v. Lupoli, 348 Or 346, 357, 234 P3d 117 (2010); see Keller, 315 Or at 285 (doctor’s statement that there was “‘no evidence of leading or coaching or fantasizing’ during the child’s interview at C.A.R.E.S.” amounted “to testimony that the child was credible”).
In Lupoli, the Supreme Court considered whether “expert witnesses attrialimproperly‘vouched’fortheveracity of children who allegedly had been victims of sexual abuse.” 348 Or at 349. “The alleged vouching occurred when the experts testified generally about characteristics of truthful and untruthful children and then testified that statements of the children in question displayed the characteristics of truthful children and lacked characteristics indicative of suggestion, influence, or fantasy.” Id. A number of health
The court concluded that the testimony at issue constituted vouching and was, therefore, inadmissible. Although the court observed that “discrete portions” of the testimony might be admissible in some circumstances, those portions of the testimony were “inextricably bound up” with portions that constituted vouching. Id. at 362. Generally, observations of a child’s physical characteristics or demeanor or general descriptions of “the circumstances that can point to a child’s suggestibility or the possibility that the child has been coached” would not be impermissible vouching. Id. However, the court observed that, “[e]ven if there were parts of [the] testimony that might be admissible if offered in support of some other kind of diagnosis, or if offered to otherwise assist the jury,” none of the testimony could be “meaningfully separated from the context.” Id. Because there was no physical evidence of sexual abuse, the court concluded that each statement and description was an implicit declaration regarding why the experts had found the child complainants to be credible. Accordingly, the court concluded that the trial court should have excluded all of the testimony in question, including the testimony that
The court in Lupoli relied on its decision in Keller. In that case,
“the defendant had been convicted of sexually abusing a five-year-old child to whom defendant’s wife provided in-home daycare. The child had told her mother that the defendant, who had been left alone with the children for about five minutes before the child’s mother had arrived to pick her up, had, in those five minutes, touched her genital area. The child was examined by a doctor and received a CARES evaluation.”
Lupoli, 348 Or at 359. A doctor from CARES was called as a witness for the prosecution at the trial in the case and testified that, among other things in the child’s statements “[t]here was no evidence of leading or coaching or fantasizing” and the child was “obviously telling you about what happened to her body.” Keller, 315 Or at 278-79. The defendant asserted that those statements were impermissible comments on the child’s credibility. The court agreed, concluding that “[e]ach of those statements amounts to testimony that the child was credible.” Id. at 285. Because the doctor was “a trial witness * * * testif[ying] about the credibility of another trial witness, the child,” the court concluded that the admission of the testimony was error. Id.
Here, as noted, at issue are Richards’s statements that she had no “concerns or red flags” that K’s story about being abused was a “story that she had adopted from somewhere else” and that there was nothing about K that Richards observed that “made her seem particularly suggestible.” According to defendant, those statements, like those at issue in Lupoli, were comments on credibility; they “were Richards’ interpretations of [K’s] statements” and “implied that [Richards] believed what [K] had told her.” The state, on the other hand, contends that the statements “were admissible because they explained parts of the basis for Richards’ expert diagnosis.” As well, the state asserts that the statements were merely “information that was helpful to the jury in making its own decision regarding [K’s] credibility.”
That the testimony in question may have been offered, in part, to explain the PTSD diagnosis is of no moment. Although, as the court in Lupoli noted, an expert may ordinarily testify regarding the basis of an admissible diagnosis, 348 Or at 361, a comment on the credibility of a witness does not become admissible merely because it is offered as part of a discussion of a medical diagnosis. The law regarding witness comments on credibility is clear and well understood: the Supreme Court has stated on many occasions that one witness may not comment on the credibility of another witness. See, e.g., Lupoli, 348 Or at 357; Keller, 315 Or at 284-85; Milbradt, 305 Or at 629-30; Middleton, 294 Or at 438. Although Richards testified regarding the objective bases by which she determined that K was suffering from PTSD, the state could not offer her comments on K’s credibility as further support for that diagnosis.
In Camarena, we concluded that certain improperly admitted evidence was harmless where its “content was cumulative of other properly admitted evidence.” Id. at 590. In particular, among other things, in that case the defendant himself testified to the same facts that were contained in the inadmissible evidence.However, the circumstances presented here are not like those in Camarena. In particular, there was not other independent evidence that made Richards’s testimony merely cumulative. Here, as noted, the state elicited testimony from Richards that there was nothing about K that “made her seem particularly suggestible.” Defendant objected, asserting that the state’s questioning called for a comment on K’s credibility. However, the court overruled the objection and allowed the testimony. When cross-examining Richards, defendant did indeed bring up that testimony and attempted to address and challenge Richards’s conclusion. These circumstances are not the type from which we would conclude that, as a result of examining the witness regarding her prior testimony, defendant cannot
Second, the state asserts that the statements in question were harmless because, “considered in light of the other evidence presented at trial, it is unlikely that the challenged evidence affected the verdict” because Richards testified that she “had not made a credibility determination regarding [K’s] allegations.” We are not persuaded. Richards testified that she was not part of the investigation of sexual abuse and that she did not make “a forensic determination” of whether it happened. That testimony did not, however, negate or somehow neutralize her comments on K’s credibility. Whether or not it was Richards’s job to determine whether K’s allegations were true, her testimony indicated that she did, indeed, believe that K was truthful. In a case without physical evidence of abuse, where the credibility of the complainant was of paramount importance, we cannot conclude that the admission of improper vouching evidence was harmless beyond a reasonable doubt. Accordingly, we conclude that defendant’s convictions on the charges involving K—his convictions on Counts 13,14,15,16,17,18, 20, and 21—must be reversed and remanded for a new trial.
Convictions on Counts 13, 14, 15, 16, 17, 18, 20, and 21 reversed and remanded; remanded for resentencing; otherwise affirmed.
With respect to his first assignment of error, defendant challenges only “his convictions on counts 13, 14, 15, 16, 17, 18, 20, and 21, in which [K] was named as the alleged victim.” To the extent that defendant means to challenge his other convictions, he failed to raise such a challenge in his brief and we, therefore, will not consider it. See ORAP 5.45.
According to a witness at trial, Kids First is an “agency that interviews all children of sexual abuse” in the county where K lived at the time the abuse was reported.
Richards testified that, when a child comes to Kids First based on allegations of sexual abuse and it is determined that “something indeed has happened,” the child is referred to a therapist.
The state also suggests that the testimony in question did not amount to vouching because Richards, at other points in her testimony, explained that she is “not a ‘forensic’ therapist and, thus, was not tasked with determining whether the alleged abuse occurred.” Regardless of Richards’s role as a therapist, as we have explained, the statements at issue clearly conveyed that Richards found K to be believable. They were therefore impermissible comments on credibility.
Reference
- Full Case Name
- STATE OF OREGON, Plaintiff-Respondent v. KELLY N. PREUITT
- Cited By
- 8 cases
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- Published