State v. Shearer , 101 Or. App. 543 ( 1990 )

DEITS, J.

Defendant appeals his convictions in a jury trial on two counts of sodomy in the first degree, ORS 163.405, and one count of sexual abuse in the first degree. ORS 163.425. He argues that the trial court erred when it excluded evidence of an inconsistent statement, allegedly made by the mother of the victim, regarding her opinion of the victim’s truthfulness. He also contends that the trial court abused its discretion when, under OEC 403, it allowed the state to impeach defendant’s expert by showing that, in another criminal case involving a different defendant, he testified that the defendant did not fit the profile of a sex abuser but that the defendant in that case later admitted to the acts at sentencing. We affirm.

At the time of trial, in May, 1988, the victim was 12. He testified that defendant, who is the victim’s older stepbrother, had made him submit to oral and anal copulation from the time when the victim was three. When the victim was four, he told his mother about his stepbrother’s behavior but no action was taken. When he was 11, he again complained to his mother that defendant was abusing him and that resulted in the criminal charges being brought.

The state called the victim’s mother as a witness. On cross-examination by defendant’s counsel, she testified:

“Q [BY DEFENDANT’S COUNSEL]: You never made the statement to [Officer Frank of the Oregon State Police] that you weren’t sure [the victim] was telling the truth?

“A Not to him.

“Q Who did you make that statement to?

“A Marion Ford.

“Q With regard to Marion Ford, didn’t you have a conversation with her on — wasn’t your statement to her a little bit stronger than that?

“A Yes.

“Q What did you say to Marion Ford?

“[BY PROSECUTOR]: Objection. Hearsay.

“[THE COURT]: Sustained.”

Counsel made further attempts to elicit from the victim’s mother that she had told Marion Ford that the victim was a “pathological liar.” The state objected, and the trial court sustained the objections.¹ Defense counsel then asked the victim’s mother:

“Q [BY DEFENSE COUNSEL]: What are your thoughts about [the victim’s] truthfulness and veracity?

“A I believe he is telling the truth.

“Q You have never said to the contrary?

“[BY PROSECUTOR]: Objection. Irrelevant.

“[THE COURT]: Sustained.”

In its case-in-chief, defendant called Ford as a witness to ask her if the victim’s mother had called the victim a “pathological liar.” The state objected to Ford’s testimony on the grounds that it was irrelevant and that defense counsel had not laid the proper foundation under OEC 613(2). The trial court sustained the state’s objection, and defendant assigns that ruling as error.

Defendant contends that the court erred in refusing to permit him to impeach the victim’s mother with her prior inconsistent statements about the victim’s truthfulness.² Defendant argues that Ford would have testified that the mother had told her that the victim was a pathological liar, and that the statement to Ford is inconsistent with the mother’s opinion that the victim was telling the truth. He contends that, under OEC 613(2), he was entitled to examine Ford concerning the alleged inconsistency.

OEC 613(2) states, in pertinent part, that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same * * The rule requires that there be a material variance between the prior inconsistent statement and the testimony of the witness at trial. Rigelman v. Gilligan, 265 Or 109, 121, 506 P2d 710 (1973).

The mother testified that, although she presently believed that the victim was telling the truth, she had, at an earlier time, expressed a belief to Ford that he was untruthful. Although she was not allowed to testify that she had described /the victim as a “pathological liar,” she acknowledged that she previously had expressed the view that the victim was untruthful. Accordingly, there was not a material variance between the testimony defendant sought to offer through Ford and the testimony that was received from the mother. Moreover, the trial judge is given a “fair range of discretion” in deciding whether a prior statement is inconsistent with testimony given at trial. Rigelman v. Gilligan, supra, 265 Or at 121. The trial court did not abuse that discretion here.

Defendant’s second assignment of error is that the trial court erred when it allowed the state to impeach defendant’s expert witness, a clinical psychologist, by showing that, in another sex abuse case involving a different defendant, he gave an opinion that the defendant did not fit the psychological profile of a sex abuser, when, in fact, that defendant later admitted the acts.³ The expert similarly testified that defendant here did not match the profile of a pedophile and did not have any serious sexual disorders.

Defendant argues that the trial court abused its discretion under OEC 403, because the prejudicial impact of the evidence substantially outweighs any probative value the evidence may have. OEC 403 provides:

“Although relevant, evidence may he excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”

We have used three factors in determining whether the prejudicial impact of evidence outweighs its probative value: (1) the need for the evidence; (2) its persuasiveness; and (3) its inflammatory effect on the jury. State v. Pigg, 87 Or App 625 627-28, 743 P2d 770 (1987).

Defendant relied heavily on the expert’s opinion that he was not a sex abuser. That opinion, if unattacked, is highly persuasive. To that extent, then, there was a need for the state to present evidence to show that his opinion should not be given much weight. Because the jury had to weigh the expert’s opinion in deciding whether defendant committed the crimes, the cross-examination of defendant’s expert was probative of how much weight to give that opinion. Defendant claims that the evidence was unnecessary, because the expert had already admitted that his opinion was fallible. However, we are not persuaded that that should preclude the state from attacking the reliability of the expert’s opinion.

Finally, defendant argues that the cross-examination was too prejudicial, because it suggested that every time an expert concludes that a person is not likely to be a sex abuser, the person inevitably is. We do not believe that the evidence unduly suggested that defendant was guilty simply because the other accused was found guilty. We hold that the trial court did not abuse its discretion in concluding that the probative value of the state’s evidence was not substantially outweighed by its prejudicial effect.

Affirmed.

1 Defendant does not assign as error the trial court’s limitation of his cross-examination.

2 The trial court reasoned that Ford’s testimony was excludable, because it concerned a collateral matter. Defendant has argued to the contrary on appeal. We do not need to address that issue, however, because we affirm the trial court on another ground.

3 The state called the court reporter to read the transcript of the proceedings at sentencing, specifically the part where the defendant had admitted to committing the acts for which he was convicted. Defendant argues on appeal that the testimony is “classic hearsay.” That objection, however, was not made to the trial court and, accordingly, we will not address it for the first time on appeal. See State v. Taylor, 54 Or App 428, 431, 634 P2d 1381 (1981).