State v. Houston ( 2022 )

583
Argued and submitted February 4, 2021, reversed and remanded May 18, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID SCOTT HOUSTON,
Defendant-Appellant.
Washington County Circuit Court
18CR59741; A172126
511 P3d 51
In this criminal case, defendant appeals a judgment convicting him of two
counts of sexual abuse in the first degree, ORS 163.427. Defendant contends that
the trial court erred in excluding testimony of his expert witness about the rela-
tionship between CARES Northwest and law enforcement. Held: The trial court
erred in excluding the testimony, because information about the bias or inter-
est of CARES was relevant to the jury’s evaluation of E’s statements during the
CARES interview. Because the CARES interviewer did not fully admit the facts
related to the bias or interest of CARES on cross-examination, defendant was
entitled to present those facts through extrinsic evidence. The evidence could not
be excluded under OEC 403. The error was not harmless.
Reversed and remanded.
Andrew Erwin, Judge.
Adam L. Dean argued the cause and filed the brief for
appellant.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
JAMES, P. J.
Reversed and remanded.
584 State v. Houston
JAMES, P. J.
In this criminal case, defendant appeals a judgment
convicting him of two counts of sexual abuse in the first
degree, ORS 163.427, raising seven assignments of error. We
reject defendant’s fifth, sixth, and seventh assignments of
error without discussion, writing only to address his fourth
assignment of error, wherein defendant contends that the
trial court erred in excluding testimony of his expert witness
about the relationship between CARES Northwest and law
enforcement. As explained below, we agree with defendant
that the court erred and that the error was not harmless.
Accordingly, we reverse and remand. In light of our disposi-
tion on that assignment, we do not address defendant’s first,
second, and third assignments of error, which concern other
evidentiary rulings of the trial court, because they may not
arise in the same way on remand.
The following facts are undisputed. Defendant was
charged with two counts of first-degree sexual abuse of E,
the six-year-old daughter of his girlfriend. E’s parents were
involved in a custody dispute starting approximately one
year before the charges were filed and continuing through-
out the events of the case, including trial. Before the events
described below, E lived with her mother and defendant. E’s
father visited with her every other weekend at his mother’s
house, under his mother’s supervision.
When E was initially interviewed by an employee
of the Department of Human Services (DHS) and a police
officer, she denied that any abuse had happened. At that
time, DHS removed her from her mother’s care and placed
her with her father. Approximately one week later, E was
interviewed at CARES Northwest and, during the course
of that interview, made statements indicating that several
acts of abuse had occurred.
At trial, E testified. She indicated that, if there
were discrepancies between her two accounts, her initial
answers—those given in the DHS interview—were the
truth. It also appears that she may have answered the ques-
tion “did you tell them the truth when you were [at CARES]?”
Cite as 319 Or App 583 (2022) 585
affirmatively.1 The record does not reflect that she answered
any questions about the alleged acts of abuse.
The state presented testimony from a variety of
witnesses, including the CARES interviewer, Echeverria.
Echeverria testified that she had participated in approxi-
mately 4,300 child interviews. She explained that CARES is
“a collaboration of all the major * * * hospital systems in the
Portland area. And whenever there are concerns of possible
abuse to a child and also sometimes when * * * somebody
needs a second opinion medical—curious finding—they may
send them to us.” She explained that “community partners,”
including DHS and law enforcement, can listen to medi-
cal exams through earphones and can watch interviews
through a one-way mirror or cameras. During the interview,
an interviewer takes a break to “check in with the medical
provider” who has previously examined the child.
On cross-examination, defense counsel began by ask-
ing Echeverria about the multidisciplinary team: “Explain
to the jury what the multi-disciplinary team means. What
is a multi-disciplinary team?” She responded, “So it’s a lot of
different entities that might be involved in a child’s life. So
it generally involves Department of Human Services Child
Welfare, law enforcement, education. I don’t often go to those
meetings, though.” She added that she thought it involved
medical providers from CARES and maybe other medical
representatives. Counsel asked whether the district attor-
ney is part of the multidisciplinary team, and she responded
that she wasn’t sure. Counsel also asked about the Child
Abuse Multidisciplinary Intervention Fund. Echeverria
acknowledged that there was a fund and that she thought
it was connected to law enforcement, but explained, “I don’t
really know a lot of the * * * workings of that.”
Defense counsel also questioned Echeverria about
why CARES interviews are recorded. Echeverria explained
that they were recorded
1
From later discussion in the transcript, it appears that E may have nodded
her head in response to that question, but the transcript reflects that the answer
was “hm?” Counsel answered E’s answer with “Yeah?” and then proceeded to the
next question.
586 State v. Houston
“[s]o it’s just very clear that I don’t make mistakes, that
I’m not remembering or I’ve got a note that’s too short and
I thought I asked the child this way and, actually, I asked
them this way and maybe I missed something in the child’s
response. It’s a good way to double check ourselves and to
make sure it’s exactly what happened in that interview
room.”
In response to further questioning, she explained that
the CARES interview has multiple audiences: It is used
for CARES’s own evaluation and memory of the child, the
child’s therapy, and law enforcement purposes.
At CARES, E was accompanied by her father and
her paternal grandmother. E’s mother did not attend, and
Echeverria did not obtain any information from E’s mother
before or after the interview. She explained that CARES’s
role is not to do an investigation; instead, that is the role of
“DHS, law enforcement, [the child’s] therapist. I mean, there
are other people who are involved in looking at what’s going
on with a child.”
During defendant’s case, he presented expert tes-
timony from Dr. Kirk Johnson, a psychologist. Johnson
reviewed a transcript of E’s CARES interview. During his
testimony, he opined, “I think that * * * the fundamental
failing with the interview was * * * lack of consideration of
alternative hypotheses [to explain the child’s statements].”
Immediately after expressing that opinion, Johnson
said, “The general problem is that CARES Northwest is an
adjunctive police inter—,” at which point the court inter-
jected a question. After the court’s question was resolved,
defense counsel returned to Johnson’s previous point:
“And then you were explaining the CARES Northwest
being an adjunct to and I think that’s when the Judge—
“[JOHNSON:] Oh, it’s essentially in that adjunctive
police interview. The purpose is to take the case to prose-
cution. And there are—
“[PROSECUTOR:] I’m going to object—can I ask a
question in aid of objection?”
Cite as 319 Or App 583 (2022) 587
The following exchange took place:
“[PROSECUTOR:] What you just said there, CARES
is an adjunct of the police interview, and the purpose is for
prosecution. Is that your opinion or is that something you’ve
read in the CARES—in the multi-disciplinary team?
“[JOHNSON:] It’s in the multi-disciplinary team. The—
unless they’ve changed it from the 2014 guidelines.”
Then the prosecutor asked Johnson to get out the
document and show him, and Johnson agreed. During that
exchange, the court excused the jury, and the parties contin-
ued their discussion in the jury’s absence.
Johnson explained that his statement was based on
the child abuse multidisciplinary team, which the prosecu-
tor and CARES are both part of, and, in response to the
prosecutor’s question, confirmed that the document was from
Washington County.2 Johnson and the court also discussed
an appellate case in which the court discussed the fact that
the CARES process is, as Johnson explained it, “associated
[with] and a part of the prosecutor’s office.” See State v.
S. P., 346 Or 592, 618-19, 215 P3d 847 (2009) (“[The record
supports] the Court of Appeals’ finding that law enforce-
ment involvement in CARES is pervasive, and that CARES
evaluations serve a forensic purpose in addition to any diag-
nostic purpose. CARES receives nearly half of its funding
from an account that is administered by the Department
of Justice. It partners with local police and the district
attorney’s office. Its members are trained in interview and
investigatory techniques that are, among other things,
‘legally sound.’ ORS 418.747(2) suggests that CARES’ pro-
tocol for interviewing child abuse victims was developed
by ‘teams,’ i.e., the local [multidisciplinary team] in which
CARES is a partner. In other words, that statute pro-
vides an opportunity for the district attorney’s office and
the police to participate in the development of the protocol
that CARES uses to interview the victims of child abuse.
Indeed, the district attorney’s office reports the results of
cases to CARES for the express purpose of enabling CARES
2
Neither Johnson nor the prosecutor ever clarified what the name of the
document at issue was, but it was clear that it contained guidelines or protocols
for multidisciplinary team investigations in Washington County.
588 State v. Houston
to ‘adjust’ its process of evaluating child victims, in order
to ‘strengthen the prosecution’s cases concerning child
abuse.’ ”).
After reading the document on which Johnson was
basing his testimony, the prosecutor pointed out that the
document “just is * * * talking about generally the multi-
disciplinary team” and its role in prosecutions. The pros-
ecutor questioned Johnson about who is part of the multi-
disciplinary team, and Johnson indicated that CARES, law
enforcement, the district attorney’s office, DHS, and school
teachers were all part of the team. Johnson explained that
“they’re all an integrated part of that process towards * * *
prosecution.” He continued,
“part of the issue here for me, when I’ve watched these
CARES tapes, and I would dispute my own conclusion the
first time I see someone not representing the state involved
on the other side of that one way window. I have never seen
an interview where [there] was either a defense attorney or
somebody representing the other side observing CARES,
as opposed to what exists now, which is you have the police
detective typically and the DHS worker typically giving
specific instructions to the interviewer about what to ask
that person next.”
After further clarifying Johnson’s testimony, the
prosecutor made his objection to the testimony: “Judge, I’m
objecting based on him referring to an outdated document
and also—well, I guess, I will base it on that. I think he’s
mischaracterizing what that says, but I can certainly cross-
examine him on that.”
At that point, apparently unhappy with the prose-
cutor’s chosen objection, the court raised, and, ultimately,
sustained, its own objection to the witness’s testimony. The
court characterized Johnson’s proposed testimony that
CARES is an adjunct of law enforcement as being a label
that was not probative on the subject on which the court
understood Johnson to be testifying, namely, the mechanics
of the CARES interview of E. The court explained, “[t]here’s
very little probative value within that value judgment call
except to state an opinion that this is a police thing, which
has almost nothing to do with the validity of the mechanics
Cite as 319 Or App 583 (2022) 589
of what has occurred here, and that’s what he’s testifying
to.”
After the court reiterated its view that Johnson’s
testimony properly addressed the mechanics of the inter-
view, not the function of CARES as part of the multidisci-
plinary team, defense counsel tried to explain his view:
“[DEFENSE COUNSEL]: Fair enough, Judge. I guess,
again, the issue from my perspective, Judge, is that this
was part of the [multidisciplinary team (MDT)] process,
and I think he could certainly—
“THE COURT: Right. And my first answer to that is,
so what? Those are just labels. The fact that they’re part
of an MDT process or part of this or that does not help us
evaluate were there sound techniques * * *.
“Just because there was an investigation does not in and
of itself give us any actual probative value it just simply
says what’s the context in which people got involved in this.
“He’s evaluating what actually—
“* * * * *
“THE COURT: —was done. Not what we called it or
not who was there, and that sort of thing, but how was it
done in this context and how did it impact the individuals
that [she] evaluated?
“[DEFENSE COUNSEL]: Well, and judge, the only
comment—further comment I would make is I think that
was the point of Dr. Johnson was to say, ‘Well, it does mat-
ter,’ because ultimately it is a one-sided process. We have
the MDT process where there is a detective. There is DHS.
But—and so ultimately, at this point they have a prosecu-
tion focus, and so—
“THE COURT: Yes. That—you want to indict the
CARES model, that’s an entirely different trial. We are not
going to put CARES on trial in this case. You can—you can
put the specific mechanics of what occurred in this case,
fine. But the entire CARES model, no, I’m not going to go
there with you.”
In keeping with the court’s ruling, the rest of
Johnson’s testimony focused on the specifics of the interview
of E, not the prosecution focus of CARES.
590 State v. Houston
In closing argument, the prosecutor argued that
the CARES interview was conducted fairly and soundly,
and that the jury should not be persuaded by Johnson’s crit-
icisms of it. He explained that Echeverria was a very experi-
enced interviewer and “they have that specific sort of frame-
work that they use.” He argued that Johnson’s criticisms
were unimportant, in part, because “that’s what he’s here to
do, is to kind of tell you he doesn’t like the way CARES did
it in this particular case.” In rebuttal, the prosecutor again
focused on the fairness of the CARES process: “CARES is
set up to be the most comfortable place there is for kids to
come in, in an open environment, and through non-leading
questions, say, ‘Tell us. Tell us about your life.’ ”
In his fourth assignment of error, defendant argues
that the court erred in excluding Johnson’s testimony that
CARES is part of the multidisciplinary team and that, as
a result, it is “an integrated part of that process towards
* * * prosecution.” The record indicates that Johnson would
also have testified that, unlike law enforcement officers
and DHS employees, defense attorneys are not allowed to
observe the interviews and that “the police detective typ-
ically and the DHS worker typically [are] giving specific
instructions to the interviewer about what to ask that per-
son next.” Overall, the record demonstrates that Johnson’s
testimony would have allowed an inference that the results
of CARES interviews are less reliable than they otherwise
would be because the process is one sided: Because the pur-
pose of CARES is to assist in prosecuting cases, the pro-
cess is biased in favor of producing evidence for prosecution
rather than fully investigating and assessing alternative
hypotheses that would yield a more complete picture of the
situation but would be less persuasive evidence to present in
court.
We reject without detailed discussion the state’s
contention that defendant failed to preserve his argument
because he did not make an offer of proof. As demonstrated
by our discussion of the record, above, “the nature of the
sought-after testimony was apparent from” the questioning
of both defendant and the prosecutor and from defendant’s
argument, and, consequently, defendant was not required to
Cite as 319 Or App 583 (2022) 591
make an offer of proof. State v. Hernandez, 269 Or App 327,
330, 344 P3d 538 (2015); see also, e.g., State v. Strickland,
265 Or App 460, 462, 335 P3d 867, rev den, 356 Or 517 (2014)
(“In the absence of an offer of proof, a challenge may still
be preserved if the questions asked and the arguments pre-
sented to the court on the issue were adequate to inform
the trial court of the substance of the evidence and its error
in excluding it.” (Internal quotation marks omitted.)); OEC
103(1)(b) (to establish that a trial court’s exclusion of evi-
dence constitutes reversible error, a party must show that
“the substance of the evidence was made known to the court
by offer or was apparent from the context within which
questions were asked”).
We are not called on here to address the appro-
priateness of the court’s interjection of its own objection to
Johnson’s testimony after the prosecutor decided not to raise
a broad objection to it. As explained below, the court erred in
excluding the testimony, because information about the bias
or interest of CARES was relevant to the jury’s evaluation of
the truth of E’s statements during the CARES interview.
At the outset, we readily conclude that Johnson’s
testimony that CARES is part of a multidisciplinary team
whose purpose is to prosecute cases, as well as his explana-
tion that police and DHS tell the interviewer what to ask,
was relevant. Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” OEC 401. E’s state-
ments in the CARES interview were admitted to prove that
defendant abused E. Given that, and particularly in light
of the way the state characterized CARES, testimony that
interviews at CARES have a prosecution focus—including
both information about concrete ways that the prosecution
focus affected the mechanics of the interview in question
and information that would allow the jury to infer that the
prosecution focus shaped the process as a whole and, thus,
its result—shed light on the reliability and completeness of
E’s statements and, thus, tended to make the existence of
the abuse more or less probable. See State v. Prange, 247 Or
App 254, 261, 268 P3d 749 (2011) (noting that impeachment
592 State v. Houston
evidence for bias or interest is relevant whenever, from the
evidence sought to be introduced, the bias or interest “is a mat-
ter of reasonable inference rather than mere speculation”).
Although CARES itself—an organization—cannot
be a witness, in a case like this one, where the state implies
that CARES provides a neutral environment and presents
statements made in a CARES interview to prove abuse, the
credibility of CARES and its processes plays a major role in
the case. The credibility of the interviewer, who does testify,
is intertwined with the soundness of CARES’s procedures
and practices, which the interviewer is tasked with imple-
menting. Thus, the jury hears evidence about what CARES
is and how its standardized examination and interview
processes work, and then the jury watches the product of
those processes—the interview—on video. In most cases,
including this one, the state’s evidence conveys to the jury
that the CARES video is a complete, unled account of what
happened. In this case, the prosecutor made that inference
explicit in closing argument: “CARES is set up to be the
most comfortable place there is for kids to come in, in an
open environment, and through non-leading questions, say,
‘Tell us. Tell us about your life.’ ”
Given the dynamic described above, information
about the purpose and interest of the organization itself,
rather than simply that of the interviewer, is relevant to
the jury’s evaluation of the statements made in the CARES
interview. See State v. Valle, 255 Or App 805, 809, 298 P3d
1237 (2013) (“As the Supreme Court has observed, it is
‘always permissible’ to show the bias or interest of a wit-
ness because such evidence goes to the witness’s credibility.”
(Quoting State v. Hubbard, 297 Or 789, 796, 688 P2d 1311(1984).)). That information is necessary to vindicate the right
of “a defendant in a criminal case * * * under both the state
and federal constitutions, to confront witnesses, a right that
includes the right to question a witness about circumstances
from which a jury could reasonably infer that the witness
has a motive to testify in a certain manner.” Id. at 810.
Thus, here, defendant was entitled, at least, to make
an initial showing of any bias or interest of CARES. “Only
after a party has made such a showing does a trial court
Cite as 319 Or App 583 (2022) 593
have the discretion to exclude additional evidence of bias or
interest on the ground, for example, that it is cumulative.”
Id.OEC 609-1 provides the procedure for demonstrat-
ing bias or interest. The first subsection of that rule estab-
lishes the general rule that “[t]he credibility of a witness
may be attacked by evidence that the witness engaged in
conduct or made statements showing bias or interest.” OEC
609-1(1). The second subsection provides, as follows:
“If a witness fully admits the facts claimed to show the
bias or interest of the witness, additional evidence of that
bias or interest shall not be admitted. If the witness denies
or does not fully admit the facts claimed to show bias or
interest, the party attacking the credibility of the witness
may then offer evidence to prove those facts.”
OEC 609-1(2).
Here, as set out above, defense counsel cross-
examined Echeverria about the multidisciplinary team,
and she denied knowing who was on the team or how it was
funded. Defendant was thus entitled to demonstrate the
existence, purpose, and operation of the multidisciplinary
team through extrinsic evidence.
The state contends that, regardless of whether
Johnson’s additional testimony would have been relevant
and otherwise admissible, we should conclude that the
trial court excluded it after conducting balancing under
OEC 403, and that the court did not abuse its discretion
in doing so. OEC 403 (“Although relevant, evidence may be
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 need
not consider whether the court undertook OEC 403 balanc-
ing, however, because, in light of the state’s characterization
of CARES, defendant was, at a minimum, entitled to make
an initial showing of the prosecution focus of the CARES
process by eliciting testimony that CARES was part of the
multidisciplinary team, that the purpose of the multidis-
ciplinary team is to prosecute child abuse cases, and that
594 State v. Houston
the law enforcement and DHS representatives who observe
interviews are able to instruct the interviewers on what to
ask next.
The state also contends that any error in exclud-
ing the testimony was harmless. We disagree. In this case,
the CARES interview was critically important evidence for
the state; E’s statements in the interview were by far the
strongest evidence that the abuse had occurred. The jury
heard from Echeverria that CARES was “a collaboration of
all the major * * * hospital systems in the Portland area.”
She explained that, during interviews, CARES interviewers
take breaks to “check in with the medical provider” who has
previously examined the child. On cross-examination, she
resisted defense counsel’s contention that the recording was
made for law enforcement purposes, ultimately conceding
that that was one of the purposes, but implying that other
purposes were at least equally important. And, in closing
argument, the prosecutor focused on the unbiased nature of
the CARES process: “CARES is set up to be the most com-
fortable place there is for kids to come in, in an open envi-
ronment, and through non-leading questions, say, ‘Tell us.
Tell us about your life.’ ” Because of the trial court’s errone-
ous exclusion of Johnson’s testimony about the law enforce-
ment purpose of CARES, defendant lacked a full ability to
meet Echeverria’s testimony and the prosecutor’s argument
and, thus, to challenge the strongest evidence that he had
committed the crimes with which he had been charged. The
error was not harmless.
Reversed and remanded.