State Of Or. v. Lupoli

CourtSupreme Court of Oregon
Citation234 P.3d 117,348 Or. 346
Docket NumberCA A132083,A132084,C053594CR,SC S056477).,(CC C052106CR
PartiesSTATE of Oregon, Respondent on Review,v.Tyler James LUPOLI, Petitioner on Review.
Decision Date04 June 2010

348 Or. 346
234 P.3d 117

STATE of Oregon, Respondent on Review,
Tyler James LUPOLI, Petitioner on Review.

(CC C052106CR, C053594CR; CA A132083, A132084; SC S056477).

Supreme Court of Oregon,
En Banc.

Argued and Submitted Sept. 14, 2009.
Decided June 4, 2010.

234 P.3d 117
On review from the Court of Appeals.*
Robert Rosenthal, New York, argued the cause and filed the brief for petitioner on
234 P.3d 118
review. With him on the brief were Edward H. Talmadge and Tracy M. McGovern of Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C., Medford.

Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.


This criminal case presents two issues. The first is whether certain expert witnesses at trial improperly “vouched” for the veracity of children who allegedly had been victims of sexual abuse. 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. The second issue is whether the trial court erred in denying defendant's motion for judgment of acquittal on the charge involving one of the alleged victims. The Court of Appeals affirmed defendant's convictions without opinion. State v. Lupoli, 219 Or.App. 665, 185 P.3d 571 (2008). For the reasons that follow, we reverse the decision of the Court of Appeals and the judgment of the circuit court, and we remand the case to the circuit court.

The following facts are undisputed. At the time of the events that led to the charges against him, defendant was 19 years old and had been working at a fitness club in Hillsboro, Oregon, for about two months, selling club memberships. By his own admission, defendant did not enjoy sales and was not a very good salesman. He took frequent breaks from his sales calls to wander around the club, doing things that were not part of his job, including, among other things, chatting with other employees. One of the people defendant often visited was a woman who worked in the club's daycare facility, which was called the Kids Club.1

The Kids Club was a room with an open entryway, windows from the interior of the club through which parents could see their children, and a surveillance video camera that recorded what went on in the room. The fitness club maintained certain employee-child ratios in the Kids Club at all times. For children over 18 months old, the required ratio was one trained employee per ten children. For children under 18 months of age, the ratio was one to three. Other club personnel who were merely visiting the Kids Club, as defendant often did, did not count toward those ratios. As a result, there were always several club employees in the room whose job it was to watch over the children, and other club employees frequently were present as well.

Based on accusations of misconduct in the Kids Club alleged to have occurred over a several-week period, defendant was charged with sexually abusing, or attempting to sexually abuse, six children. This case involves charges respecting four of the victims.2 The first victim, SM, an eight-year-old, had told her mother in July 2005 that she did not want to go to the daycare facilities at the fitness club. Nonetheless, her mother dropped her off and went to work out. The mother checked in on her about a half an hour later, and SM was watching television. The mother continued to work out for another 20 minutes and then picked the child up. SM did not immediately tell her mother about anything that had happened during her time in the Kids Club, nor had she complained to anyone working there. As they were leaving, however, SM told her mother that she did not want to come back to the Kids Club because she did not like it there. According to the mother, SM pointed at defendant and stated that he had said “weird stuff” to her. When questioned, SM elaborated that defendant had asked her what her underwear looked like. SM and her mother then reported the incident to the club's management.

234 P.3d 119
In those initial conversations, SM did not state that defendant had touched her. However, while in the car on the way home and in response to further questioning by her mother, SM told her mother that defendant had touched her underpants. The mother called the police.

A police officer, Mastrisciano, came to the child's home later that evening. On questioning, SM recounted her conversation with defendant and, eventually, told the officer that defendant had pulled at her underwear and touched her. As a result, SM was sent for an examination at CARES Northwest, a clinic that evaluates children who may have been sexually abused. A nurse, Avila, conducted a physical examination, which did not reveal physical evidence of sexual abuse. Avila then diagnosed SM with “sexual abuse” based on SM's allegations, and referred SM to a CARES social worker, Findlay, for further questioning. SM told Findlay that defendant had asked to see her underwear and had touched her twice.

Thereafter, Mastrisciano obtained copies of the Kids Club surveillance videotapes for the month and a half before the incident that SM described. In all of the videotapes, other adults were in the room when defendant was there. None of the surveillance videotapes, including the one from the day on which SM claimed that defendant had touched her, showed defendant touching a child or looking at a child's underwear.3 Nonetheless, Mastrisciano identified as potential victims all girls with whom defendant had had direct, one-to-one personal interaction. Mastrisciano then began contacting the parents of those children.

As relevant here, about two weeks after SM's initial complaint, Mastrisciano contacted the parents of three-year-old W. Mastrisciano informed them of his investigation and told them that their daughter could possibly have been the victim of some inappropriate conduct by defendant at the Kids Club. W's mother reported to Mastrisciano that, some time previously, W had told her that a “boy” at the Kids Club had tried to lift up her skirt, but W's mother had believed that the “boy” was another child at the daycare facility. When the accusations against defendant came to light, both Mastrisciano and W's mother assumed that, in fact, W had been referring to defendant. Mastrisciano, on being told about W's story, assumed Lupoli was the “boy.” He conducted no investigation into whether W could have been talking about another child; he neither asked W about it nor viewed any of the surveillance tapes to confirm her report. W was taken to a social worker and “play therapist,” Moussa, for evaluation. W eventually confirmed to Moussa, in response to Moussa's direct question, that defendant had lifted her skirt and touched her in the vaginal area.

Mastrisciano next contacted the parents of a five-year-old victim, SO, and told them what SM claimed had happened to her at the Kids Club.4 In response, SO's father told Mastrisciano that, about a month earlier, he had taken SO to the Kids Club and, when he later picked her up, she complained that a “big boy” had wanted to “play, play, play,” and that she did not want to play with him. Later that evening, when SO's mother came home from work, SO told her the same thing. In response to her mother's questioning, SO told her mother that the boy had asked to see her underwear and had asked to see her vagina, and that she had lifted her dress and pulled her underpants aside to expose her vaginal area.5 SO then went through the same CARES process that SM had been through: She underwent a physical examination, which did not reveal physical evidence

234 P.3d 120
of sexual abuse. The examining physician, Heskett, diagnosed SO with “sexual abuse.” Social worker Findlay then questioned SO further. When talking to Findlay, SO stated that defendant had touched her near her vagina.

Finally, as relevant here, Mastrisciano contacted the parents of three-year-old T. T's mother met Mastrisciano at the police station. Mastrisciano explained the allegations that, by then, had been made against defendant and showed T's mother a surveillance videotape of her daughter with defendant. Subsequently, T also was interviewed by Findlay at CARES. T never indicated to the police, her parents, Findlay, or anyone else that defendant had ever touched her or tried to look at her underwear. A videotape from Kids Club showed defendant in close physical proximity to T on one occasion.

Defendant was charged with two counts each of first-degree sexual abuse with respect to SM and SO, one count of first-degree sexual abuse with respect to W, and one count of attempted first-degree sexual abuse with respect to T.

At defendant's trial, the state presented, among other things, the testimony of the health care professionals who evaluated SM, SO, and W. 6 Those health care professionals testified that, in their respective opinions, the children whom they evaluated had been sexually abused. Avila, for example, testified that she diagnosed eight-year-old SM as having been sexually abused because:

• “Her disclosures * * * were very clear and spontaneous. They were appropriate for the age that she was. They didn't sound rehearsed, they sounded like things she just said.”

• “She was consistent. She had said the same type of thing before to her parents, I guess.”

• “[H]er physical exam was consistent with what she said happened. There weren't any signs, but you wouldn't expect there to be. * * * [S]he was touched and-with a hand, and touching doesn't leave any marks.”
• “[T]he manner in which [SM] told her story was pretty compelling. She just had a real clear change in her demeanor.”
• “[J]ust the way she told her

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