State v. Driver

• Decision Date: 03 March 2004
• Citation: 86 P.3d 53,192 Or. App. 395
• Parties: STATE of Oregon, Respondent, v. Paul Lee DRIVER, Appellant.
• Court: Oregon Court of Appeals

86 P.3d 53

192 Or. App. 395

STATE of Oregon, Respondent, v. Paul Lee DRIVER, Appellant.

002721; A114234.

Court of Appeals of Oregon.

Argued and Submitted March 25, 2003.

Decided March 3, 2004.

Lawrence Matasar, Portland, argued the cause and filed the brief for appellant.

Joanna Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and SCHUMAN and ORTEGA,¹ Judges.

ORTEGA, J.

Defendant appeals his three convictions for first-degree sexual abuse. He argues that the trial court erred in excluding evidence that the victim, a nine-year-old girl, recanted a previous allegation of sexual abuse against another man. After the victim denied on cross-examination that she had made or recanted the previous allegation, defendant attempted to introduce extrinsic evidence to rebut the denial. The trial court excluded that evidence on the ground that extrinsic evidence of prior false allegations of sexual abuse is inadmissible under both the Oregon Evidence Code, OEC 608(2), and the Confrontation Clause of the Oregon Constitution, as interpreted in State v. LeClair, 83 Or.App. 121, 730 P.2d 609 (1986), rev. den., 303 Or. 74, 734 P.2d 354 (1987). We affirm that result but apply a different analysis.

At trial, defendant denied any sexual contact with the victim (M) and sought to impeach her testimony with evidence concerning a prior false allegation of abuse that she had allegedly made to her six-year-old friend R when she was herself six years old. (M was nine years old at the time of trial; defendant's abuse began some time during the two years before trial.) Defendant's counsel asked M, in front of the jury, if she had accused R's uncle, Osborn, of touching her sexually, and if she had later recanted the allegation. M denied making (or recanting) the allegation.² The state did not object to that line of questioning. Defendant then sought to offer evidence from Osborn and Osborn's sister to rebut M's denial.³ Although it had failed to object to the original cross-examination of M on that issue, the state objected to the introduction of the proffered extrinsic evidence, arguing that it was barred by OEC 608(2). The state further argued that a constitutionally based exception to OEC 608(2) announced in LeClair did not render the evidence admissible because the evidence did not satisfy LeClair's three-part test. See83 Or.App. at 130,730 P.2d 609. Defendant responded that the LeClair test was satisfied and that the evidence therefore was admissible under the Confrontation Clause of Article I, section 11, of the Oregon Constitution. The trial court excluded the proffered testimony of Osborn and his sister after determining that it failed the LeClair test. Defendant was convicted of three counts of first-degree sexual abuse and was sentenced to three concurrent 75-month sentences.

Defendant now appeals his convictions. He argues that the trial court erred in excluding extrinsic evidence to rebut M's denial of the prior false allegation of sexual abuse. Defendant contends that such evidence is admissible under the Confrontation Clause of the Oregon Constitution, as interpreted in LeClair. The state responds that extrinsic evidence of prior bad acts is prohibited under OEC 608(2) and, to the extent such evidence is allowed under the Confrontation Clause, it was properly excluded here under the LeClair test. We agree with the state's conclusion, although not with its analysis. Whether the evidence failed the LeClair test is irrelevant; the constitutional exception announced in LeClair simply does not encompass extrinsic evidence, and the Confrontation Clause does not otherwise require admission of such evidence.

OEC 608(2)⁴ provides:

"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in ORS 40.355 [OEC 609], may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness."

In LeClair, we created an exception to OEC 608(2) based on the Confrontation Clause of the Oregon Constitution, Article I, section 11:⁵

"[R]egardless 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 delay."

LeClair, 83 Or.App. at 130, 730 P.2d 609 (emphasis added). Thus, in a sex abuse case, if LeClair's three-part test is met, the defendant may cross-examine the alleged victim regarding prior false allegations of abuse. However, contrary to the assumptions of both parties and the trial judge here, neither LeClair nor the Confrontation Clause extends that exception to extrinsic evidence.

In LeClair, we considered the admissibility of evidence of a rape victim's alleged prior false allegations of sexual abuse. The proffered evidence included both cross-examination of the victim and extrinsic evidence of the prior allegations. 83 Or.App. at 123-26, 730 P.2d 609. However, as the above quotation from LeClair suggests, the constitutional exception announced in LeClair referred only to cross-examination evidence.

Our cases following LeClair offer somewhat conflicting views on whether that decision might also provide for admission of extrinsic evidence. In State v. Gilliland, 136 Or.App. 580, 902 P.2d 616 (1995), we held that the trial court erred when it entered a pretrial order to admit cross-examination and extrinsic evidence of an alleged prior false allegation of rape without first determining whether the evidence met one of the LeClair categories:

"If the trial court intended to admit the evidence to impeach the complaining witness' credibility, the trial court was required to make the findings set out in our holding in LeClair and should have limited defendant's evidence to an inquiry addressed to the complaining witness on cross-examination."

Gilliland, 136 Or.App. at 586, 902 P.2d 616 (emphasis added).⁶

However, in State v. Hendricks, 101 Or.App. 469, 791 P.2d 139, rev. den., 310 Or. 133, 794 P.2d 795 (1990), we suggested that LeClair might also allow admission of extrinsic evidence in some circumstances. We held that the trial court properly excluded evidence of a prior false allegation because the defendant had failed to make the proper offer of proof under LeClair. Hendricks, 101 Or.App. at 472, 791 P.2d 139. The defendant's offer of proof had been based on extrinsic evidence, not cross-examination. Id. at 471, 791 P.2d 139. We said:

"Defendant's offer of proof did not include cross-examination of the victim. Even if his confrontation argument relates to the denial of an opportunity to cross-examine the victim, we are unable to review a contention that the court should have allowed defendant to cross-examine her. Moreover, there is no basis under the Confrontation Clause or State v. LeClair for admission of the [extrinsic evidence], independent of an effort by defendant to cross-examine the victim."

Id. at 472, 791 P.2d 139 (citation omitted; first emphasis in original; second emphasis added).

To the extent that Hendricks can be read to suggest that extrinsic evidence might be allowed under LeClair if the proper offer of proof is made, we disavow it. LeClair does not address extrinsic evidence; the exception to OEC 608(2) delineated in LeClair was limited to cross-examination of the victim-witness.⁷ That is because the Confrontation Clause, the source of our LeClair holding, does not provide a right to present extrinsic evidence of a prior false allegation of abuse.

That limitation is evident both in Oregon case law addressing Article I, section 11, of the Oregon Constitution and in corresponding federal case law analyzing the reach of a defendant's confrontation rights under the Sixth Amendment. In State v. Herrera, 286 Or. 349, 594 P.2d 823 (1979), the Oregon Supreme Court discussed defendants' confrontation rights solely in terms of cross-examination:

"The right of confrontation protects two vital interests of the defendant. First, it guarantees that the defendant has an opportunity to cross-examine the witness against him in order to test his sincerity, memory, ability to perceive and relate, and the factual basis of his statements. This purpose of confrontation helps to assure the accuracy of the result of the truth-determining process by giving the accused an opportunity to test the recollection and sift the conscience of a witness. * * *

"The second interest of the defendant which the right to confrontation protects is enabling the defendant to demonstrate to the jury the witness' demeanor when confronted by the defendant so that the credibility of the witness is displayed in the courtroom. This second purpose is no less important than the first."

286 Or. at 353-54, 594 P.2d 823 (citation omitted).

Interpretation of the Sixth Amendment Confrontation Clause by the United States Supreme Court is similarly limited to cross-examination rights.⁸ For example, in Davis v. Alaska, the Court held:

"`The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon

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