State v. Middleton

Decision Date18 January 1983
Citation657 P.2d 1215,294 Or. 427
PartiesSTATE of Oregon, Respondent on Review, v. Lawrence E. MIDDLETON, Petitioner on Review. CA A21064; SC 28916.
CourtOregon Supreme Court

Stephen F. Peifer, Salem, argued the cause and filed the brief for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.



Defendant contends that his daughter's prior consistent statements of details of her rape and testimony by social workers stating that the daughter's reaction to the rape was typical of such a victim were improperly admitted in his jury trial for rape, and appeals his conviction. The Court of Appeals affirmed, 58 Or.App. 447, 648 P.2d 1296. We also affirm.

The 14 year-old child asserted that her father raped her in the early morning of December 23, 1980. She reported the rape to a friend's mother, to a Children's Services worker, and also to a doctor at the hospital. The following day a police officer recorded her statement at the police station. Within the same week she wrote out her statement before testifying before the grand jury. These reports were all consistent.

On February 6, 1981, in the presence of her mother, defense counsel's wife and another woman, the child wrote a statement saying she had lied about the rape. In that note she said that she had not been raped, but that she had lied so she could get "out on her own." She also said she was under a lot of pressure to stick to her original story. She wrote at least two other notes that said the same thing.

At the trial on April 4, 1981, the child, who was the first witness, testified that the defendant raped her. During cross-examination, defendant introduced statements the daughter wrote in February. Following this impeachment, the state offered to introduce evidence from four other witnesses that the daughter had reported the rape to them within two days of the alleged occurrence. The trial court allowed this evidence over objection. The witnesses testified not only that the daughter had told them the rape had occurred, but also two of these witnesses testified at length to details reported by the daughter. Thus, the jury heard a detailed account of the rape three times.

Later in the trial, both the state and the defense presented testimony from two social workers who worked with abused children. Both of them were accepted as expert witnesses without objection. In response to questions from the state, both testified over objection concerning the reactions of young victims of family sexual abuse, and one testified that the daughter's behavior was typical of most victims. Defendant objected on the basis that this testimony invaded the province of the jury and was opinion evidence.

The defendant denied the rape. He offered testimony suggesting that the daughter stole some money, skipped school, and ran away twice. He also strongly suggested she had been pressured by her older sister and by employees of Children's Services Division to testify falsely.


The court ruled that the testimony of one of the four state's witnesses referred to above was admissible both as a "res gestae" 1 exception to the hearsay rule and as a prior consistent statement; the testimony of the other witnesses was admissible only as prior consistent statements. The state Defendant relies on State v. Yielding, 238 Or. 419, 422, 395 P.2d 172 (1964), which holds that a witness may testify that another witness complained of rape but may give no particulars unless it fits into the "res gestae" exception. 2 This holding is not controlling in the present case because it ignores the prior inconsistent statements introduced by the defense. Here the state was attempting to rehabilitate a witness after her impeachment by prior inconsistent statements. Although prior consistent statements are generally inadmissible, there are exceptions. When a witness has been assailed on the ground that she has some motive for testifying falsely, prior consistent statements are admissible. 3 We approve the statement in State v. Clark, 26 Or.App. 55, 57, 551 P.2d 1313, rev. den. (1976):

does not assert the "res gestae" exception on appeal, so we do not consider it.

"Ordinarily a witness's out-of-court statements are not competent evidence to corroborate his in-court testimony. However, where the witness's credibility has been attacked on the ground that his testimony is a recent fabrication or that he had some motive for testifying falsely, evidence that he made consistent statements when the motive did not exist is admissible."

The defendant contended that the daughter invented the rape story so that she could live with her boyfriend and that she testified to it in court because of pressure from various people. The desire to move away from her home was a motive that could have been present before her initial report, so it would not support the admission of prior consistent statements. However, the pressure that the defendant contends various people exerted would be a motive for testifying falsely that did not exist at the time of the initial report, but arose sometime after the initial report. Thus consistent statements would be admissible to rebut it.

Indeed, defendant's trial counsel conceded that these prior consistent statements would have been admissible in rebuttal, but argued that the state should not have been allowed to present them in its case in chief. This ignores the fact that the defense itself had already introduced impeaching documents. By defendant's theory, if defendant had presented no other evidence, the state would have been completely foreclosed from rehabilitating the daughter. This is not the law.

We find that the daughter's out of court statements concerning the rape were admissible as prior consistent statements following her impeachment. 4


As described above, two social workers were witnesses in this case. The state called L. Bohlen, a juvenile counselor for the county, and the defense presented F. Lindemann, a child protective social worker for Children's Services Division. Both witnesses were accepted as experts without objection, and their expertise is not challenged now.

During Bohlen's testimony, defendant objected to a question concerning the typical response of a rape victim, apparently on the grounds that it would require a comment on the credibility of the victim. 5

During cross-examination, the state asked Lindemann if she was familiar with the behavior of the type of children who have reported a claim of rape by a family member and whether the daughter's behavior was consistent with what she described as typical behavior. 6 Defendant objected to both these questions contending that they invaded the province of the jury and that the answers would be opinions. We take this to mean opinions that are inadmissible because they are not helpful to the jury, for it is well settled that experts may offer opinions in some situations. 7

Defendant's contention that this testimony invades the province of the jury is not well founded. It is the settled law in Oregon that testimony on the ultimate issue is not inadmissible solely on that basis. State v. Breen, 250 Or. 474, 479, 443 P.2d 624 (1968). As we said earlier in Schwieger et ux v. Solbeck et ux, 191 Or. 454, 472-73, 230 P.2d 195 (1951), it is impossible to usurp the jury's function. Even if there is uncontradicted expert testimony, the jury is not bound by it, for the jury alone must make the ultimate decision. W.R. Chamberlin & Co. v. Northwestern Agencies, Inc., 289 Or. 201, 207, 611 P.2d 652 (1980).

Defendant contends that the evidence given by the experts here was a direct effort to support the credibility of the complaining witness. It is true that if the jurors believed the experts' testimony, they would be more likely to believe the victim's account. Neither of the experts directly expressed an opinion on the truth of the victim's testimony. Much expert testimony will tend to show that another witness either is or is not telling the truth. See State v. Stringer, 292 Or. 388, 639 P.2d 1264 (1982). This, by itself, will not render evidence inadmissible.

However, not all expert testimony, opinion or otherwise, is admissible. We recently restated the rule concerning admissibility of opinion evidence by experts in State v. Stringer, supra, 292 Or. at 391, 639 P.2d 1264:

"The test is not whether a jury is capable of drawing its own inferences from the evidence presented. Rather, the test is whether the expert's testimony, if believed, will be of help or assistance to the jury."

If a complaining witness in a burglary trial, after making the initial report, denied several times before testifying at trial that the crime had happened, the jury would have good reason to doubt seriously her credibility at any time. However, in this instance we are concerned with a child who states she has been the victim of sexual abuse by a member of her family. The experts testified that in this situation the young victim often feels guilty about testifying against someone she loves and wonders if she is doing the right thing in so testifying. It would be useful to the jury to know that not just this victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint, and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness's credibility. 8

We recognize that sexual abuse of children is a problem in our culture. 9 Def...

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