State v. Sundberg

Under OEC 401, an explanation as to why an alleged victim may have described her anatomy inconsistently is relevant explain her testimony.

Defendant was charged with first-degree sexual abuse and attempted unlawful penetration. At trial, the court excluded a doctor’s testimony regarding how 10-year-old girls typically describe their genitals. The trial court excluded this testimony on the grounds that it was irrelevant and an impermissible comment on the credibility of a witness. The State appealed this exclusion, arguing that evidence is “admissible expert testimony that will help the jury assess the credibility of [this victim’s] account of defendant’s misconduct.” Defendant argued the evidence was properly excluded because the State failed to prove the evidence was relevant to proof of the charged crimes, or to the victim’s credibility. The Court agreed with the State, holding testimony was relevant in that it explained why the alleged victim may have indicated to the doctor that Defendant had touched the outside of her vagina, yet then said Defendant had touched her inside her. This was not an impermissable comment on credibility of the victim because it was not a statement of what the doctor believed, but an explanation of why she described her body as she did. Reversed and remanded.