State v. Mendoza-Lopez

Preservation is required to ensure that party positions are clearly presented and “it will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or 333 (2009).

Defendants appealed two convictions of various sexual offenses. Defendant assigned error to the trial’s court exclusion of expert testimony. On appeal, Defendant argued that the expert testimony from the child psychologist was relevant in demonstrating that the complainants’ memories were altered and had been confused about the identity of their abusers because of the passage of time. In response, the State argued that Defendant did not preserve his claim because he did not join the codefendant in the theory of misidentification nor did he argue the defense theory himself. Preservation is required to ensure that party positions are clearly presented and “it will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or 333 (2009). The Court held that the preservation goals were met because the State had “every opportunity to argue against the admissibility of Bourg’s expert testimony” and was given “a full and fair opportunity” to meet and evaluate the arguments now brought on appeal. Reversed and remanded.