State v. Rhamy

"[D]etermination of the reliability of the child victim’s testimony and statements—and, in particular, how various questioning or interviewing techniques call the reliability of that evidence into question—is a matter for the trier of fact at trial, not a matter to be determined by the court in a pretrial hearing." State v. Kelly, 244 Or App 105, 109-110, 260 P3d 551 (2011); State v. Bumgarner, 219 Or App 617, 632-34, 184 P3d 1143, rev den, 345 Or 175 (2008), cert den, 555 US 1101, adh’d to as modified on recons, 229 Or App 92, 209 P3d 857 (2009).

Defendant appealed a conviction for attempted sodomy in the first degree.  Defendant assigned error to the trial court’s denial of a pretrial motion to exclude the testimony of the five-year-old victim as unreliable due to the techniques used to question the child about the Defendant’s conduct.  Defendant argued that the trial court should not have relied on State v. Bumgarner, 219 Or App 617, 184 P3d 1143, rev den, 345 Or 175 (2008), cert den, 555 US 1101, adh’d to as modified on recons, 229 Or App 92, 209 P3d 857 (2009), because the issue, in that case, was whether a victim was competent to testify, not whether the victim’s testimony was reliable.  Alternatively, Defendant argued that Bumgarner was undermined by a subsequent case.  In response, the State argued that Bumgarner controls a defendant’s pretrial motion for determination of whether a victim’s statements and testimony are reliable.  Determining the reliability of the testimony and statements of a child victim of sexual assault should not be determined by the court at a pretrial hearing; it should be decided by the trier of fact. State v. Kelly, 244 Or App 105, 109-10, 260 P3d 551 (2011); Bumgarner, 219 Or App at 632-34. The Court held that Bumgarner was not undermined and controls in pretrial determinations of the reliability of a child victim’s testimony.  Thus, the Court held that the trial court correctly denied Defendant’s motion.  Affirmed.