State v. Akins

506 April 17, 2025 No. 16

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

SHANE AARON AKINS,

Petitioner on Review.

(CC 18CR78427) (CA A176701) (SC S070807)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 26, 2024.

Erica L. Herb, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Anne Fujita Munsey, Deputy Public Defender, Oregon

Public Defense Commission, Salem, argued the cause and

filed the briefs for petitioner on review. Also on the briefs

was Ernest G. Lannet, Chief Defender, Criminal Appellate

Section.

BUSHONG, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Duncan, J., dissented and filed an opinion in which

James, and Masih, JJ., joined.

______________

* Appeal from Clackamas County Circuit Court, Todd L. Van Rysselberghe,

Judge. 329 Or App 538 (2023) (nonprecedential memorandum opinion).

Cite as 373 Or 506 (2025) 507

508 State v. Akins

BUSHONG, J.

This criminal case requires us to decide two evi-

dentiary issues related to allegations of child sexual abuse.

The first issue involves the admissibility of expert testimony

that child victims often delay reporting the abuse. In State

v. Perry, 347 Or 110, 218 P3d 95 (2009), we held that such

evidence can be admissible to rebut a defendant’s claim that

a delay in reporting meant that the abuse did not occur, but

we have not previously decided whether such evidence can

be admissible in the absence of such a claim. The second

issue involves the admissibility of out-of-court statements

made by a child declarant under an exception to the hear-

say rule provided in OEC 803(18a)(b), which makes such

statements admissible in a child sexual abuse case when

the declarant testifies at trial. Defendant contends that that

exception does not apply, because the victim, who was 15

years old when she made the challenged statements, was an

adult when she testified at trial.

The trial court denied defendant’s pretrial motions

to exclude both types of evidence, and a jury convicted defen-

dant on all charges. The Court of Appeals affirmed, adher-

ing to its own precedents on both evidentiary issues. State

v. Akins, 329 Or App 538 (2023) (nonprecedential memoran-

dum opinion). We allowed review and now affirm on both

issues.

On the first issue, we conclude that the trial court

did not err in denying defendant’s pretrial motion to exclude

the expert testimony, because, as we will explain, that evi-

dence could be relevant in this case to the jury’s assessment

of the victim’s credibility even if defendant did not use the

delay to impeach her, and the evidence was not unduly prej-

udicial. On the second issue, we agree with the trial court

and the Court of Appeals that, under OEC 803(18a)(b), evi-

dence of out-of-court statements made by a child victim of

sexual abuse is admissible if the declarant was a child when

she made the statements and she subsequently testifies at

trial, even if the declarant is an adult at the time of her trial

testimony. As we will explain, that conclusion follows from

the text and context of OEC 803(18a)(b).

Cite as 373 Or 506 (2025) 509

I. BACKGROUND

A. Historical Facts

We take the historical facts from the trial court

record, viewing that record in the manner most consistent

with the trial court’s rulings, and drawing all reasonable

inferences consistent with those rulings. State v. Wilson,

323 Or 498, 510-11, 918 P2d 826 (1996); State v. Carlson, 311

Or 201, 214, 808 P2d 1002 (1991).

The victim, M, was born in 2003 and lived with

her mother and defendant, her biological father, until her

parents separated in 2013. In 2018, when M was 15 years

old, she told her mother that, during the first decade of her

life, defendant had sexually abused her on multiple occa-

sions. Her mother reported that disclosure to the police, and

M was referred to Child Abuse Response and Evaluation

Services (CARES) for an evaluation. As a part of that eval-

uation, M stated in a recorded interview that the abuse had

started when she was about 5 or 6 years old and included

two incidents of anal sodomy and three incidents of vagi-

nal touching. She also explained that she had not previously

reported the abuse because she did not know any better at

first, but as she got older and realized that it was wrong, it

became harder to bear.

As a result of those allegations, defendant was

charged with two counts of first-degree sodomy and three

counts of first-degree sexual abuse.

B. Trial Proceedings

1. Delayed disclosure evidence

Defendant filed a motion in limine to exclude any

expert testimony explaining that it is common for child

victims of sexual abuse to wait before reporting the abuse.

Defendant did not dispute that such evidence is scientifi-

cally valid, and he conceded that the state would be able to

lay an adequate foundation for its admission. He asserted,

however, that delayed disclosure evidence is admissible

under Perry only to refute a defendant’s contention that

an allegation of abuse should be disbelieved because of the

delay in reporting it, a contention that the defendant did

510 State v. Akins

not intend to make here. In response, the state argued that

the evidence was admissible under State v. White, 252 Or

App 718, 288 P3d 985 (2012), in which the Court of Appeals

had concluded that expert testimony about delayed disclo-

sure was independently relevant and admissible regard-

less of whether the defendant relied on the fact of delay to

argue that the allegations were fabricated. The trial court

denied the motion to exclude the evidence, explaining that it

was “relevant for its independent significance to a possible

inference that the jury could draw * * * to find a motive of

fabrication.”

At trial, the state called Jennifer Wheeler, a foren-

sic interviewer at CARES, to testify about how and why chil-

dren often delay disclosing sexual abuse. Wheeler explained

that it is “widely accepted” in the field of forensic interview-

ing that children do not always disclose abuse “right away.”

The delay in disclosure “can be anywhere from weeks or

months to years.” Wheeler acknowledged that delayed dis-

closure “has nothing to do with whether or not the allegation

actually happened.” Defendant did not object to Wheeler’s

testimony when it was offered and received into evidence at

trial.

After the jury retired to deliberate, the prosecutor

asked the court, “out of an abundance of caution,” to make a

record regarding whether the probative value of the expert

testimony about delayed disclosure was substantially out-

weighed by the danger of unfair prejudice under OEC 403.

The trial court noted that defendant had not expressly raised

an OEC 403 objection,1 but it concluded that Wheeler’s trial

testimony was “highly relevant” and that any unfair preju-

dice did not outweigh the probative value of that testimony.

2. Out-of-court hearsay statements

Defendant also filed a motion in limine to exclude

all of M’s out-of-court hearsay statements, arguing that the

1

In his motion in limine, defendant had contended that any delayed report-

ing evidence would be “bolstering and vouching” and “impermissible based on the

evidence code,” but he had not expressly contended that such evidence was inher-

ently unfairly prejudicial and thus categorically inadmissible under OEC 403.

Defendant did not raise an OEC 403 objection or any other objection to Wheeler’s

testimony at trial.

Cite as 373 Or 506 (2025) 511

hearsay exception in OEC 803(18a)(b) did not apply, because

M was 18 years old at the time of trial. The trial court denied

the motion. At trial, M’s mother testified about what M had

told her when M first reported the abuse in 2018, when she

was 15 years old. Two of M’s close friends also testified that

M had told them about the abuse in 2018. M had told one

friend about the abuse via text messages, which were admit-

ted as an exhibit at trial. Wheeler, the CARES forensic

interviewer, also testified about what M had told her when

she interviewed M at CARES in 2018. That interview was

recorded, and the recording was played for the jury at trial.

A jury found defendant guilty of two counts of first-

degree sodomy and three counts of first-degree sexual abuse.

Defendant appealed.

C. Appellate Proceedings

Defendant contended in his first assignment of error

on appeal that the trial court erred in admitting expert tes-

timony about delayed disclosure of sexual abuse, and he con-

tended in his second, third, and fourth assignments of error

that the trial court had erred in admitting evidence of M’s

out-of-court hearsay statements under OEC 803(18a)(b).

On the delayed disclosure issue, defendant acknowl-

edged that the evidence would be admissible under the

Court of Appeals’ decision in White even if he did not use the

delay to challenge M’s credibility, but he argued that White

was wrongly decided and conflicts with this court’s decision

in Perry. On the hearsay issue, defendant contended that

the text, context, and legislative history of OEC 803(18a)(b),

and the Court of Appeals’ decision in State v. Lamb, 161 Or

App 66, 983 P2d 1058 (1999), all support the conclusion that

the hearsay exception does not apply when the declarant is

an adult at the time of trial.

The Court of Appeals affirmed on the delayed dis-

closure issue, summarily rejecting defendant’s arguments

that White should be overruled. The Court of Appeals also

affirmed on the hearsay issue, concluding that defendant’s

argument was foreclosed by its prior decision in State v.

Juarez-Hernandez, 316 Or App 741, 503 P3d 487, rev den,

512 State v. Akins

369 Or 856 (2022).2 Akins, 329 Or App at 541. Defendant

petitioned for, and we allowed, review on both issues.

II. DISCUSSION

On review, defendant contends that the trial court

erred in denying his pretrial motion to exclude the delayed

disclosure expert testimony and in admitting evidence of

M’s out-of-court hearsay statements under OEC 803(18a)(b).

We review those rulings for legal error. State v. Jesse, 360 Or

584, 599-60, 385 P3d 1063 (2016) (whether evidence is rele-

vant is a question of law); State v. Cook, 340 Or 530, 537, 135

P3d 260 (2006) (a trial court’s ultimate conclusion whether

hearsay testimony fits within an exception is reviewed for

legal error). We begin with the delayed disclosure evidence.

A. Delayed Disclosure Evidence

Defendant argues that the trial court should have

granted his motion in limine because expert testimony on

delayed disclosure is admissible under Perry only to rebut

a defendant’s contention that the delay undermined the vic-

tim’s credibility, a contention that defendant did not intend

to make. We evaluate that argument “in light of the record

made before the trial court when it issued the order, not

the trial record as it may have developed” at trial. State v.

Pitt, 352 Or 566, 575, 293 P3d 1002 (2012); see also State v.

Sperou, 365 Or 121, 137, 442 P3d 581 (2019) (stating that

“our review of a trial court’s ruling is limited to the record as

it had developed at the time of the ruling; we do not evaluate

a court’s pretrial decision with the benefit of hindsight by,

for example, taking into account what happened at trial”).

Defendant represented to the court in his motion

in limine that, unlike the defendant in Perry, he was not

planning to argue that M’s delay in disclosing the abuse

meant that the abuse had not occurred. Defendant acknowl-

edges that the evidence would have been admissible under

the Court of Appeals’ decision in White even without that

contention, but he argues here, as he did in the Court of

2

In Juarez-Hernandez, the Court of Appeals examined the text, context, and

legislative history of OEC 803(18a)(b) and concluded that a trial court had not

erred in admitting out-of-court hearsay statements by a victim of sexual abuse

who had been 17 years old when the statements were made but had turned 18 by

the time that she testified at trial.

Cite as 373 Or 506 (2025) 513

Appeals, that White is inconsistent with our decision in

Perry. Defendant contends that the expert testimony about

delayed reporting should have been excluded pretrial and

that such evidence is not admissible unless a defendant

“opens the door” by contending that the delay in reporting

undermines an alleged victim’s credibility. According to

defendant, without that contention, the testimony is irrele-

vant, unduly prejudicial, and amounts to improper vouching

evidence.

In response, the state contends that our decision in

Perry does not limit the relevance of expert testimony on

delayed reporting to rebutting a defendant’s contention that

a delay in reporting implies fabrication. In the state’s view,

the testimony could be relevant as part of the state’s case-

in-chief to help the jury assess M’s credibility even if defen-

dant does not contend that the delay undermined that cred-

ibility. The state further contends that the testimony was

not inherently prejudicial or improper vouching because

the expert could make it clear that the reporting delay had

nothing to do with whether the abuse had occurred.3 As we

will explain, we agree with the state.

We begin by explaining what we decided—and did

not decide—in Perry. The defendant in Perry was charged

with various crimes after his wife’s ten-year-old niece

reported that the defendant had sexually abused her. The

victim had disclosed the abuse to her father several months

after it had occurred. The state planned to call an expert,

the medical director at CARES Northwest, to testify at trial

about “a phenomenon known as ‘delayed reporting’ by child

victims of sexual abuse.” Perry, 347 Or at 114. The defen-

dant filed a motion in limine to exclude that testimony, con-

tending that the state could not lay an adequate foundation

establishing its scientific validity and that the evidence was

irrelevant and unfairly prejudicial. The trial court held a

hearing under OEC 104 to address the issue.

At the OEC 104 hearing, the expert testified that

this “phenomenon” was “ ‘common’ ” and “ ‘well understood’ ”

3

An argument could be made that defendant did not preserve this issue for

appellate review, but because the trial court addressed the issue at the close of

trial at the state’s request, we address the issue in this opinion.

514 State v. Akins

and that there was “a body of literature” addressing the

issue. Id. The trial court overruled the defendant’s objections

and concluded that the witness could testify “ ‘with respect to

the scientific validity of delayed reporting as a characteristic

of sexual abuse.’ ” Id. at 115 (quoting the trial court’s ruling).

On review, we agreed with the trial court. We first

observed that the defendant’s main argument was that the

expert’s testimony was inadmissible because it “was being

offered to show that the victim’s delayed reporting affirma-

tively established that the victim had been sexually abused.”

Id. at 117 (emphasis in original). We rejected that argument

for two reasons. First, we noted that the “defendant’s case

was built, in part, on the proposition that the victim’s delay

in reporting gave rise to an inference that she had not been

abused.” Id. (emphasis in original). The expert’s testimony

“served a legitimate purpose” to show that there was a sci-

entific basis for rejecting that proposition. Id. Second, we

noted that the expert had “never stated that delayed report-

ing was affirmatively probative of whether sexual abuse

actually had occurred.” Id. Rather, the expert had “specifi-

cally conceded that delayed reporting itself was not a diag-

nostic tool in that regard.” Id. (emphasis in original).

Next, we explained that the evidence could be

admissible because the “defendant’s theory of the case was

that the victim was fabricating.” Id. at 118. Under those cir-

cumstances, we explained, “a trier of fact could infer that the

victim’s delay in reporting tended to show that the events

about which the victim testified had never happened.” Id.

We concluded that, because the testimony “tended to counter

that inference,” it was relevant “in that respect at least.” Id.

We further concluded that the evidence was not unfairly

prejudicial, because the improper inference that the victim

had been abused simply because she waited to report the

abuse was not “inherent in the central thesis” of the expert’s

testimony that delayed reporting “is common in verified

cases of child sexual abuse.” Id. at 119-20.4

4

We also concluded that the state had laid an adequate foundation to estab-

lish the scientific validity of the delayed reporting evidence in that case. Perry,

347 Or at 120-26. Defendant does not challenge the scientific validity of the

delayed reporting evidence, or the adequacy of the foundation laid for its admis-

sion in this case.

Cite as 373 Or 506 (2025) 515

Perry did not hold that expert testimony about

delayed disclosure is relevant only if the defendant expressly

contends that a victim’s delay in reporting the allegations

suggests that they were fabricated. We stated in Perry that

the evidence can be relevant to counter an inference that

“a trier of fact” could make, not that the evidence can be

relevant only to rebut an argument that the defendant has

made. Thus, it does not logically follow from our decision

in Perry that expert testimony about delayed disclosure is

admissible only if the defendant uses the delay to challenge

the victim’s credibility. Instead, whether such evidence is

categorically inadmissible when the defendant does not

make that contention depends on whether the evidence is

nonetheless relevant under OEC 401, and if so, whether its

probative value is “substantially outweighed by the danger

of unfair prejudice” to the defendant, OEC 403.

Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the deter-

mination of the action more probable or less probable than

it would be without the evidence.” OEC 401. Here, one fact

that was “of consequence” to the determination of this case

was whether M’s testimony that defendant had sexually

abused her was credible. The jury could infer that M’s tes-

timony was less credible because she had delayed reporting

the abuse; the expert testimony was relevant to rebut that

inference.

We have previously held that expert testimony that

can help a jury assess a witness’s credibility can be rele-

vant.5 For example, in State v. Middleton, 294 Or 427, 429-

30, 657 P2d 1215 (1983), a defendant introduced statements

by the victim that were inconsistent with the victim’s ini-

tial accusation that the defendant—her father—had raped

her. In rebuttal, the state offered the testimony of two social

workers to explain that the victim’s behavior—including

her decision to recant her accusation—was typical of vic-

tims of familial sexual abuse. We held that the evidence was

5

To be admissible, expert testimony must “assist the trier of fact to under-

stand the evidence or to determine a fact in issue.” OEC 702. We have described

this requirement as the “helpfulness inquiry” under OEC 702. Jesse, 360 Or at

593-94. Defendant does not contend that the expert testimony at issue here did

not meet OEC 702’s helpfulness requirement.

516 State v. Akins

relevant because it “could help the jury better assess the

[victim’s] credibility.” Id. at 436.

Similarly, in State v. Gherasim, 329 Or 188, 190,

985 P2d 1267 (1999), a rape victim had identified the defen-

dant as her assailant, but the defendant contended at trial

that he had arrived on the scene after the assault and had

attempted to help the victim. The defendant proffered the

testimony of a psychiatrist that the victim experienced dis-

sociative amnesia, which had caused her to be confused

about the assault. The trial court excluded the testimony,

but we reversed. Because the expert’s testimony was that

the victim’s dissociative amnesia condition “affected her

capacity to remember what had occurred on the night that

she was assaulted[,]” we concluded that it “was evidence

that [the] defendant was entitled to present” to help the jury

assess the credibility of the victim’s testimony. Id. at 198.

We subsequently explained the significance of

Middleton and Gherasim in Jesse. There, we stated that

we had concluded in both cases that “expert testimony that

modified inferences that the jury otherwise might be expected

to draw from the evidence” could be relevant and helpful to

the jury. Jesse, 360 Or at 596 (emphasis added). The rele-

vance of the expert testimony in those cases, and in Perry,

as explained above, depended on inferences that the jury

might be expected to draw from the evidence, regardless of

the arguments made by the parties.

Here, the jury would be aware that M was alleg-

ing that defendant had sexually abused her many years

before she had reported the abuse to her mother, and that

defendant was denying that the abuse had occurred. Under

those circumstances, the jury “might be expected to draw”

an inference that the delay in reporting meant that the

abuse had not occurred, even if defendant did not make that

specific contention. And because the state had the burden

of proving beyond a reasonable doubt that the abuse had

occurred, it was entitled to present evidence to rebut that

inference as part of its case-in-chief, as we have recognized.

For example, in State v. Zybach, 308 Or 96, 775 P2d

318 (1989), the child victim of an alleged rape waited nine

Cite as 373 Or 506 (2025) 517

months to report the incident. The trial court admitted evi-

dence of encounters between the victim and the defendant

during that nine-month period to explain the reasons for the

delay. The Court of Appeals reversed, but we reversed the

Court of Appeals and affirmed the trial court, concluding that

the evidence was relevant “to prove why the victim delayed

reporting the crime.” Id. at 99. We further concluded that the

evidence was admissible in the state’s case-in-chief “under its

obligation to prove the charge beyond a reasonable doubt.” Id.

at 100. We explained that “it was permissible for the state to

bring out ‘up front’ the delayed reporting” to rebut the poten-

tial inference that the jury might draw about the victim’s

credibility from the fact that she had delayed reporting it. Id.

That conclusion is supported by a subsequent case,

State v. Serrano, 355 Or 172, 324 P3d 1274 (2014), where we

held that a police criminalist’s testimony about how physi-

cal evidence was catalogued and stored was relevant, even

though the defendant had not challenged the integrity of the

physical evidence linking the defendant to the crime scene.

We observed that the criminalist’s testimony “tended to

make the probative weight of the physical evidence greater

than it would have been without [the] testimony.” Id. at 192.

We explained that the state was “not required to wait” for

the defendant to challenge the probative weight of the phys-

ical evidence, id., because, as we had recognized in Zybach,

“a party bearing the burden of proof is entitled to anticipate,

as part of its case-in-chief, inherent weaknesses that might

make its case less believable.” Serrano, 355 Or at 191.

Although defendant suggests that the jury would

not consider the delay in reporting when assessing M’s cred-

ibility, nothing in this case precluded the jury from drawing

that seemingly plausible inference. Given how critical cred-

ibility was in this case, the state was entitled to anticipate

that inference and offer evidence to address it as part of

its case-in-chief, even if the defendant represented to the

court that the defendant was not expressly contending that

the reporting delay meant that the abuse had not occurred.

Accordingly, we conclude that the trial court did not err in

denying defendant’s pretrial motion to exclude that evidence

as irrelevant.

518 State v. Akins

Nor did the trial court err in denying defendant’s

motion in limine on the grounds that the evidence, categori-

cally, was unfairly prejudicial and thus, inadmissible under

OEC 403. The evidence was not too prejudicial categori-

cally because the expert can make it clear that the delay

did not mean that the abuse had occurred, as in Perry and

as Wheeler ultimately testified in this case. In Perry, we

acknowledged that expert testimony about delayed disclo-

sure could be unfairly prejudicial if the testimony increased

“the likelihood that jurors would find that the complainant

in fact was abused simply because she waited to make her

allegations.” 347 Or at 119 (emphasis in original). But we

rejected the defendant’s argument that the testimony was

unfairly prejudicial categorically because, as discussed

above, the danger that the jury might use the evidence to

infer that the abuse had occurred was not “inherent” in

expert testimony that delayed reporting is common in child

sexual abuse cases. Id. at 119-20. The same is true here.

To the extent that defendant’s OEC 403 challenge

in this court is based on how the evidence came in at trial,

not on the trial court’s pretrial ruling on defendant’s motion

in limine, that challenge is unpreserved for appellate review

because defendant did not assert an OEC 403 objection

when the testimony was offered and received at trial, as

noted above. See Pitt, 352 Or at 574 (stating that, after the

trial court has denied a pretrial motion to exclude evidence,

parties should make “the same or other objections, if war-

ranted, when a party offers the evidence during trial”); Perry,

347 Or at 118 (stating that, even though the trial court had

denied a defendant’s pretrial motion to exclude evidence,

“it was defendant’s responsibility to point out to the trial

court” any additional objections to the evidence when it was

offered at trial). Because our decision in this case is based

on the record at the time of the motion in limine, it does not

preclude trial courts in other cases from assessing whether

such testimony is inadmissible under OEC 403 in the con-

text in which the testimony may be offered at trial.

We further conclude that the expert testimony

was not categorically inadmissible as vouching evidence.

Impermissible vouching occurs when a witness makes “[a]

Cite as 373 Or 506 (2025) 519

direct comment on the credibility of a witness or a state-

ment that is ‘tantamount’ to stating that another witness is

truthful[.]” State v. Beauvais, 357 Or 524, 543, 354 P3d 680

(2015). Stating that a witness has not been coached or is not

deceptive can be tantamount to a direct comment on cred-

ibility, as are other statements that are “commonly under-

stood ways of signaling a declarant’s belief that a witness

is telling the truth.” Id. Such testimony is inadmissible to

ensure that “ ‘the jury’s role in assessing witness credibil-

ity is not usurped by another witness’s opinion testimony.’ ”

State v. Black, 364 Or 579, 585, 437 P3d 1121 (2019) (quoting

State v. Chandler, 360 Or 323, 330, 380 P3d 932 (2016)).

In determining whether expert testimony consti-

tutes impermissible vouching, we have explained that the

critical inquiry is “whether the testimony provides an opin-

ion on truthfulness or, instead, provides a tool that the fact-

finder could use in assessing credibility.” Black, 364 Or at

593. Testimony that tells the jury a witness’s opinion about

the truthfulness of another witness is generally inadmissible

as vouching, but testimony that provides “information that

[jurors] could use to form their own opinions” about credi-

bility is not. Id. at 590-91. Expert testimony that reporting

delays by victims of child sexual abuse are “common” but

have “nothing to do with” whether the abuse had occurred is

information that can help a jury assess the credibility of an

alleged victim’s testimony without signaling that the expert

believed that the victim was telling the truth. Thus, the tes-

timony was not categorically inadmissible as vouching.6

In summary, expert testimony that delayed report-

ing is common in victims of child sexual abuse can be rele-

vant to help a jury assess the victim’s credibility even if the

defendant does not use the delay to challenge that credi-

bility. Such testimony is not so unfairly prejudicial that it

must be excluded unless the defendant “opens the door” by

specifically contending that the jury should infer from the

6

Again, to the extent that defendant contends that Wheeler’s trial testimony

went further than allowed by the court’s pretrial ruling or constituted vouching when

considered in the context of the evidence that was received at trial, that contention

was not preserved for appellate review, because defendant did not object to Wheeler’s

testimony when it was offered and received at trial or contend that Wheeler’s testi-

mony went further than what was allowed by the trial court’s pretrial ruling.

520 State v. Akins

delay that the allegations were fabricated. Nor is such testi-

mony categorically inadmissible as vouching; rather, it can

provide information that jurors may use to assess the vic-

tim’s credibility without providing the expert’s own opinion

on the victim’s truthfulness. Accordingly, we conclude that

the trial court did not err in denying defendant’s pretrial

motion to exclude that testimony.

In reaching that conclusion, we do not mean to sug-

gest that expert testimony that relates to a victim’s credibility

will always be both relevant and helpful to the jury. Expert

testimony connecting the expert’s explanation of delayed

reporting to the specific reasons offered by the victim for the

delay could be inadmissible as vouching. In other instances,

the probative value of such testimony may be substantially

outweighed by the danger of unfair prejudice to the defen-

dant, making the evidence inadmissible under OEC 403 or at

least requiring an appropriate limiting instruction.7 But in a

child sexual abuse case, where the defendant denies that the

abuse occurred and the victim delays reporting the abuse,

the type of expert testimony offered here to rebut a plausible

inference that the jury could make—that the delay under-

mined the victim’s credibility—is not categorically inadmis-

sible. Thus, the trial court did not err in denying defendant’s

pretrial motion to exclude that evidence.

B. Out-of-Court Hearsay Statements

Defendant contends that the trial court erred in

applying OEC 803(18a)(b) to admit testimony from others

about what M had said when she disclosed the abuse in 2018,

when she was 15 years old. According to defendant, the hear-

say exception provided in that rule does not apply, because

M was an adult when she testified at trial. Resolving that

contention requires us to interpret the rule, applying “our

traditional method of statutory interpretation[,] focusing on

text, context, and legislative history.” Gollersrud v. LPMC,

LLC, 371 Or 739, 745, 541 P3d 864 (2023) (citing State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)). We begin

7

In Perry, we noted that, if the defendant thought that an expert “was add-

ing a different (and irrelevant) ‘spin’ to the relevant facts that she was reporting,

then it was for the defendant to point that out and to seek to limit her testimony.”

347 Or at 119.

Cite as 373 Or 506 (2025) 521

with the text, which “is the best evidence of the legislature’s

intent.” PGE v. Bureau of Labor and Industries, 317 Or 606,

610, 859 P2d 1143 (1993).

OEC 803(18a)(b) provides, in pertinent part:

“A statement made by a person concerning an act of abuse

as defined in ORS 107.705 or 419B.005 * * * is not excluded

by [OEC 802] if the declarant either testifies at the proceed-

ing and is subject to cross-examination, or is unavailable

as a witness but was chronologically or mentally under 12

years of age when the statement was made * * *.”8

There is no dispute that the acts alleged in the indictment

constitute “act[s] of abuse” within the meaning of OEC

803(18a)(b).9 Paragraph (b) of OEC 803(18a) does not limit

its application to testifying declarants who were of a specific

age when they made a qualifying statement or when testi-

fying at trial, but paragraph (d) states that the rule “applies

to a child declarant, a declarant who is an elderly person as

defined in ORS 124.050 or an adult declarant with a devel-

opmental disability.” Thus, at a minimum, to be admissible

under OEC 803(18a)(b), the victim must have been a child—

under the age of 18—an elderly person, or an adult with

a developmental disability when they made the statements

being offered under the rule.

Defendant contends that OEC 803(18a)(b) and (d)

together mean that, as applied to child victims of abuse,

the hearsay exception applies only if the victim was a “child

declarant” when she made the statements and when she tes-

tified at trial. Thus, according to defendant, the statements

at issue here are inadmissible because M was not a “child

declarant” when she testified, even though she was a “child

declarant” when she made the statements.

Defendant bases that conclusion in part on the text of

the rule, read in context. Defendant points out that “hearsay”

8

The remaining text of OEC 803(18a)(b) addresses when a declarant is

“unavailable” to testify at trial. Because the victim in this case was available and

testified at trial, the provisions of the rule that address an “unavailable” declarant

are relevant context but do not directly apply to the issue presented in this case.

9

Among other things, “abuse” is defined in ORS 419B.005(1)(a)(D) as “[s]

exual abuse, as described in ORS chapter 163.” Defendant was convicted of first-

degree sexual abuse, which includes, among other things, subjecting a person

under 14 years of age to sexual contact. ORS 163.427(1)(a)(A).

522 State v. Akins

is defined in OEC 801(3) as “a statement, other than one

made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”

(Emphasis added.) That means that a “declarant” can make

a “statement” while testifying at trial in addition to making

prior statements before trial. It follows, defendant contends,

that statements that M had made when she was a “child

declarant” are not admissible under OEC 803(18a)(b) because

she was not a “child declarant” when she testified at trial. We

disagree.

M was indisputably both a “child” and a “declarant”

at the time that she made statements about the abuse to

her mother, the CARES interviewer, and her friends. Those

statements, made when M—the declarant—was 15 years

old, were offered into evidence through the testimony of

M’s mother, M’s two friends, and the CARES interviewer.

It is that testimony—not M’s own testimony at trial—that

defendant contends should have been excluded. But that tes-

timony was admissible under the text of the rule because

(1) it was evidence of statements that M had made when she

was a “child declarant”; and (2) M testified at trial and was

subject to cross-examination.

That is all that is required by the text of the rule

to make that evidence admissible. Nothing in the text con-

ditions the admissibility of that evidence on the declarant’s

age when she testified at trial—that is, the rule does not

expressly state that the witness must be a child at the time

of her trial testimony. The rule requires that the declarant

must testify at the proceeding and be subject to cross exam-

ination unless the declarant is “unavailable as a witness but

was chronologically or mentally under 12 years of age when

the statement was made * * *.” OEC 803(18a)(b). When the

victim testifies, the admission of hearsay statements under

the rule would not violate a defendant’s constitutional right

to confront their accuser.10

10

The legislative history reflects that legislators were concerned about the

constitutionality of the rule when the hearsay exception was first proposed.

Senators asked witnesses at the first public hearing on the proposed bill to pro-

vide testimony on the constitutional issues. Tape Recording, Senate Committee on

Judiciary, SB 275, Feb 27, 1989, Tape 47, Side A (colloquy between Senator Robert

C. Shoemaker and Yamhill County District Attorney John L. Collins). Supporters

asserted that the proposed hearsay exception protected a defendant’s right

Cite as 373 Or 506 (2025) 523

The fact that a “statement” can be made by a declar-

ant while testifying at trial is immaterial because defendant

is not challenging the admissibility of statements that M

made when she testified at trial. Rather, defendant is chal-

lenging the admissibility of the testimony of other witness-

es—M’s mother, M’s friends, and the CARES interviewer—

who related the statements that M had made when she was

15 years old. Because M was a child when she made those

statements, the witnesses’ testimony relating those state-

ments to the jury was admissible under the text of the rule.11

The context of OEC 803(18a)(b) generally supports

that understanding. See PGE, 317 Or at 611 (context includes

other provisions of the same statute and other related stat-

utes). As noted above, OEC 803(18a)(b) permits out-of-court

statements to be admitted into evidence if the statements

concern an act of “abuse” as defined in ORS 419B.005. That

statute, in turn, generally refers to acts done to a “child.” See

ORS 419B.005(1)(a)(A) (“[a]ny assault * * * of a child and any

physical injury to a child”); ORS 419B.005(1)(a)(B) (“[a]ny

mental injury to a child”); ORS 419B.005(1)(a)(C) (“[r]ape

of a child”). “Child” is defined by ORS 419B.005(2)(a) as “an

unmarried person” who is “under 18 years of age.” And as

noted above, “declarant” is defined in OEC 801(2) as “a person

who makes a statement.” Thus, a “child declarant” as used

in OEC 803(18a)(d) is an unmarried person who is under

to confront the witnesses against them, and they emphasized that substantial

indicia of reliability would be required for admission of a hearsay statement. See

Exhibit C, Senate Committee on Judiciary, SB 275, Feb 27, 1989 (accompanying

statement of Yamhill County District Attorney John L. Collins). They also high-

lighted cases from other jurisdictions upholding the constitutionality of analogous

hearsay exceptions. Id. (citing State v. Ryan, 103 Wash 2d 165, 691 P2d 197 (1984),

and State v. Myatt, 237 Kan 17, 697 P2d 836 (1985)). Opponents of the bill argued

that the law was dangerous because it could allow some child sexual abuse trials

to proceed “without any confrontation of the person that’s made that accusation.”

Tape Recording, Senate Committee on Judiciary, SB 275, Feb 27, 1989, Tape 46,

Side A (statement of Robert Reed, Oregon Criminal Defense Lawyers Association).

11

The dissenting opinion reads the text differently, concluding that OEC

803(18a)(b) and (d), read together, means that the “child declarant” must be a

child at the time of trial. 373 Or at 539 (Duncan, J., dissenting). That is certainly

one way to read the text, but it is not the only way. An equally plausible read-

ing is that “child declarant” as used in OEC 803(18a)(d) means that the person

making the statement at issue—the declarant—must be a child when the person

made the statement, and that the text of OEC 803(18a)—unlike the text of OEC

803(24)—does not clearly specify that the person must also be a child when testi-

fying at trial.

524 State v. Akins

18 years of age who makes a statement. M was unmarried

and 15 years of age when she made the statements that are in

dispute in this case.

The rule’s allowance of the same out-of-court state-

ments when they are made by an unavailable witness is

also instructive. OEC 803(18a)(b) expressly provides that,

if a declarant is “unavailable” to testify at trial, the declar-

ant’s out-of-court hearsay statement is admissible only if the

declarant was under 12 years of age “when the statement

was made.” Because the declarant is unavailable to testify

at trial, the declarant’s age at the time of trial is irrelevant.

What matters is the declarant’s age at the time the state-

ment was made. The same should be true of a testifying

declarant. That is further contextual support for the conclu-

sion that the legislature intended to condition admissibility

on the declarant’s age when the statement was made, not

the declarant’s age at the time of trial.

Moreover, OEC 803(24), which cross-references OEC

803(18a), authorizes a trial court to take testimony outside

the courtroom in some circumstances if the witness is “a

child under 12 years of age at the time of trial.” (Emphasis

added.) The legislature enacted that rule in 1989, the same

year that it enacted OEC 803(18a)(b). Or Laws 1989, ch 881,

§ 1 (enacting OEC 803(18a)(b)); Or Laws 1989, ch 300, § 1

(enacting OEC 803(24)). Specifying an age requirement for

a witness “at the time of trial” in OEC 803(24)—but not

in OEC 803(18a)(b)—supports the conclusion that no such

requirement was intended in OEC 803(18a)(b).

Context also includes the rules existing at the time

of the enactment and prior versions of the current rule. See

State v. Ziska / Garza, 355 Or 799, 806, 334 P3d 964 (2014)

(“the context of a statute may include prior versions of the

statute”); State v. Blair, 348 Or 72,76, 228 P3d 564 (2010)

(context “includes the law as it existed before the adoption”

of the statute at issue). As noted above, OEC 803(18a)(b) was

first enacted in 1989.12

12

The 1989 version of the rule provided, in relevant part:

“A statement made by a child victim who is under 10 years of age, which

statement describes an act of sexual conduct performed with or on the child by

another, is not excluded by [OEC 802] if the statement is offered as evidence

Cite as 373 Or 506 (2025) 525

Under the existing rule before that enactment, evi-

dence of “[a] complaint of sexual misconduct * * * after the

commission of the alleged offense” was admissible under an

exception to the hearsay rule, but the evidence was “confined

to the fact that the complaint was made.” OEC 803(18a)

(1981). That rule applied to both adult and child victims of

sexual abuse, and, as noted in the Legislative Commentary,

was based on a well-established common-law rule. See

Legislative Commentary to OEC 803(18a), reprinted in Laird

C. Kirkpatrick, Oregon Evidence § 803.18a (7th ed 2020) (cit-

ing State of Oregon v. Tom, 8 Or 177 (1879), and other cases);

State v. Campbell, 299 Or 633, 641-44, 705 P2d 694 (1985)

(discussing history of OEC 803(18a) and the cases cited in

the legislative commentary to that rule).

The rationale for the common-law rule was that an

out-of-court complaint of sexual misconduct was sufficiently

reliable that it should be admissible as evidence to corrobo-

rate the victim’s testimony and to negate any inference that

the victim had consented to the sexual conduct, although

the consent rationale “was abandoned in child victim cases.”

Campbell, 299 Or at 644; see also State v. Sargent, 32 Or 110,

112-13, 49 P 889 (1897) (explaining that evidence of a past

complaint of sexual misconduct was admissible to corrobo-

rate the victim’s testimony because it would be “the natural

instinct” of a victim to disclose the abuse “to a near relative

or confidential friend”).

Thus, when the legislature added paragraph (b) to

OEC 803(18a) in 1989, out-of-court statements made by vic-

tims of sexual abuse—both adult and child victims—were

already admissible, though limited to the fact that an abuse

complaint had been made.13 And this court held in Campbell

that a complaint made by a child victim of sexual abuse

was admissible under that rule even if the victim did not

in a criminal trial or juvenile court proceeding and if the child either testifies

at the proceeding and is subject to cross-examination or is unavailable as a

witness * * *.”

OEC 803(18a)(b) (1989); see also Or Laws 1989, ch 881, § 1 (so demonstrating).

13

That limitation—confining the testimony to the fact that an abuse com-

plaint had been made—did not mean that the testimony was not hearsay. A wit-

ness testifying that a victim had previously told the witness that the victim had

been abused is testimony offered for the truth of the matter asserted—that is, the

fact of the report tended to corroborate that the victim had, in fact, been abused.

526 State v. Akins

testify at trial. Campbell, 299 Or at 645. The 1989 addition

of paragraph (b) to OEC 803(18a) thus expanded the scope of

the existing hearsay exception to cover all prior out-of-court

statements about the abuse—not just those establishing the

fact that a complaint of sexual misconduct had been made—

if the child victim was under the age of 10 and either testi-

fied at trial or was unavailable to testify.

That expansion of the scope of the existing hear-

say exception is consistent with the purposes of the hear-

say rule and the numerous exceptions to that rule that

have been adopted by the legislature. For example, it is well

established that out-of-court hearsay statements are gen-

erally inadmissible because they are not considered as reli-

able or trustworthy as statements made by a witness under

oath subject to cross-examination. See John H. Wigmore, 5

Evidence in Trials at Common Law § 1362, 3 (3d ed 1940)

(“The theory of the [h]earsay rule is that the many possible

deficiencies, suppressions, sources of error and untrustwor-

thiness, which lie underneath the bare untested assertion of

a witness, may be best brought to light and exposed by the

test of [c]ross-examination.”).

However, the many exceptions to the hearsay rule

in the evidence code are based on legislative determinations

that, under the circumstances described in each exception,

the out-of-court statements are considered sufficiently reli-

able or trustworthy to make them admissible as evidence

at trial. See Legislative Commentary to OEC 803, reprinted

in Laird C. Kirkpatrick, Oregon Evidence § 803.01 (7th ed

2020) (stating that the exceptions listed in OEC 803 are

based upon “the theory that a hearsay statement may pos-

sess such circumstantial guarantees of trustworthiness”

that the statement should be admitted regardless of whether

the declarant is available to testify at trial). As one treatise

explains, hearsay evidence “exhibits a wide range of reli-

ability” and “is not by its inherent nature unworthy of any

reliance in a judicial proceeding.” 2 McCormick on Evidence

§ 245 at 185-86 (8th ed 2020). The exceptions to the hear-

say rule thus reflect the legislature’s attempt “to adjust the

Cite as 373 Or 506 (2025) 527

rules of admissibility to variations in the reliability of hear-

say[.]” Id.14

Consistent with the history of the common-law rule

codified in OEC 803(18a) and other hearsay exceptions that

have been adopted by the legislature, the exception in OEC

803(18a)(b) reflects a legislative determination that out-of-

court statements made by a child victim of sexual abuse are

sufficiently reliable to make them admissible, if the victim

either testifies and is subject to cross-examination at trial, or

is under 12 years of age and unavailable to testify.15 A child

victim’s out-of-court statements about sexual abuse could

tend to corroborate—or undermine—the victim’s trial testi-

mony. By making those out-of-court statements admissible

under OEC 803(18a)(b), the legislature determined that the

circumstances in which those statements were made gave

them sufficient reliability to make them admissible. That

legislative assessment is premised on the circumstances in

which the statements were made—the victim’s age and the

assumption that a child victim would confide in a trusted

friend, relative, or other person—not the victim’s age at the

time of trial. As noted above, whether a declarant testified

at trial primarily addressed concerns about a defendant’s

confrontation rights, not the reliability of the declarant’s

out-of-court statements.

The legislative history to the 1989 enactment con-

firms that the legislature expanded the existing rule in part

because it was satisfied that out-of-court statements made

by child victims were sufficiently reliable to make them

admissible. For example, then-Yamhill County District

Attorney John Collins explained that the rule was needed

because “the child’s initial report and subsequent reports—

what may be the child’s most candid statements—[were] not

admitted in court” under the existing rule, leaving the jury

14

An example of this legislative effort was the enactment of OEC 803(26), Or

Laws 1999, ch 945, § 1. That rule makes out-of-court statements describing an

incident of domestic violence made by the victim within 24 hours after the inci-

dent admissible in certain circumstances. That reflects the legislature’s determi-

nation that statements made close in time to the incident of domestic violence,

under the circumstances specified in the rule, are sufficiently trustworthy that

they should be admissible as evidence at trial.

15

As we explain below, that conclusion is supported by statements in the

legislative history of OEC 803(18a)(b).

528 State v. Akins

to “speculate regarding what are very logical questions, i.e.,

what did the child tell the first time it was reported; how did

he or she act; how consistent was the child in subsequent

statements?” Testimony, Senate Committee on Judiciary,

SB 275, Feb 27, 1989, Ex C (statement of John Collins)

(emphasis added). A witness from the Oregon Department

of Justice reiterated the desire to capture the “details and

spontaneity” that may be included in a victim’s earlier

statements but absent from their courtroom testimony.

Testimony, Senate Committee on Judiciary, SB 275, Feb 27,

1989, Ex D (statement of Deborah Wilson).

Granted, another reason for the original bill was to

protect child victims from the trauma that may be caused

if they were required to testify at trial, as defendant points

out. Because the rule as originally enacted only applied to

child victims under 10 years of age even if they testified at

trial, it is understandable that the legislative history of the

original rule reflects that proponents of the bill and legisla-

tors were concerned that testifying in a courtroom could be

traumatizing to young children.16 But the original bill and

subsequent amendments to the rule reflected other concerns

without clearly indicating that the legislature intended the

exception to apply only if the child victim was a child at the

time of trial.

As relevant here, OEC 803(18a)(b) was amended in

1991, Or Laws 1991, ch 391, § 1, and again in 1999, Or Laws

1999, ch 945, § 1. The 1991 amendment removed the orig-

inal age qualification for victims who testify at trial, and

raised it to 12 years of age for victims who were unavail-

able to testify.17 That textual change could be understood to

16

For example, John Collins, then-Yamhill County District Attorney,

explained that, in sexual abuse cases, children can be “highly traumatized emo-

tionally by testifying in a courtroom setting.” Tape Recording, Senate Committee

on Judiciary, SB 275, Feb 27, 1989, Tape 46, Side A. One legislative staff sum-

mary emphasized cases in which “children have ‘frozen up’ in trials,” Staff

Measure Summary, Senate Committee on Judiciary, SB 275, June 21, 1989, and

another indicated that the bill would “allow the judicial system to be more sensi-

tive to the needs of children and families who are victims of sexual abuse,” Staff

Measure Summary, House Committee on Judiciary, SB 275, June 2, 1989.

17

The 1991 version of the rule provided, in relevant part:

“A statement made by a child victim, which statement concerns an act

of sexual conduct performed with or on the child by another, is not excluded

by [OEC 802] if the child either testifies at the proceeding and is subject to

Cite as 373 Or 506 (2025) 529

support the conclusion that out-of-court statements made by

a victim who was a child when she made the statements are

admissible if the victim testifies at trial, regardless of her

age at the time of her trial testimony.

On the other hand, the 1991 amendment did not

change the text of the original rule that stated that the

hearsay exception applies if “the child * * * testifies” and is

subject to cross examination. The intended meaning of that

text is not entirely clear. The legislature’s use of the definite

article “the” “often signifies a narrowing intent, a reference

to ‘something specific, either known to the reader or listener

or uniquely specified.’ ” Hickey v. Scott, 370 Or 97, 107, 515

P3d 368 (2022) (quoting State v. Lykins, 357 Or 145, 159,

348 P3d 231 (2015)). Thus, “the child” in the phrase “the

child * * * testifies” likely refers to “a child victim” of sexual

abuse. That means that the victim must be a child at the

time of the abuse, but it does not necessarily mean that she

must still be a child at the time of her testimony. Although

the 1991 amendment could be understood in that way, that

understanding does not necessarily follow from a grammat-

ical reading of the rule’s text.

The legislative history of the 1991 amendment

sheds little light on the legislature’s likely intent. Nothing

in the legislative history of that amendment clearly indi-

cates that the rule was intended to apply only if a testifying

victim was a child at the time of trial.

One legislator again mentioned that concerns about

the emotional trauma that child witnesses may experience

when called to testify at trial had motivated the legisla-

ture to enact the rule in 1989. See Tape Recording, House

Committee on Judiciary, Subcommittee on Family Justice,

HB 2395, Feb 22, 1991, Tape 40, Side B (statements by

Representative Wayne Clark).18 On the other hand, Chris

cross-examination or is under 12 years of age and is unavailable as a witness.

However, when a child under 12 years of age is unavailable as a witness,

the statement may be admitted in evidence only if the proponent establishes

that the time, content and circumstances of the statement provide indicia of

reliability * * *.”

OEC 803(18a)(b) (1991); see also Or Laws 1991, ch 391, § 1 (so demonstrating).

18

In addition to that testimony, the legislative staff summary of the 1991

amendment explained that the bill meant that “[a] statement made by an alleged

530 State v. Akins

Gardner of the Oregon District Attorneys’ Association testi-

fied that the 1991 amendment to the rule “would allow the

hearsay statements of the child concerning the abuse if she

or he are available and actually testifies regardless of their

age.” Id. (statements of Chris Gardner) (emphasis added).

That statement could simply emphasize that, for testifying

victims, the statute no longer limited the rule to statements

made by children under the age of 10, or it could mean that

there was no age requirement at all for testifying victims.

In any event, the legislature amended the rule again

in 1999, changing “the child * * * testifies” to “the declarant

* * * testifies” and adding paragraph (18a)(d), which stated

at that time that the rule “applies to a child declarant or

an adult declarant with developmental disabilities.” OEC

803(18a)(d) (1999).19 Again, the significance of that change is

not altogether clear. If the rule as amended in 1991 applied to

statements made by a child victim regardless of the victim’s

age at the time of her testimony, the amendment adopted in

1999 could have simply confirmed that the declarant must

have been a child when she made the statements at issue.

Alternatively, if the rule as amended in 1991 applied only if

a testifying victim was a child at the time of her testimony,

then arguably, the 1999 amendment could have eliminated

that limitation.20 Another possibility, urged by defendant, is

that the rule as adopted in 1989 and amended in 1991 has

child victim (under 18 years of age) concerning an act of sexual conduct would not

be inadmissible under the hearsay rule if the child testified as a witness.” Staff

Measure Summary, Senate Committee on Judiciary, HB 2395B, June 10, 1991

(emphases added).

19

OEC 803(18a) (1999) provided, in relevant part:

“(b) A statement made by a person concerning an act of abuse, as defined

in ORS 107.705 or 419B.005, is not excluded by [OEC 802] if the declarant

either testifies at the proceeding and is subject to cross-examination or was

chronologically or mentally under 12 years of age at the time the statement

was made and is unavailable as a witness. * * *

“* * * * *

“(d) This subsection applies to a child declarant or an adult declarant

with developmental disabilities. * * *”

See also Or Laws 1999, ch 945, § 1 (so demonstrating). Although the rule has been

amended since 1999, those changes do not affect our analysis.

20

However, as explained below, the legislative history of the 1999 amend-

ment indicates that the textual changes were not intended to make substantive

changes to the rule.

Cite as 373 Or 506 (2025) 531

always applied only if the victim was a child at the time of

her testimony, and the 1999 amendment did not change that

requirement.

That last possibility is a plausible interpretation of

the rule as it evolved over time, but the better reading of the

rule’s text, in context, does not support that interpretation,

as explained above. Moreover, the legislative history of the

1999 amendment does not compel that understanding, con-

sidering the other plausible interpretations of the text.

The legislative history of that amendment does not

indicate that the legislature understood that the rule prior

to that amendment applied only if the testifying victim

was a child at the time of her testimony, nor does it indi-

cate that the legislature intended to broaden its scope by

changing “the child” to “the declarant” in describing the tes-

tifying victim. Rather, the legislative history suggests that

that change simply “change[d] the syntax of Section (18a)

of the hearsay rule * * * to employ consistently the term

‘declarant.’ ” Testimony, House Committee on Judiciary,

Subcommittee on Criminal Law, HB 3395, Apr 23, 1999, Ex

U (statement of Joel Shapiro).21

That legislative history also includes a statement

that the rule “is not designed to deal with adults that are

mentally operating as adults.” Tape Recording, Senate

Committee on Judiciary, HB 3395, June 16, 1999, Tape 241,

Side A (testimony of Dale Penn of the Marion County District

Attorney’s Office). But that statement was inconsistent with

a statement at the same legislative hearing that the text of

the rule “is not as limited” as the first statement suggests.

Id. (testimony of Ingrid Swenson, Oregon Criminal Defense

Lawyers Association).22

21

The 1999 bill that amended OEC 803(18a) also created a new hearsay

exception for statements made by a victim of domestic violence to a police officer

within 24 hours of the incident. Most of the discussion in the legislative history

focused on that provision, not the amendment to OEC 803(18a). See, e.g., Tape

Recording, Senate Committee on Judiciary, HB 3395, June 16, 1999, Tape 240,

Side B. In contrast, there was relatively little discussion specifically directed at

OEC 803(18a)(b).

22

In addition, the statement that the rule “is not designed to deal with

adults” could have been referring to the portion of the rule that deals with vic-

tims who are unavailable to testify at trial, not victims who testify, because the

person making the statement referred to a child “under the age of 12” (a qualifier

532 State v. Akins

The 1991 and 1999 amendments to the rule, and the

legislative history of those amendments, do not clearly demon-

strate that the legislature intended the hearsay exception to be

limited to statements made by a child victim of sexual abuse

who testifies at trial and who remains a child victim at the

time of her testimony. One thing is clear from the legislative

history: The legislature never expressly discussed whether

the rule applied if a child victim of sexual abuse turned 18 by

the time she testified at trial.23 Some of the discussions in the

legislative history as the rule evolved over time could support

the conclusion that the rule would not apply in those circum-

stances, but, taken as a whole, the legislative history does not

clearly demonstrate that the legislature intended the rule to

apply only to out-of-court statements made by child victims if

they were still children at the time of their testimony.

Legislative history can support a narrower inter-

pretation than indicated by statutory text if that history

that is relevant only to victims who are unavailable to testify at trial). The full

statement was as follows:

“I’m very concerned that the Committee not be confused that the pro-

vision about the child witness is in some way an expanded hearsay excep-

tion that involves adults. * * * [Referring to paragraph (18a)(d)], when it talks

about * * * the child witness part of this bill, it says, ‘This subsection applies

to a child declarant or an adult declarant with developmental disabilities.’

This is only designed with someone who is a child under the age of 12 or their

mental age is to the point that their ability to express themselves is very mini-

mal. This is very clear. This is not designed to deal with adults that are men-

tally operating as adults.”

Tape Recording, Senate Committee on Judiciary, HB 3395, June 16, 1999, Tape

241, Side A (testimony of Dale Penn) (emphases added).

23

The dissenting opinion does not dispute that point. It concludes from the

enactment history that the legislature intended the hearsay exception to apply

only when the child declarant remained a child at the time of trial, and it bolsters

that conclusion with statements in the legislative history showing that part of

the motivation for the rule was a concern about “the ability of young children

to testify in court.” 373 Or at 535 (Duncan, J., dissenting). That concern was

certainly present when the legislature first established the hearsay exception,

but the current version of the rule would apply to statements made by a child

declarant even if the declarant was not a “young” child at the time of trial. Under

the dissenting opinion’s reading of the rule, those statements would be admissi-

ble under the rule if the testifying declarant was 16 or 17 years old at the time of

trial. More fundamentally, the dissenting opinion does not dispute that the leg-

islature did not directly address whether statements made by a child declarant

would still be admissible under the rule if the child happened to turn 18 by the

time of trial. Thus, the legislative history is only of limited help in determining

whether the legislature intended the rule to apply to statements made by a child

declarant if the declarant turned 18 by the time of trial.

Cite as 373 Or 506 (2025) 533

“ ‘reveals that the legislature had a narrower understanding

of the term in mind, and if that narrower meaning is con-

sistent with the text, even if not compelled by it.’ ” State v.

Nascimento, 360 Or 28, 44, 379 P3d 484 (2016) (quoting State

v. Walker, 356 Or 4, 17, 333 P3d 316 (2014)). As explained

above, the legislative history of OEC 803(18a)(b) and (d), as

it evolved over time, does not reveal that the legislature had

a narrower understanding of the intended reach of the rule

than the meaning reflected in the rule’s text.

That text provides that out-of-court statements

made by a person concerning child sexual abuse are admis-

sible if the declarant testifies at trial, and nothing in para-

graph (18a)(b) of the rule says anything about the declarant’s

age at the time of her trial testimony. Paragraph (18a)(d)

of the rule, as constructed in 1999, stated that the rule

“applies to a child declarant or an adult declarant with

developmental disabilities.”24 That certainly confirms that

the “declarant” must be a “child declarant” when she made

the out-of-court statements that are offered under the rule,

but it does not necessarily mean that she also must be a

child at the time of her testimony. If that is what the legis-

lature intended, it could have said so expressly, as it did in

OEC 803(24). Nowhere in OEC 803(18a) did the legislature

specify an age requirement that applies at the time of trial

comparable to the age requirement that is specified in OEC

803(24).

In summary, we conclude that the text and con-

text of OEC 803(18a)(b) show that that hearsay exception

was intended to apply to out-of-court statements made by a

person who was a child when she made the statements and

who testifies and is available for cross-examination at trial,

even if the person is no longer a child when she testifies.

The legislative history does not establish that the legisla-

ture intended a narrower scope that would make the rule

applicable only if the victim is still a child when testifying

at trial, and such a limitation would be inconsistent with

the text of the rule. Accordingly, we agree with the Court

of Appeals that the trial court did not err in admitting

24

The rule was amended again in 2001 to extend to a declarant who is an

elderly person. Or Laws 2001, ch 533, § 1.

534 State v. Akins

evidence of M’s out-of-court hearsay statements under OEC

803(18a)(b).25

III. CONCLUSION

The trial court did not err in denying defendant’s

pretrial motion to exclude expert testimony about delayed

disclosure because such testimony could be relevant to help

the jury assess M’s credibility regardless of defendant’s con-

tentions at trial, it was not inherently too prejudicial, and it

did not categorically amount to inadmissible vouching. Nor

did the trial court err in receiving testimony about what M

had said when she disclosed the abuse at age 15. That evi-

dence was admissible under OEC 803(18a)(b) even though M

had turned 18 years of age when she testified at trial.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

DUNCAN, J., dissenting.

I write separately to address the second question

presented on review, which concerns OEC 803(18a)(b). That

statutory provision establishes hearsay exceptions, includ-

ing an exception for statements by a child declarant about

abuse that applies when the child declarant testifies and is

subject to cross-examination. The question in this case is

whether the child declarant must be a child at the time they

testify. Based on the text, context, and legislative history of

OEC 803(18a)(b), I conclude that the answer to that question

is yes. Because the majority concludes otherwise, I respect-

fully dissent from that part of the majority’s decision.

As relevant to the exception at issue in this case,

the text of OEC 803(18a)(b) provides that the exception

25

As noted above, defendant also contended in the Court of Appeals that its

interpretation of an earlier version of OEC 803(18a)(b) in Lamb, 161 Or App 66,

also supported his position. But the issue in Lamb was whether the rule “requires

the exclusion of the out-of-court statements of a 17-year-old child victim.” Id. at 69.

The Court of Appeals held that the trial court erred in excluding those statements

“when [the] victim was scheduled to testify in the proceeding and would have been

available for cross-examination.” Id. at 72. The Court of Appeals reached that con-

clusion, in part, because the 1991 amendment to OEC 803(18a)(b) removed the age

qualification that was included in the rule as it was originally enacted in 1989. Id.

at 71. We see nothing in the Court of Appeals’ opinion in Lamb indicating that the

legislature intended to exclude testimony about out-of-court statements made by a

child declarant if she has turned 18 years of age by the time she testifies at trial.

Cite as 373 Or 506 (2025) 535

applies if “the declarant” “testifies” and “is” subject to cross-

examination. It uses the term “declarant” to refer to a per-

son at the time of a trial or other proceeding where they

testify. And a related provision, OEC 803(18a)(d), limits the

exception to child declarants. That is, it modifies the term

“declarant”—which is used in the exception to describe a

person at the time of trial—with the term “child.” Thus, the

text of OEC 803(18a)(b), in context, indicates that, in order

for the exception to apply, a person must be a child at the

time they testify.

The legislative history—which shows both how the

text of OEC 803(18a)(b) has evolved and what the exception

at issue is intended to do—confirms that view. The legisla-

ture enacted OEC 803(18a)(b) in response to concerns about

the potential weaknesses of in-court testimony by children,

and it intended the exception to apply when children testify.

Indeed, as originally enacted, the exception applied if “the

child” testifies and is subject to cross-examination.

Later, OEC 803(18a)(b) was amended to apply to

other potentially vulnerable witnesses, specifically, persons

with developmental disabilities, and it provided that the

exception applied if “the child or person with developmen-

tal disabilities” testifies and is subject to cross-examination.

Thereafter, the phrase “the child or person with develop-

mental disabilities” was simplified to “the declarant.” That

is, it was amended to read, as it currently does, that the

exception applies if “the declarant” testifies and is subjec-

tion to cross-examination. But that change was not intended

to be substantive; it was explained as a change in syntax.

And, when the legislature simplified the phrase “the child

or person with developmental disabilities” to “declarant,” it

carried forward the existing requirements regarding the

status of the persons who must testify by adding a provision,

now codified in OEC 803(18a)(d), stating, “This subsection

applies to a child declarant or an adult declarant with devel-

opmental disabilities.”

Thereafter, the legislature expanded the scope

of OEC 803(18a)(b) to cover statements about abuse by

another group of potentially vulnerable witnesses: elderly

persons. And it amended OEC 803(18a)(d) to provide, “This

536 State v. Akins

subsection applies to a child declarant, a declarant who is

an elderly person as defined in ORS 124.050 or an adult

declarant with developmental disabilities.”

In keeping with the legislative intent underlying

the exception, which was to provide a path for the admis-

sion of out-of-court statements by persons who could have

difficulty testifying in court because of their age or disabil-

ity, I would conclude that the child-hearsay exception at

issue in this case applies only if the declarant is a child at

the time of their testimony.

I. DISCUSSION

The question presented regarding OEC 803(18a)

(b) is one of statutory construction. When construing a stat-

ute, this court’s task is to discern the legislature’s intent in

enacting the statute. State v. Gaines, 346 Or 160, 171-72,

206 P3d 1042 (2009); ORS 174.020(1)(a) (“In the construction

of a statute, a court shall pursue the intention of the legisla-

ture if possible.”). To do so, we examine the text and context

of the statute, as well as any relevant legislative history. Id.

If the legislature’s intent remains unclear after examina-

tion of the statute’s text, context, and legislative history, we

apply general maxims of statutory construction to resolve

the uncertainty. Id. at 172.

The text of a statute is the best evidence of the

legislature’s intent, but terms in a statute cannot be con-

strued in isolation. State v. Kellar, 349 Or 626, 634, 247

P3d 1232 (2011). The legislature’s purpose in enacting a

statute can inform our understanding of the terms that the

legislature used. State v. Harrison, 365 Or 584, 592, 450

P3d 499 (2019) (considering legislature’s purpose in enact-

ing statute when construing statute’s text). And a statute’s

legislative history can provide evidence of that purpose.

Id.; State v. Walker, 356 Or 4, 17, 333 P3d 316 (2014) (noting

that legislative history may reveal the legislature’s under-

standing of a term). In keeping with this court’s method of

statutory construction, I begin my analysis with an intro-

duction to the current text of OEC 803(18a)(b) and explain

why the statute’s text—which uses the term “declarant”

to refer to a trial witness—supports the view that the

Cite as 373 Or 506 (2025) 537

hearsay exception at issue in this case applies only to trial

witnesses who are children. I then review the legislative

history, which confirms that view.

Before turning to the current text of OEC 803(18a)

(b), however, it is worth emphasizing that the evidence code

generally prohibits the admission of hearsay. OEC 801(3)

defines “hearsay” as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” OEC

802 establishes the “hearsay rule.” It provides, “Hearsay

is not admissible except as provided in [OEC 801] to [OEC

806] or as otherwise provided by law.” The hearsay rule gen-

erally bars a witness from testifying about an out-of-court

statement in order to prove the truth of the matter asserted,

regardless of whether the out-of-court statement was made

by the witness themselves or by another person. State v.

Schiller-Munneman, 359 Or 808, 816, 377 P3d 554 (2016).

In a criminal case, for example, the hearsay rule generally

bars the complainant and all other witnesses from testify-

ing about any out-of-court statements by the complainant

about the crime, even if the complaint themselves testifies

at trial. Id. at 817-18.

A. Current Text of OEC 803(18a)(b)

The statute at issue in this case, OEC 803(18a)(b),

was enacted in 1989, and it has been amended several times

since. OEC 803(18a)(b) contains two hearsay exceptions: the

one at issue in this case, which applies when the declarant

testifies and is subject to cross-examination, and a second

one that applies when the declarant is unavailable. As men-

tioned, OEC 803(18a)(b) originally applied only to certain

hearsay statements by children, but it was amended to apply

to certain hearsay statements by persons with developmen-

tal disabilities and elderly persons.

As the scope of the statute’s hearsay exception was

expanded to cover statements other than those by children,

the terms in the statute became more generic and cross-

references to other statutes were added. As a result, the

statute became more challenging to parse. Currently, OEC

803(18a)(b) begins:

538 State v. Akins

“A statement made by a person concerning an act

of abuse as defined in ORS 107.705 or 419B.005, a state-

ment made by a person concerning an act of abuse of an

elderly person, as those terms are defined in ORS 124.050,

or a statement made by a person concerning a violation of

ORS 163.205 or 164.015 in which a person 65 years of age

or older is the victim, is not excluded by [OEC 802, the

hearsay rule,] if the declarant either testifies at the

proceeding and is subject to cross-examination, or is

unavailable as a witness but was chronologically or men-

tally under 12 years of age when the statement was made

or was 65 years of age or older when the statement was

made. However, if a declarant is unavailable, the state-

ment may be admitted in evidence only if the proponent

establishes that the time, content and circumstances of the

statement provide indicia of reliability, and in a criminal

trial or juvenile delinquency proceeding that there is cor-

roborative evidence of the act of abuse and of the alleged

perpetrator’s opportunity to participate in the conduct and

that the statement possesses indicia of reliability as is con-

stitutionally required to be admitted.”

(Emphases added.)1

OEC 803(18a)(b) uses both the past and present

tenses. It refers to a statement “made” in the past. And it

governs whether such a statement “is” excluded in the pres-

ent, that is, at the time of the court proceeding at which it is

proffered (which, for convenience, I will refer to as the time

of trial). Notably, OEC 803(18a)(b) uses the term “declarant”

in connection with events at the time of trial. Whether the

exception at issue in this case applies depends on whether

“the declarant * * * testifies at the proceeding and is sub-

ject to cross-examination.” Thus, the statute uses the term

“declarant” to refer to a person at the time of trial. That is

significant because, as mentioned, OEC 803(18a)(d) provides

that OEC 803(18a)(b) applies only to “a child declarant,

1

OEC 803(18a)(b) is lengthy, and its original text and amendments are dis-

cussed in detail below. See 373 Or at 541-43 (Duncan, J., dissenting) (setting

out original text in full); 373 Or at 546-51 (Duncan, J., dissenting) (discussing

amendments). In addition to establishing the hearsay exceptions quoted here, it

also requires that a party intending to rely on the exceptions notify adverse par-

ties in the case in advance; identifies criteria to be considered when determining

whether a declarant is unavailable; provides for the examination of the declarant

outside the presence of the jury; and identifies factors to be considered when

determining whether a hearsay statement is reliable.

Cite as 373 Or 506 (2025) 539

a declarant who is an elderly person as defined in ORS

124.050 or an adult declarant with a developmental dis-

ability.” Reading OEC 803(18a)(b) and (d) together indicates

that the term “child declarant” refers to a person at the time

of trial. That is, it indicates that the term “declarant” refers

to a person at the time of trial, and so, when “child” modifies

“declarant,” a person must be a child at the time of trial.

That is not the only possible way to read the text

of OEC 803(18a)(b). As the majority reads it, the text cre-

ates a hearsay exception for out-of-court statements made

by a person who was a child at the time the statements were

made, regardless of whether the person is an adult at the

time of trial. Although that reading is possible, it is contra-

dicted by the statute’s legislative history, including both the

evolution of the statute’s text and the legislative discussions

of its purpose, which I review next.

B. Legislative History of OEC 803(18a)(b)

Because of how OEC 803(18a)(b) has evolved, the

best way to understand the legislature’s intent regarding

the scope of the hearsay exception at issue in this case is to

trace OEC 803(18a)(b) from its original form to its current

form.2 That tracing shows that the legislature enacted OEC

803(18a)(b) in response to concerns about the difficulties

that children and other vulnerable persons might have tes-

tifying because of their age or disability. Correspondingly, it

shows that the legislature intended the exception at issue in

this case to apply only when the declarant is a child at the

time of trial.

1. 1981 - original version of OEC 803(18a) - complaint

of sexual misconduct

OEC 803(18a) was enacted in 1981. Or Laws 1981,

ch 892, § 64. It established a hearsay exception for a com-

plaint of sexual misconduct. It allowed for the admission of

2

The legislature created OEC 803(18a)(b) in 1989, Or Laws 1989, ch 881,

§ 1, and, since then, has amended the provision eight times. See Or Laws 1991,

ch 391, § 1; Or Laws 1995, ch 476, § 1; Or Laws 1995, ch 804, § 2; Or Laws 1999,

ch 945, § 1; Or Laws 2001, ch 533, § 1; Or Laws 2007, ch 70, § 12; Or Laws 2017,

ch 529, § 21; Or Laws 2023, ch 105, § 1. This discussion of the evolution of OEC

803(18a)(b) focuses on only those amendments that are relevant to the hearsay

exception at issue in this case.

540 State v. Akins

the fact that the complaint had been made; it did not allow

for the admission of the statements comprising the com-

plaint. It provided:

“The following are not excluded by [OEC 802, the

hearsay rule], even though the declarant is available as a

witness:

“* * * * *

“(18a) Complaint of sexual misconduct. A complaint of

sexual misconduct made by the prosecuting witness after

the commission of the alleged offense. Such evidence must

be confined to the fact that the complaint was made.”

2. 1989 - Creation of OEC 803(18a)(b) - child hearsay

about sexual conduct

In 1989, the legislature amended OEC 803(18a).

Or Laws 1989, ch 881, § 1. The original text of the statute

was renumbered as OEC 803(18a)(a), and the new text was

added as OEC 803(18a)(b), which is the provision at issue in

this case.

OEC 803(18a)(b) (1989) provided that certain state-

ments by a child about sexual abuse were excepted from the

hearsay rule if

“the child either testifies at the proceeding and is subject to

cross-examination or is unavailable as a witness and if the

proponent of admissibility establishes to the satisfaction of

the court outside the presence of the jury, if any, that the

time, content and circumstances of the statement provide

substantial indicia of reliability.”

OEC 803(18a)(b) (1989) (emphasis added). Thus, the text

of OEC 803(18a)(b) (1989) conveyed that the exception at

issue in this case applied only if the person who made the

statement was a child both at the time the statement was

made and at the time of trial. By its plain terms, the excep-

tion applied only if “the child” testifies and is subject to

cross-examination.

In addition to establishing new hearsay exceptions,

OEC 803(18a)(b) (1989) also supplemented the factors set out

in OEC 804, which trial courts are to consider when deter-

mining whether a potential witness is unavailable to testify.

Cite as 373 Or 506 (2025) 541

The added factors related to concerns about the ability of

“the child” to testify, including whether the child “is unable

to communicate about the offense because of fear or other

similar reason or is substantially likely, as established by

expert testimony, to suffer lasting severe emotional trauma

from testifying.” OEC 803(18a)(b) (1989) also created a pro-

cedure for trial courts to examine “the child” in chambers

when determining if the child was unavailable to testify,

and it provided that “[t]he examination shall be conducted

in the presence of the attorneys and the child’s parent, legal

guardian or other suitable adult as designated by the court.”

OEC 803(18a)(b) (1989) applied only to statements

by children under 10 years of age, which described “an act of

sexual conduct performed with or on the child by another.”

In addition, it applied only in criminal trials and juvenile

court proceedings.

Although OEC 803(18a)(b) (1989) is lengthy, it is

helpful to set it out in full so that all of its provisions can be

considered together:

“A statement made by a child victim who is under

10 years of age, which statement describes an act of sexual

conduct performed with or on the child by another, is not

excluded by [OEC 802, the hearsay rule] if the state-

ment is offered as evidence in a criminal trial or juvenile

court proceeding and if the child either testifies at the

proceeding and is subject to cross-examination or is

unavailable as a witness and if the proponent of admis-

sibility establishes to the satisfaction of the court outside

the presence of the jury, if any, that the time, content and

circumstances of the statement provide substantial indi-

cia of reliability. However, when the child is unavailable

as a witness, the statement may be admitted in evidence

only if there is corroborative evidence of the act of sexual

conduct and of the defendant’s participation in the con-

duct. No statement may be admitted under this paragraph

except upon motion of the state and unless the proponent

of the statement makes known to the adverse party the

proponent’s intention to offer the statement and the par-

ticulars of the statement no later than 15 days before trial,

except for good cause shown. For purposes of this para-

graph, in addition to those situations described in

[OEC 804], the child shall be considered ‘unavailable’

542 State v. Akins

if the child has a substantial lack of memory of the

subject matter of the statement, is presently incom-

petent to testify, is unable to communicate about the

offense because of fear or other similar reason or is

substantially likely, as established by expert testi-

mony, to suffer lasting severe emotional trauma from

testifying. Unless otherwise agreed by the parties,

the court shall examine the child in chambers and

on the record or outside the presence of the jury and

on the record. The examination shall be conducted in the

presence of the attorneys and the child’s parent, legal

guardian or other suitable adult as designated by the

court. The purpose of the examination shall be to aid the

court in making its findings regarding the child’s availabil-

ity as a witness and the reliability of the child’s statement.

In determining whether a statement possesses substantial

indicia of reliability under this paragraph, the court may

consider, but is not limited to, the following factors:

“(A) The child’s personal knowledge of the event;

“(B) The age and maturity of the child;

“(C) Certainty that the statement was made, including

the credibility of the person testifying about the statement

and any motive the person may have to falsify or distort the

statement;

“(D) Any apparent motive the child may have to falsify

or distort the event, including bias, corruption or coercion;

“(E) The timing of the child’s statement;

“(F) Whether more than one person heard the

statement;

“(G) Whether the child was suffering pain or distress

when making the statement;

“(H) The nature and duration of any alleged abuse;

“(I) Whether the child’s young age makes it unlikely

that the child fabricated a statement that represents a

graphic, detailed account beyond the child’s knowledge and

experience;

“(J) Whether the statement has internal consistency

or coherence and uses terminology appropriate to the

child’s age;

Cite as 373 Or 506 (2025) 543

“(K) Whether the statement is spontaneous or directly

responsive to questions;

“(L) Whether the statement was elicited by leading

questions; and

“(M) Whether extrinsic evidence exists to show the

accused’s opportunity to commit the act to which the child’s

statement refers.”

(Emphases added.) Thus, the plain text of OEC 803(18a)(b)

(1989) shows that the legislature was focused on the ability

of children to testify at trial. The term “child” appeared 20

times in the provision.

Of particular relevance to this case, when referring

to the declarant at the time of trial, the legislature used

the term “the child.” It provided that the exception applied

if “the child” either “testifies at the proceeding and is sub-

ject to cross-examination or is unavailable as a witness.”

The legislature’s requirement that “the child” testify clearly

shows that the legislature intended the exception to apply if

the declarant was a child at the time of trial.

That reading of the plain text of the statute is con-

firmed by its legislative history. OEC 803(18a)(b) (1989) was

enacted through Senate Bill (SB) 275 (1989). As detailed

below, the bill’s proponents repeatedly spoke about the diffi-

culties young children might have testifying in court about

abuse. They explained that young children might not be

competent to testify because of their inability to understand

the oath. They also explained that, even if competent to tes-

tify, children might have difficulty providing details, being

complete, and being consistent in their testimony. And they

explained that testifying can be traumatic for children.

They told legislators that SB 275—with its two hearsay

exceptions, one for when a child testifies and is subject to

cross-examination and the other for when a child is unavail-

able—was directed at those problems.

When SB 275 was introduced in the Senate Judiciary

Committee, professionals who worked in courts and with

children testified about the problems that children might

have testifying in court. John Collins, the Yamhill County

District Attorney, told legislators that young children might

544 State v. Akins

not understand the oath requiring them to tell the truth.

Tape Recording, Senate Committee on Judiciary, SB 275,

Feb 27, 1989, Tape 47, Side A (“What is the problem, is kids

being able to tell the judge what it means to tell the truth.”).

He also mentioned children who would be “highly trau-

matized emotionally by testifying in a courtroom setting.”

Tape Recording, Senate Committee on Judiciary, SB 275,

Feb 27, 1989, Tape 46, Side A. Betty Uchytil, the Assistant

Administrator for the Children’s Services Division, reported

that young children may lack the “ability to verbalize in the

courtroom the details of his or her abuse.” Tape Recording,

Senate Committee on Judiciary, SB 275, Feb 27, 1989, Tape

46, Side A. And Cory Streisinger, the Governor’s Legal

Counsel, explained that, “[i]n many cases * * * [t]he child,

either because of the hostility of the situation or because of

memory or simply because of very youthful age, will not be

able to testify, or will not be able to testify completely.” Tape

Recording, Senate Committee on Judiciary, SB 275, Feb 27,

1989, Tape 48, Side A. She further explained that, to rem-

edy those potential weaknesses in child abuse cases, SB 275

would permit a child’s out-of-court statements about abuse

to be introduced into evidence in certain circumstances. Id.

At the same hearing, mothers of young children

spoke about the difficulties their children might have testi-

fying in court about abuse. Candy Bartell testified:

“I believe that 10 years old and under are additionally

traumatized permanently by having to appear in court.

My 9-year-old son’s therapist has told me that she will not

allow her concurrence of him testifying because it could

make him psychotic from going beyond what he already

has to deal with in a courtroom setting that is very intimi-

dating to a young child.”

Tape Recording, Senate Committee on Judiciary, SB 275,

Feb 27, 1989, Tape 47, Side A. She also expressed concern

about whether a young child would be able to express them-

selves and provide details when testifying in a courtroom,

“an environment of a stark, impressive big room with micro-

phones and strange people asking questions.” Id.

Cite as 373 Or 506 (2025) 545

Another mother, Cynda Knoll, told legislators that

she was worried whether her young daughter would be able

to testify in front of a jury:

“But they say, with the doctor’s evidence, with all the people

she’s told, and everything, all this stuff, if she goes before

this jury and she can’t talk, which she had a hard time

doing, if she sits there before all these people and can’t talk,

that that’s it, there’s no case. No matter how many people

she told, no matter what the physical evidence is, we have

no case whatsoever if she can’t speak up and talk to that

jury. And she just barely made it through the competency

hearing.”

Tape Recording, Senate Committee on Judiciary, SB 275,

Feb 27, 1989, Tape 46, Side B.

Like the witnesses who testified in support of SB 275,

legislative staff members who summarized the bill for legisla-

tors focused on the potential difficulties children might have

testifying in court. The Senate Staff Measure Summary for SB

275 referenced cases in which “children have ‘frozen up’ in tri-

als.” Staff Measure Summary, Senate Committee on Judiciary,

SB 275-B, June 21, 1989. The House Staff Measure Summary

stated that the bill would expand “the circumstances under

which a child’s out-of-court report of sexual abuse would be

admissible in evidence,” which would allow “the judicial sys-

tem to be more sensitive to the needs of children and families

who are victims of sexual abuse while prote[c]ting the rights

of the defendant.” Staff Measure Summary, House Committee

on Judiciary, SB 275-A, June 2, 1989.

In sum, the legislative history of SB 275, which

established the hearsay exception at issue in this case,

shows that the legislature created the exception in response

to concerns about the ability of young children to testify in

court. The text of SB 275 referred to “the child” and used

that term to describe the declarant at the time of trial. In

keeping with that text, the proponents of the bill expressed

concerns about age-related potential weaknesses of chil-

dren’s testimony at trial. The legislative history shows that

the exception at issue here, which applies when a declarant

testifies in court, was prompted by concerns that, because

of age-related characteristics, children who testify in court

546 State v. Akins

might not be able to adequately express themselves. It was

intended to enable a party to proffer a child’s out-of-court

statement about abuse to support the child’s in-court testi-

mony, which could be deficient because of the child’s age-re-

lated characteristics.

3. 1991 - Amendment of OEC 803(18a)(b) to cover state-

ments by children 10 and older

The legislature amended OEC 803(18a)(b) in 1991.

Or Laws 1991, ch 391, §1. Among other changes, the legisla-

ture expanded the scope of the hearsay exceptions to cover

statements by children 10 years of age and older. As men-

tioned, when OEC 803(18a)(b) was enacted in 1989, it applied

to “[a] statement made by a child victim who is under 10 years

of age” that described an act of sexual conduct performed with

or on the child. In 1991, the legislature deleted the phrase

“who is under 10 years of age” so that OEC 803(18a)(b) would

apply to statements by children 10 years and older about such

conduct. With the deletions and additions showing, the rele-

vant part of the first sentence of OEC 803(18a)(b) read:

“A statement made by a child victim, which statement

concerns who is under 10 years of age, which statement

describes an act of sexual conduct performed with or on the

child by another, is not excluded by [OEC 802, the hearsay

rule] if the child * * * testifies at the proceeding and is sub-

ject to cross-examination[.]”

OEC 803(18a)(b) (1991) (new text in boldface; deleted text

struck-through). The amendment did not affect the text rel-

evant to the issue in this case; OEC 803(18a)(b) continued

to provide that a child’s statement was not excluded by the

hearsay rule if “the child * * * testifies at the proceeding and

is subject to cross-examination.” Thus, OEC 803(18a)(b) con-

tinued to refer to the person who had to testify at trial as

“the child.”

The 1991 amendments were the product of House

Bill (HB) 2395 (1991). Like the proponents of SB 275 that

created OEC 803(18a)(b), the proponents of HB 2395

expressed concerns about the ability of children to testify in

court. See Tape Recording, House Committee on Judiciary,

Subcommittee on Family Justice, HB 2395, Feb 27, 1991,

Cite as 373 Or 506 (2025) 547

Tape 45, Side A (statement of Rep Marie Bell) (commenting

that children older than 10 years of age might “not be able

to come to court and talk about the abuse that occurred”).

4. 1995 - Amendment of OEC 803(18a)(b) to Cover

Additional Statements, Including Statements by

Persons with Developmental Disabilities

In 1995, the legislature amended OEC 803(18a)(b)

again. As relevant here, it made two changes through two

different bills.

First, the legislature expanded the hearsay excep-

tions to apply to statements about additional forms of abuse,

specifically statements about “abuse, as defined in ORS

419B.005.” Or Laws 1995, ch 476, § 1; HB 2912 (1995). As

amended, the first sentence of OEC 803(18a)(b) read:

“A statement made by a child victim, which statement

concerns an act of abuse, as defined in ORS 419B.005,

or sexual conduct performed with or on the child by

another, is not excluded by [OEC 802, the hearsay rule] if

the child * * * testifies at the proceeding and is subject to

cross-examination[.]”

(New text in boldface.) Corresponding changes were made

throughout OEC 803(18a)(b), so that references to “sexual

conduct” were changed to references to “abuse” or “sexual

conduct.” ORS 419B.005 is a provision of the juvenile code

that defines “abuse” for the purposes of that code. The defi-

nition is not limited to child sexual abuse; it includes other

forms of child abuse. Consequently, the result of the amend-

ment was to expand the hearsay exception to statements

about abuse other than the previously covered statements

about sexual conduct.

Second, the legislature expanded all of OEC

803(18a)(b) to apply to persons with developmental disabil-

ities. Or Laws 1995, ch 804, § 2; HB 3359 (1995). All refer-

ences to “the child” were supplemented with references to a

“person with developmental disabilities.” Consequently, the

first sentence of OEC 803(18a)(b) was amended to read:

“A statement made by a child victim or person with

developmental disabilities as described in para-

graph (d) of this subsection, which statement concerns

548 State v. Akins

an act of sexual conduct performed with or on the child or

person with developmental disabilities by another, is

not excluded by [OEC 802, the hearsay rule] if the child or

person with developmental disabilities * * * testifies at

the proceeding and is subject to cross-examination[.]”

OEC 803(18a)(b) (1995) (new text in boldface).

In connection with its expansion of OEC 803(18a)(b)

to persons with developmental disabilities, the legislature

added a new paragraph to define “person with developmen-

tal disabilities”: OEC 803(18a)(d) (1995).3

The expansion of OEC 803(18a)(b) to persons with

developmental disabilities was prompted by concerns sim-

ilar to those that had led to the creation of OEC 803(18a)

(b) in the first place—that is, concerns about the abilities of

certain persons to testify in court. As one proponent of the

amendment explained, “Far too many individuals with dis-

abilities are victims of sexual abuse, and the courtroom is far

too intimidating for people with developmental disabilities.”

Exhibit N, House Committee on Judiciary, Subcommittee on

Juvenile Justice, HB 3359, Apr 3, 1995 (statement of Eugene

Organ, Oregon Disabilities Commission).

5. 1999 - Amendment of OEC 803(18a)(b) to cover addi-

tional statements and change “child or person with

developmental disabilities” to “declarant”

In 1999, the legislature amended OEC 803(18a)(b)

again. Or Laws 1999, ch 945, § 1; HB 3395 (1999). The 1999

amendment expanded the scope of the hearsay exceptions

to an additional type of statement, specifically, statements

3

OEC 803(18a)(d) (1995) provided:

“For the purposes of this subsection, ‘developmental disabilities’ means

any disability attributable to mental retardation, autism, cerebral palsy, epi-

lepsy or other disabling neurological condition that requires training or sup-

port similar to that required by persons with mental retardation, if either of

the following apply:

“(A) The disability originates before the person attains 22 years of age,

or if the disability is attributable to mental retardation the condition is

manifested before the person attains 18 years of age, the disability can be

expected to continue indefinitely, and the disability constitutes a substantial

handicap to the ability of the person to function in society.

“(B) The disability results in a significant subaverage general intellec-

tual functioning with concurrent deficits in adaptive behavior that are man-

ifested during the developmental period.”

Cite as 373 Or 506 (2025) 549

about abuse as defined by ORS 107.705, which defines

abuse for the purposes of the Family Abuse Prevention Act.

As defined by ORS 107.705, “abuse” is not limited to child

abuse; it includes certain acts “between family or household

members,” and it defines “family or household members” to

include spouses, former spouses, adult persons related by

blood, marriage or adoption, persons who are cohabiting

with each other or have cohabitated with each other, and

persons who have been involved in a sexually intimate rela-

tionship within a specified time period. The purpose of the

change was to extend OEC 803(18a)(b)’s hearsay exceptions

to statements about observations of abuse of family mem-

bers. See Tape Recording, Senate Committee on Judiciary,

HB 3395, June 16, 1999, Tape 240, Side B (testimony of Dale

Penn, Marion County District Attorney’s Office).

In addition, and of particular importance to the

statutory construction issue in this case, the 1999 amend-

ment changed the phrase “child or person with developmen-

tal disabilities” to “person” or “declarant.” As mentioned,

when the legislature amended OEC 803(18a)(b) in 1995 to

cover statements by persons with developmental disabil-

ities, it changed references to “the child” to references to

“the child or person with developmental disabilities.” Those

changes were numerous and, consequently, the text of OEC

803(18a)(b) became longer and more cumbersome. The 1999

changes of the phrase “child or person with developmental

disabilities” to “person” or “declarant” made the statute

more readable.

With the deletions and additions showing, the rele-

vant portion of the first sentence of OEC 803(18a)(b) read:

“A statement made by a child victim or person with

developmental disabilities as described in paragraph (d) of

this subsection a person which statement concerns con-

cerning an act of abuse, as defined in ORS 107.705 or

419B.005, or sexual conduct performed with or on the child

or person with developmental disabilities by another is not

excluded by [OEC 802, the hearsay rule] if the child or per-

son with developmental disabilities declarant * * * testifies

at the proceeding and is subject to cross-examination[.]”

550 State v. Akins

OEC 803(18a)(b) (1999) (new text in boldface; deleted text

struck-through). Without the deletions and additions show-

ing, the sentence read:

“A statement made by a person concerning an act of

abuse, as defined in ORS 107.705 or 419B.005 is not excluded

by [OEC 802, the hearsay rule] if the declarant * * * testifies

at the proceeding and is subject to cross-examination[.]”

(Emphases added.) Thus, OEC 803(18a)(b) (1999) provided,

as it does today, that certain statements are excluded from

the hearsay rule if “the declarant” testifies and is subject

to cross-examination. The term “declarant” replaced “child

or person with disabilities,” but the change was intended

only to simplify the text; it was not intended to be a sub-

stantive change. That is evident from the fact that, when

the legislature made the change, it simultaneously inserted

new text specifying that “[t]his subsection applies to a child

declarant or an adult declarant with developmental disabili-

ties.” OEC 803(18a)(d) (1999). Thus, the hearsay exceptions of

OEC 803(18a)(b) continued to apply only to certain types of

witnesses—specifically, children and persons with develop-

mental disabilities—who might have particular difficulties

testifying in court.

The legislative history of the 1999 amendment,

which was a product of House Bill (HB) 3395 (1999), confirms

that understanding. As a proponent of HB 3395 informed

the legislature, “[t]he bill would also change the syntax of

Section (18a) of the hearsay rule * * * to employ consistently

the term ‘declarant,’ and to clarify the application of the term

‘developmental disability.’ ” Exhibit U, House Committee on

Judiciary, Subcommittee on Criminal Law, HB 3395, Apr

23, 1999 (testimony of Joel Shapiro, Multnomah County

District Attorney’s Office). Thus, the legislative history

of HB 3395 indicates that the 1999 amendment to OEC

803(18a)(b), which, as relevant here, replaced the phrase

“child or person with developmental disabilities” with the

term “declarant,” was intended to be a syntactical change,

not a substantive change. Therefore, the 1999 amendment

did not change the fact that the hearsay exception at issue

in this case applies only if the “child” testifies, which means

Cite as 373 Or 506 (2025) 551

that the person who made the hearsay statement must be a

child at the time of the trial.

6. 2001 - Amendment of OEC 803(18a)(b) to cover state-

ments by elderly persons

Although the text of OEC 803(18a)(b) that is rel-

evant to the hearsay exception at issue in this case has

not changed since 1999, there have been other changes

that reinforce the view that OEC 803(18a)(b) is intended

to apply to persons who might have difficulty testifying in

court because of their age or disability. In 2001, the legis-

lature amended OEC 803(18a)(b) to expand the coverage of

its hearsay exceptions to statements by elderly persons. Or

Laws 2001, ch 533, § 1; SB 780 (2001). It amended the rele-

vant part of the first sentence of OEC 803(18a)(b) to read:

“A statement made by a person concerning an act of abuse

as defined in ORS 107.705 or 419B.005, a statement made

by a person concerning an act of abuse of an elderly

person, as those terms are defined in ORS 124.050,

or a statement made by a person concerning a viola-

tion of ORS 163.205 or 164.015 in which a person 65

years of age or older is the victim, is not excluded by

[OEC 802, the hearsay rule] if the declarant * * * testifies at

the proceeding and is subject to cross-examination[.]”

OEC 803(18a)(b) (2001) (new text in boldface). As before,

the hearsay exception applied if “the declarant” “testifies”

and “is” subject to cross-examination. In other words, OEC

803(18a)(b) continued to use the term “declarant” in con-

nection with present-tense verbs to describe a person at the

time of trial. And it continued to be limited to certain types

of declarants. When the legislature amended OEC 803(18a)

(b) to cover statements by elderly persons, it simultaneously

amended OEC 803(18a)(d), which describes the types of

declarants covered. Specifically, it amended OEC 803(18a)

(d) to read: “This subsection applies to a child declarant, a

declarant who is an elderly person as defined in ORS

124.050 or an adult declarant with developmental disabil-

ities.” OEC 803(18a)(d) (2001) (new text in boldface). Thus,

the legislature continued to limit OEC 803(18a)(b) to per-

sons who might have difficulty testifying because of their

age or disability.

552 State v. Akins

C. Summary

In sum, the text, context, and legislative history of

the hearsay exception at issue in this case, which applies to

child hearsay statements when the declarant testifies and is

subject to cross-examination, all support the conclusion that

the exception applies only if the declarant is a child at the

time of their testimony and cross-examination.

The relevant text of OEC 803(18a)(b) shows that

“declarant” is used to describe a person at the time of the

trial or other proceeding. It is used in connection with pres-

ent-tense verbs. The exception applies only if “the declarant”

“testifies” and “is” subject to cross-examination. That indi-

cates that the exception applies to a person’s hearsay state-

ments only if the person is a “declarant” at the time of trial,

which is significant because OEC 803(18a)(d) expressly lim-

its the application of the exception to certain types of declar-

ants, including, as relevant here, child declarants. Thus, the

text of OEC 803(18a)(b) and (d) indicate that the exception

applies only if the person who made the statement is a child

at the time of trial.

If there was any question about that reading of

the text of OEC 803(18a)(b), it is resolved by the legislative

history of the provision, which does two things. First, the

legislative history clearly shows how the term “declarant”

came to be in OEC 803(18a)(b). As detailed above, when it

was first created in 1989, the exception at issue in this case

applied if “the child” “testifies” and “is” subject to cross-

examination. That text indicated that the person who made

the statement had to be a child at the time of trial. Then,

after OEC 803(18a)(b) was expanded to cover persons with

developmental disabilities and the text of the rule became

cumbersome, the legislature simplified the text in 1999,

by replacing the phrase “child or person with developmen-

tal disabilities” with “declarant.” But that change was not

intended to be substantive. So, the legislative history regard-

ing the evolution of the text of OEC 803(18a)(b) establishes

that the exception at issue applies only when the declarant

is a child at the time of trial. Second, the legislative his-

tory clearly conveys the purpose of the provision. It shows

that the legislature intended the exception at issue here to

Cite as 373 Or 506 (2025) 553

apply when children testify. The exception was created in

response to concerns about difficulties children might have

testifying in court because of their age. Those concerns were

expressed throughout the discussions of OEC 803(18a)(b),

from its creation and through its many amendments. At

no time did the proponents of the exception state that the

exception would apply to persons who were adults at the

time of trial and, therefore, would not have the age-related

challenges to testifying that the proponents were concerned

about. Moreover, the legislature’s expansion of the exception

to other groups—specifically, persons with developmental

disabilities and elderly persons—reinforces the conclusion

that the legislature intended the exception to apply to per-

sons who might have difficulty testifying in court because of

their age or disability.

Based on the text, context, and legislative history of

OEC 803(18a)(b), I would conclude that the hearsay excep-

tion at issue in this case applies only when the person who

made the statement is a child at the time of the trial or

other proceeding where the hearsay statement is proffered.

Because the majority concludes otherwise, I respectfully

dissent.4

4

The majority relies on the second hearsay exception in OEC 803(18a)(b),

which applies if “the declarant” is unavailable and other requirements are met.

As created in 1989, the unavailability exception expressly applied to children.

OEC 803(18a)(b) provided for the admission of certain statements if “the child”

“is unavailable” and other conditions are satisfied. The legislature created the

exception in response to concerns about children being unavailable to testify

because of age-related characteristics. Moreover, when the legislature created

the exception, it also identified a child-focused process for determining unavail-

ability. Thus, when originally created, the unavailability exception expressly

applied to children and that application was consistent with the exception’s pur-

pose and context.

As discussed, when, in 1999, the legislature amended OEC 803(18a)(b)

through HB 3395, to change the phrase “child or person with developmental dis-

abilities” to “declarant,” the legislature did not intend that change to be sub-

stantive. Therefore, the unavailability exception should be construed, as it was

originally intended, to apply to persons who are children at the time of the trial

or other proceeding where their statements are proffered. Indeed, a proponent

of the 1999 change, Dale Penn of the Marion County District Attorney’s Office,

assured the legislature that HB 3395 would not expand the provision about “the

child witness” to “adults.” Referencing OEC 803(18a)(d), he stated:

“I’m very concerned that the Committee not be confused that the provision

about the child witness is in some way an expanded hearsay exception that

involves adults. * * * [Referring to paragraph (18a)(d)], when it talks about the

554 State v. Akins

James and Masih, JJ., join in this dissenting

opinion.

child part of the child witness part of this bill it says, ‘This subsection applies

to a child declarant or an adult declarant with developmental disabilities.’ ”

Tape Recording, Senate Committee on Judiciary, HB 3395, June 16, 1999, Tape

241, Side A (statement of Dale Penn). Thus, he emphasized that the change from

“child or person with developmental disabilities” to “declarant” was not intended

to change the scope of the hearsay exceptions.