State v. Beauvais

524 July 16, 2015 No. 27

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

CHAD ALLEN BEAUVAIS,

Petitioner on Review.

(CC 06FE0574SF; CA A147355; SC S062346)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 9, 2015, at Willamette

University College of Law, Salem, Oregon.

Neil F. Byl, Deputy Public Defender, Salem, argued the

cause and filed the brief for petitioner on review. With him

on the brief was Peter Gartlan, Chief Defender.

Carson L. Whitehead, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent

on review. With him on the brief were Ellen F. Rosenblum,

Attorney General, and Anna M. Joyce, Solicitor General.

BREWER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

*  Appeal from Deschutes County Circuit Court, Stephen P. Forte, Judge. 261

Or App 837, 322 P3d 1116 (2014).

Cite as 357 Or 524 (2015) 525

Case Summary: Defendant moved in limine to exclude expert witness testi-

mony concerning a diagnosis of child sexual abuse as unfairly prejudicial under

OEC 403, as well as expert witness testimony concerning the evaluative criteria

underlying that diagnosis as impermissibly commenting on the credibility of the

complaining witness. The trial court denied defendant’s motion, a jury convicted

defendant of first-degree sexual abuse, and the Court of Appeals affirmed. Held:

(1) There is sufficient physical evidence of abuse so that a medical diagnosis of

sexual abuse ordinarily is admissible under OEC 403 if physical evidence mean-

ingfully corroborates the alleged type of abuse; the expert significantly relies on

that physical evidence in making the diagnosis of sexual abuse; and the causal

relationship between the physical evidence and the diagnosis is sufficiently com-

plex such that a lay trier of fact cannot assess the connection as well as an expert.

(2) When a medical diagnosis of child sexual abuse is adequately supported by

physical evidence of abuse and is otherwise admissible, the expert’s testimony

concerning the diagnosis ordinarily can include a description of the evaluative

criteria underlying the diagnosis and the characteristics of the child that led

to the diagnosis, so long as the testimony is not a direct comment on the child’s

credibility or a statement that is tantamount to stating that the child is telling

the truth.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

526 State v. Beauvais

BREWER, J.

Defendant appeals a judgment convicting him of

a single count of first-degree sex abuse. ORS 163.427. He

assigns error to the circuit court’s denial of his motion

in limine to exclude expert witness testimony concerning a

diagnosis of child sexual abuse, as well as the evaluative

criteria underlying that diagnosis that, in defendant’s view,

impermissibly commented on the credibility of the complain-

ing witness in this case.1 The Court of Appeals affirmed

defendant’s conviction. State v. Beauvais, 261 Or App 837,

322 P3d 1116 (2014). For the reasons now explained, we

affirm the decision of the Court of Appeals and the judg-

ment of the circuit court.

I.  FACTS AND PROCEDURAL BACKGROUND

At the time of the charged incident, KS was ten

years old.2 While babysitting defendant’s son, KS and her

friend, JC, fell asleep on the living room floor of defendant’s

home. In the early morning, KS woke up to find defendant

kneeling over her with his hand down her pants, touching

her vaginal area. When a door opened down the hall, defen-

dant left the room, and KS sat up. Defendant returned to

the room and asked KS if she was okay. KS replied that she

had a headache and would go back to sleep. When defendant

left the room again, KS woke JC and told her that defendant

had touched her “private area” and that she wanted to go

home. KS called her mother and asked to be picked up from

defendant’s home. JC’s father picked the girls up and, based

on KS’s disclosure that defendant had touched her private

area, took the girls to the police station.

Later that day, White, a sexual assault nurse

examiner, examined the girls. In her examination of KS,

White found increased redness and swelling of the clitoris

and upper labial folds, increased redness in the upper and

1

Defendant also assigned error in the Court of Appeals to the denial of

his motion to sever charges and the denial of a motion for mistrial. The Court

of Appeals rejected those assignments of error, and defendant did not pursue

his challenge to those parts of the Court of Appeals’ decision before this court.

Accordingly, we do not address them on review.

2

On review, defendant challenges the trial court’s pretrial rulings. We take

the facts from the evidence brought out at the pretrial hearing. To the extent that

a dispute exists, we state the facts consistently with the trial court’s rulings.

Cite as 357 Or 524 (2015) 527

lower portions of the hymen, and some abrading of the labia.

White referred KS to the Kids Intervention and Diagnostic

Service Center (KIDS Center), a child abuse intervention

center, for a follow up evaluation. About six weeks after the

incident, Glesne, a staff interviewer, interviewed KS at the

KIDS Center, and Dr. Kyriakos performed a physical exam-

ination of KS. Following that examination, Kyriakos made

a diagnosis that KS had been sexually abused.

Defendant was charged with one count of first-

degree sexual abuse of KS.3 Before trial, defendant moved

in limine to exclude evidence of the KIDS Center evaluation.

In that motion, defendant sought to preclude Kyriakos and

Glesne from testifying “as to what [KS] told them and * * *

that in their opinion they believe that [KS] was sexually

abused.” Defendant argued that such testimony was hear-

say and without sufficient foundation. The state responded

that the evidence was admissible because it was relevant, it

would assist the trier of fact under OEC 702,4 and it should

not be excluded under OEC 403.5

In a reply brief, defendant expanded the scope of his

motion in limine by seeking to exclude “evidence of a diag-

nosis of child sexual abuse” and “any and all other evidence

that possesses the increased potential to influence the trier

of fact as scientific evidence, technical evidence, and/or other

evidence concerning specialized knowledge.” Defendant

argued that such evidence was irrelevant under OEC 401,

invalid as scientific evidence under OEC 702, and unfairly

prejudicial under OEC 403. See State v. Brown, 297 Or 404,

3

Defendant also was charged with two counts of attempted first-degree sex-

ual abuse of JC relating to a different incident. Those charges were dismissed at

trial.

4

OEC 702 provides:

“If scientific, technical or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training or education

may testify thereto in the form of an opinion or otherwise.”

5

OEC 403 provides:

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay or needless

presentation of cumulative evidence.”

528 State v. Beauvais

438-39, 687 P2d 751 (1984) (setting out test for admission of

scientific evidence). Defendant also asserted that the KIDS

Center evidence as a whole impermissibly commented on

KS’s credibility. As pertinent to the issues before us, defen-

dant argued that

“[t]he scientific, technical or other specialized knowledge

will not assist the trier of fact in understanding the evi-

dence or determining a fact in issue. Defendant will argue

that the proffered testimony does not constitute a complex

or ‘superficially bizarre’ phenomenon outside the experi-

ence of most jurors. Rather, the proffered testimony con-

cerns a straight-forward matter well within the common

experience of most jurors.”

Defendant also argued that “[a]ny such evidence would be

an impermissible comment on the credibility of another wit-

ness,” citing State v. Middleton, 294 Or 427, 438, 657 P2d

1215 (1983) (“[I]n Oregon[,] a witness, expert or otherwise,

may not give an opinion on whether he believes a witness is

telling the truth.”).

At a pretrial hearing on defendant’s motion in limine,

Kyriakos testified about the KIDS Center interview and

evaluative processes, how a diagnosis of child sexual abuse

is made, and her evaluation of KS. Kyriakos stated that,

in evaluating a child for sexual abuse, she looks for phys-

ical signs that are “diagnostic” of abuse. She also gathers

histories from the child, caregivers, and others, including

law enforcement and other referral sources. According to

Kyriakos, the KIDS Center follows accepted national and

state criteria, which, in addition to physical evidence, include

consideration of (1) consistency in the core details that the

child has given over time to law enforcement, caregivers,

and others, as well as the information the child provides at

the KIDS Center; (2) whether the child was able to give mul-

tiple, in depth, and contextual details; (3) whether the child

provided information in more than one media form, includ-

ing verbally, through drawings, and by using the child’s

own body as a reference; (4) whether the disclosure of abuse

was made spontaneously or whether the child was asked

about it first; (5) whether the child provided specific details

regarding sensory-type information, such as something that

Cite as 357 Or 524 (2015) 529

the child felt; and (6) behavioral changes.6 According to

Kyriakos, behavioral changes do not necessarily establish

that abuse occurred, but they are “concerning.”

Insofar as this case is concerned, Kyriakos testified

that she reviewed White’s report of her physical examination

of KS and noted that White had found redness, swelling,

and abrasions on KS’s vaginal area. Those physical findings

were important to Kyriakos because White had examined

KS on the day of the charged incident; Kyriakos could not

discern an explanation for the redness, swelling, and abra-

sions, other than sexual abuse. Kyriakos did not find any

physical signs of sexual abuse in her examination of KS,

but she was not surprised, because those symptoms usually

resolve within days.

Kyriakos testified at length about her application of

the evaluative criteria to KS. She stated that the core details

that KS had described were consistent with the core details

that she had recounted to police officers, her mother, and

White. In addition, KS provided multiple details, including

a description of the room and furniture where the abuse had

occurred and how defendant’s body had been positioned. KS

also described the incident through multiple media, includ-

ing a verbal description, a drawing, and by using her own

body as a reference. During the interview, KS got down

on the floor to demonstrate defendant’s position when she

woke up to find him on top of her. She also used her body

to describe where defendant had touched her. During the

physical examination, Kyriakos placed her fingers on the

outside of KS’s labia, and KS was able to tell Kyriakos that

defendant had touched her “more inside.” Kyriakos stated

that KS’s disclosure of the abuse also had been spontaneous,

in that she woke JC to tell her what had just happened and

6

Those criteria are described in the Forensic Evaluation Critical Analysis

Guide, published by the National Children’s Advocacy Center. The criteria also

are part of the Oregon Medical Guidelines for Evaluation of Sexual Abuse in

Children and Adolescents and the Oregon Interviewing Guidelines, which estab-

lish practice standards for child abuse investigations in Oregon and are followed

by the KIDS Center and other child abuse intervention centers in Oregon. In

State v. Southard, 347 Or 127, 138-39, 218 P3d 104 (2009), this court concluded

that “the methodologies that the KIDS Center used to diagnose child sexual

abuse” indicated that “the diagnosis [of child sexual abuse] possesses sufficient

indicia of scientific validity to be admissible.”

530 State v. Beauvais

then promptly contacted her mother. Furthermore, KS used

sensory details to describe the incident, stating that she had

felt a stinging sensation after defendant had touched her.

According to Kyriakos, that detail “would only likely be known

if the child had actually experienced the sensation.” Finally,

Kyriakos stated that behavioral changes that KS’s mother

had observed in KS since the incident—being more fearful,

not wanting to be alone, not wanting to sleep by herself, a

change in appetite, sadness, and withdrawal—were relevant

to her evaluation. Based on her overall evaluation, Kyriakos

testified that she had concluded to a reasonable degree of

medical certainty that KS had been sexually abused.

At the close of the pretrial hearing, defendant

objected to the testimony of Glesne and Kyriakos, as well as

the KIDS Center report and a DVD of Glesne’s interview of

KS, on the ground that the factual determination whether

KS had been sexually abused was not complex and expert

testimony was not needed. Defendant reiterated his general

objection that the KIDS Center evidence was a comment on

the credibility of the witness and that it was “just [a] tech-

nique[ ] to be able to introduce evidence to juries to bolster

the credibility of child witnesses, to convince the jury that

they should convict based upon a blanket imprimatur of

medical certainty.” According to defendant, the evaluative

criteria to which Kyriakos testified and that were discussed

in the report were “simply a shorthand way of saying that

the child is believable.”

In addition to the foregoing general objections,

defendant specifically objected to the following exchange in

Glesne’s DVD interview of KS on the ground that it was an

impermissible comment on KS’s credibility:

“Q:  Has anybody … or did anybody, I guess is a better

way of putting this, told you what to say today?

“A: No.”

The trial court denied defendant’s motion in limine.

At trial, Zancanella, the KIDS Center interviewer who

had interviewed JC, and Glesne described the criteria used in

evaluating child sexual abuse. Glesne also testified about her

interview of KS, and Kyriakos testified about the details of her

Cite as 357 Or 524 (2015) 531

examination and evaluation of KS and gave her medical diag-

nosis of child sexual abuse. Defendant did not object to any of

that testimony. Nor did defendant object to the admission into

evidence of the KIDS Center report or the DVD.

A jury ultimately convicted defendant of first-degree

sexual abuse, and the trial court sentenced him accordingly.

As noted, on appeal, defendant assigned error to the trial

court’s order denying his motion in limine. Before the Court

of Appeals, defendant reprised his pretrial arguments that

Kyriakos’s diagnosis of sexual abuse was inadmissible and

that the KIDS Center evidence explaining the bases for that

diagnosis constituted impermissible vouching for KS’s cred-

ibility. In a refinement of those arguments, defendant relied

on this court’s decision in State v. Southard, 347 Or 127,

140-41, 218 P3d 104 (2009), for the proposition that a diag-

nosis of sexual abuse that is based in part on physical evi-

dence, but also includes evidence that the complainant exhib-

ited behavior consistent with having been sexually abused,

is inadmissible; defendant also relied on this court’s decision

in State v. Lupoli, 348 Or 346, 362, 234 P3d 117 (2010), for

the proposition that, even if a diagnosis of sexual abuse is

admissible, expert witness testimony about the attributes

of a truthful statement, followed by testimony that another

witness’s statement contained those attributes of truth, is

inadmissible to explain such a diagnosis.7

The Court of Appeals affirmed the trial court’s denial

of defendant’s motion in limine. Relying in part on Southard,

that court concluded that the admissibility of a diagnosis

of sexual abuse when physical evidence of abuse is present

is subject to a balancing test under OEC 403. Beauvais,

261 Or App at 843. Applying factors that it previously had

described in State v. Ovendale, 253 Or App 620, 630, 292

P3d 579 (2012), the court concluded that the diagnosis was

admissible because: (1) the significance of the physical evi-

dence was “a complex factual determination that an expert

was better able to make than a layperson;” (2) the physical

evidence had corroborated the type of abuse alleged in this

case; and (3) Kyriakos had relied on the physical evidence in

7

The charged incident occurred in 2006. Defendant’s motion in limine was

decided in 2007. Both Southard and Lupoli were decided after the trial court

decided the motion in limine but before defendant was tried and convicted in 2010.

532 State v. Beauvais

arriving at a diagnosis that KS had been sexually abused.

Beauvais, 261 Or App at 843-44.

The Court of Appeals further concluded that the

expert testimony explaining and applying the subsidiary

principles of the sexual abuse diagnosis—the characteristics

that bear on an evaluation of a child for sexual abuse—and

KS’s specific characteristics in relation to those principles,

were “explanations for the admissible diagnosis of sexual

abuse that are not tantamount to comments on truthful-

ness and that would assist the jury in determining whether

[KS’s] complaints were well founded.” Id. at 849.

We allowed defendant’s petition for review to con-

sider the admissibility of a medical diagnosis of child sex-

ual abuse when physical evidence of abuse is present and

whether the expert testimony explaining the evaluative cri-

teria underlying the diagnosis in this case impermissibly

vouched for the credibility of KS.

II. ANALYSIS

A.  The Record on Review

As pertinent to both issues before us, we note that

defendant challenges the trial court’s pretrial denial of his

motion to exclude evidence, not the particular evidence that

was admitted at trial. That procedural posture frames our

review. To be sure, a pretrial objection to evidence can pre-

serve the issue of its admissibility for review. State v. Foster,

296 Or 174, 183-84, 674 P2d 587 (1983) (when defendant

made sufficient offer of proof of what would happen at trial

to permit trial court to rule intelligently on admissibility of

evidence and court made final ruling, “[t]here was no need

for any further procedure to preserve the assignment of

error”). However, the scope of the record on review is lim-

ited to the record before the trial court when it made the

challenged ruling. State v. Pitt, 352 Or 566, 574-75, 293 P3d

1002 (2012).

B.  Admissibility of the Medical Diagnosis of Child Sexual

Abuse

The starting point for our analysis of defendant’s

challenge to the medical diagnosis of child sexual abuse in

this case is this court’s decision in Southard. In that case,

Cite as 357 Or 524 (2015) 533

the defendant challenged a diagnosis of child sexual abuse

from a KIDS Center physician that was based entirely on

the child’s statements and history. The issue before the

court was “whether a diagnosis of ‘sexual abuse’—i.e., a

statement from an expert that, in the expert’s opinion, the

child was sexually abused—is admissible in the absence of

any physical evidence of abuse.” Southard, 347 Or at 142.

The court first concluded that a medical diagnosis of child

sexual abuse was relevant under OEC 401 and, as noted,

that the KIDS Center methodologies possessed sufficient

indicia of scientific validity for the diagnosis to be admissi-

ble under OEC 702. Id. at 138-39. However, the court held

that, in the absence of corroborating physical evidence, the

diagnosis was inadmissible under OEC 403 because its pro-

bative value was substantially outweighed by the danger of

unfair prejudice. The probative value was slight, the court

reasoned, because a diagnosis of child sexual abuse differs

from other medical diagnoses that “turn on an abstruse

matter of science,” in that it purports to determine whether

conduct—an act of sexual abuse—occurred, and that deter-

mination is often within the competence of a lay trier of fact.

Id. at 134-35. Because the diagnosis in Southard did not tell

the jury anything that it could not determine on its own, its

probative value was slight. Id. at 140.

On the other side of the scale, the court found that

the risk of prejudice was great:

“The fact that the diagnosis came from a credentialed

expert, surrounded with the hallmarks of the scientific

method, created a substantial risk that the jury may be

overly impressed or prejudiced by a perhaps misplaced aura

of reliability or validity of the evidence. * * * [T]he diagno-

sis is particularly problematic because the diagnosis, which

was based primarily on an assessment of the boy’s credibil-

ity, posed the risk that the jury [would] not make its own

credibility determination, which it is fully capable of doing,

but [would] instead defer to the expert’s implicit conclusion

that the victim’s reports of abuse are credible.”

Id. at 140-41 (citations and internal quotation marks omit-

ted). Ultimately, “the risk that the jury will defer to the

expert’s assessment outweighs whatever probative value the

diagnosis may have.” Id. at 142.

534 State v. Beauvais

This case presents an issue that Southard foreshad-

owed but did not resolve, namely, whether and under what

circumstances a diagnosis of child sexual abuse is admissi-

ble under OEC 403 when physical evidence of abuse is pres-

ent. Defendant argues that a diagnosis of child sexual abuse

that relies in part on physical evidence is inadmissible under

Southard. In defendant’s view, the probative value of such

a diagnosis is slight—even if supported by some physical

evidence—because the jury is equally capable of assessing

the physical evidence, the credibility of the child, and the

other evidence admitted at trial to determine whether the

alleged abuse occurred. Defendant asserts that, even when

a medical expert relies on physical evidence, a sexual abuse

diagnosis determines whether relatively uncomplicated

conduct—an impermissible sexual touching—has occurred,

and a jury can make that determination without expert

assistance. As defendant sees it, where physical evidence

of abuse exists, an expert should be permitted to testify

about whether that evidence is consistent with the alleged

sexual contact, but the expert’s opinion that sexual abuse

occurred does not “turn on an abstruse matter of science,”

see Southard, 347 Or at 135, and, thus, should be left to the

trier of fact.

From those propositions, defendant reasons that

Kyriakos’s diagnosis that KS was sexually abused did little

to assist the jury in this case. In addition, defendant asserts

that Kyriakos relied primarily on her own assessment of KS’s

credibility, rather than the physical evidence that White

had identified. Defendant notes that, although Kyriakos

testified that White’s physical findings were significant,

Kyriakos’s written report did not refer to those physical find-

ings. Defendant also asserts that Kyriakos expressed doubt

about the significance of White’s findings when she stated

that “perhaps” the abrasions could have occurred while KS

was bathing.8 Because the jury was able to draw its own

inferences from the physical evidence, defendant argues, the

8

Kyriakos testified at trial that the abrasions on KS’s vaginal area “per-

haps” may have been self-inflicted while KS was bathing, but Kyriakos did not

think that made sense because the abrasions would have been the result of fairly

vigorous rubbing or rubbing with something sharp such as a fingernail. Kyriakos

stated that a person likely would stop rubbing so vigorously once they began to

feel pain.

Cite as 357 Or 524 (2015) 535

diagnosis was only slightly probative, and the prejudicial

effects that troubled this court in Southard preponderated

to render the diagnosis inadmissible under OEC 403.

In response, the state contends that a medical diag-

nosis of child sexual abuse that relies in part on physical

evidence provides information to a jury that it could not eval-

uate as effectively on its own. According to the state, in rely-

ing on physical evidence to reach such a diagnosis, an expert

draws a causal connection between the allegations of abuse

and the physical evidence. The state asserts that a medical

expert is uniquely qualified to discern and explain the sig-

nificance of such a connection to a lay trier of fact. The state

argues that a diagnosis supported by physical evidence is

helpful because a layperson is not as capable of determining

whether physical findings are the result of sexual abuse, as

opposed to an alternative cause. As to prejudice, the state

notes that, in Southard, this court explained that the danger

of unfair prejudice when a medical diagnosis of child sexual

abuse is not supported by physical evidence is that the jury

will defer to the expert’s assessment of the child’s credibility.

Southard, 347 Or at 140-41. By contrast, when an expert

relies in part on physical evidence, the state asserts that the

persuasive force of the diagnosis does not rest on a credibil-

ity determination, but, rather, on the expert’s explanation

of the significance of the physical findings in combination

with the child’s medical history and the allegations of abuse.

Accordingly, the state reasons, a diagnosis of child sexual

abuse that relies in part on physical evidence is not unfairly

prejudicial.

As those propositions apply here, the state asserts

that White’s findings were an important factor in Kyriakos’s

diagnosis because Kyriakos opined that there was no rea-

sonable explanation other than sexual abuse for the injuries

to KS’s vaginal area. The state further argues that, because

Kyriakos relied on White’s findings and Kyriakos’s diagno-

sis was helpful to explain the significance of those findings

to the jury, the diagnosis was admissible.

In summary, the parties propose opposing bright

line rules: Defendant argues that a child sexual abuse diag-

nosis is never admissible because it has little probative value

536 State v. Beauvais

and is unfairly prejudicial, while the state argues that such

a diagnosis is always admissible if it is supported by some

physical evidence because, in that circumstance, its proba-

tive value is not substantially outweighed by the danger of

unfair prejudice.

As noted, the Court of Appeals determined that the

admissibility of a diagnosis of child sexual abuse when phys-

ical evidence of abuse is present remains subject to a balanc-

ing test under OEC 403. Beauvais, 261 Or App at 843. As

elaborated below, we agree with that conclusion.

OEC 403 codifies the discretionary power of a trial

judge in balancing the probative value of evidence against its

unfairly prejudicial effect. Brown, 297 Or at 442. However,

where the admissibility of scientific evidence is concerned,

this court retains its role to set legal limits that govern the

exercise of trial court authority under OEC 403. Id.; see also

Southard, 347 Or at 140 n 11. In Southard, this court set

a limit on the admissibility of a diagnosis of child sexual

abuse under OEC 403. We explained:

“Our holding today is narrow. The only question on review

is whether a diagnosis of ‘sexual abuse’—i.e., a statement

from an expert that, in the expert’s opinion, the child was

sexually abused—is admissible in the absence of physi-

cal evidence of abuse. We hold that where, as here, that

diagnosis does not tell the jury anything that it could not

have determined on its own, the diagnosis is not admissible

under OEC 403.”

Southard, 347 Or at 142.9 Significantly, this court in

Southard did not hold that the mere existence of support-

ing physical evidence would render a medical diagnosis

of child sexual abuse per se admissible. Nor did the court

hold that such a diagnosis is never admissible, even if sup-

ported by physical evidence. Instead, the court suggested

9

In Lupoli, this court described Southard’s holding as follows:

“[A] statement from an expert that, in the expert’s opinion, a child had been

sexually abused was inadmissible in the absence of physical evidence of

abuse, because it does not tell the jury anything that the jury could not have

determined on its own, and, therefore, the probative value of any such tes-

timony is outweighed by the danger of unfair prejudicial effect under OEC

403.”

Lupoli, 348 Or at 357.

Cite as 357 Or 524 (2015) 537

that the determination of admissibility in a particular case

will depend, among other things, on the extent to which the

diagnosis tells the jury something that it could not deter-

mine as well on its own and the risk that the trier of fact

will improperly defer to what it reasonably could perceive

to be a credibility-based evaluation by the expert. See id.

(holding that “where, as here, [a medical diagnosis of child

sexual abuse] does not tell the jury anything that it could

not have determined on its own, the diagnosis is not admis-

sible under OEC 403”).10

In light of the concerns expressed in Southard,

we conclude that the mere presence of physical evidence

of abuse is not enough to make a diagnosis of child sexual

abuse automatically admissible, when that diagnosis other-

wise rests on what a jury reasonably could perceive to be a

credibility-based evaluation. Rather, the physical evidence

must have more than a speculative or insubstantial connec-

tion to the diagnosis; that is, the evidence must meaning-

fully corroborate the diagnosis. In addition, the expert must

10

In reaching its conclusion, this court in Southard cited several decisions

from other jurisdictions holding that a medical diagnosis on the “ultimate issue

of sexual abuse” is not helpful to the jury and is inadmissible. Southard, 347 Or at

141, 143. Consistently with Southard, each of those decisions involved diagnoses

that were not supported by physical evidence of abuse. See, e.g., United States v.

Charley, 189 F3d 1251, 1257, 1265, 1271 (10th Cir 1999) (repeatedly emphasizing

lack of physical evidence and describing opinions as based “largely” on witness

statements); United States v. Whitted, 11 F3d 782, 785-86 (8th Cir 1993) (expert

was merely reciting the allegation of the alleged victim “in the guise of a medical

opinion”); State v. Iban C., 275 Conn 624, 633, 639, 881 A2d 1005 (2005) (empha-

sizing that diagnosis was based on witness reports, not on physical examination);

Atkins v. State, 243 Ga App 489, 491, 495-96, 533 SE2d 152 (2000) (expert was

unable to opine whether abuse had occurred “based on the current absence of

physical evidence of molestation”); State v. Bantangan, 71 Haw 552, 554, 558,

799 P2d 48 (1990) (noting at outset that “[t]here was no evidence of physical

injury and no third-party witnesses to these incidents,” and ultimately holding

that expert’s “conclusory opinion that abuse did occur and that the child victim’s

report of abuse is truthful and believable is of no assistance to the jury”).

Other courts have held that an expert medical witness may render an opinion

that sexual abuse has in fact occurred if the state establishes physical evidence

consistent with sexual abuse. See, e.g., State v. Hammett, 361 NC 92, 637 SE2d

518 (2002) (“[T]he interlocking factors of the victim’s history combined with the

physical findings constituted a sufficient basis for the expert opinion that sexual

abuse had occurred.”); Warner v. State, 144 P3d 838, 860 (Okla Crim App 2006)

(testimony of physician that child victim had suffered physical and sexual abuse

was admissible, where diagnosis was based upon on his observations of victim’s

injuries, and his testimony assisted jury in understanding cause of injuries found

on victim).

538 State v. Beauvais

significantly rely on the physical evidence in making the

diagnosis, so that the evidence is neither incidental nor tan-

gential to the diagnosis. Finally, the diagnosis must involve

a complex factual determination “that a lay person cannot

make as well as an expert.” See Southard, 347 Or at 140.

As the causal relationship between physical evidence and

a diagnosis becomes more complex, that evidence and the

expert’s interpretation of it increasingly provide jurors with

information that is beyond their common experience. See id.

at 134-35. The issue is not whether the expert’s path of rea-

soning necessarily is beyond the competence of all lay peo-

ple. In some cases, the causal connection between physical

evidence and a diagnosis of child sexual abuse may be suffi-

ciently complex, even though not entirely abstruse, such that

expert testimony will assist the trier of fact. See Middleton,

294 Or at 435 (“[T]he test is whether the expert’s testimony,

if believed, will be of help or assistance to the jury.” (Citation

omitted.)).

When those foundational requirements are satis-

fied, the probative force of the diagnosis is more likely to

derive from the strength of the causal connection between

the physical findings and the diagnosis rather than from the

expert’s assessment of the child’s credibility. We therefore

hold that, when a jury otherwise reasonably could perceive

a medical diagnosis of child sexual abuse to be based on a

credibility determination, the diagnosis nevertheless tells

the jury something that it is not equally capable of determin-

ing on its own if (1) physical evidence meaningfully corrob-

orates the alleged type of abuse; (2) the expert significantly

relies on that physical evidence in making the diagnosis of

sexual abuse; and (3) the causal relationship between the

physical evidence and the diagnosis is sufficiently complex

such that a lay trier of fact cannot assess the connection as

well as an expert.

The trial court could have determined that the first

two requirements were satisfied in this case. With respect to

corroboration, KS stated that defendant touched and rubbed

her vaginal area with his hand. White’s examination report

described redness, swelling, and abrasions of KS’s vaginal

area. Kyriakos testified that she could discern no explana-

tion for KS’s injuries other than the alleged sexual abuse.

Cite as 357 Or 524 (2015) 539

With respect to reliance, Kyriakos testified in the pretrial

hearing that she had reviewed White’s report before she

had evaluated KS and that she had considered White’s find-

ings in reaching her diagnosis. The documented redness,

swelling, and abraded areas were “highly concerning” to

Kyriakos, because they were observed on the same day as

the incident and, again, she could discern no explanation for

them other than sexual abuse.11

The trial court also could have determined that the

third requirement was satisfied in this case. Jurors could

appreciate that there were various possible causes of the

redness, swelling, and abrasions found on KS’s vaginal

area, but they would not necessarily know the likely cause

of that physical evidence. Kyriakos’s testimony about the

significance of the physical evidence involved the applica-

tion of specialized medical knowledge to diagnostic facts;

it was not based on criteria that laypeople are expected to

use in their ordinary experience, but, rather, on a medical

understanding of a child’s physiology. Thus, the causal con-

nection between the physical findings on which Kyriakos

relied and her diagnosis of child sexual abuse was suffi-

ciently complex that the trial court could have determined

that that expert testimony would assist the jury in assess-

ing that connection.

In sum, the trial court could have concluded that the

diagnosis of sexual abuse told the trier of fact something that

it could not determine as well on its own. Further, because

the diagnosis was based in meaningful part on corroborative

physical findings, the trial court could have concluded that

the danger of unfair prejudice described in Southard—that

the jury improperly would defer to the expert’s assessment

of the complaining witness’s credibility—was correspond-

ingly reduced. On balance, therefore, we conclude that the

trial court did not abuse its discretion in determining that

the probative value of Kyriakos’s diagnosis of sexual abuse

was not substantially outweighed by the danger of unfair

11

We reject defendant’s assertion that Kyriakos did not rely on White’s phys-

ical findings as a matter of law because she said that “perhaps” the injuries could

have been the result of KS bathing. Kyriakos made it clear that she did not think

that was a possibility.

540 State v. Beauvais

prejudice under OEC 403.12 Because the diagnosis also was

relevant and valid scientific evidence, it follows that the trial

court did not err in admitting it.

C.  Admissibility of Evaluative Criteria Underlying the

Diagnosis of Sexual Abuse.

In his second assignment of error, defendant asserts

that, even if Kyriakos’s diagnosis that KS had been sexu-

ally abused was admissible, the trial court erred in reject-

ing his pretrial challenge to the KIDS Center evidence that

explained the bases for that diagnosis because that evidence

impermissibly commented on the credibility of KS. Before

the trial court, defendant based his argument on the long-

standing principle that a witness may not give an opinion

on the truthfulness or credibility of another witness. See,

e.g., Middleton, 294 Or at 438; State v. Milbradt, 305 Or 621,

629, 756 P2d 620 (1988) (stating that assessment of cred-

ibility of witness is for trier of fact). At the pretrial hear-

ing, defendant argued that testimony regarding the evalu-

ative criteria used by Kyriakos and described in the KIDS

Center report impermissibly commented on the credibility

of KS because those criteria were “simply ways to determine

whether the child is being deceptive or has been coached

or has been contaminated.” In defendant’s view, the KIDS

Center experts would be “telling the jury, in essence” that,

“based on [the] use of the criteria * * * [KS] is believable.”13

The only specific evidence that defendant challenged on

that ground was the part of the DVD interview in which

Glesne asked KS if anyone had told her what to say, and

KS answered, “No.” Defendant did not object—either at the

12

We need not determine whether, on the record before us, the trial court

would have erred if it had excluded the diagnosis under OEC 403. We reserve

for another day the question whether, depending on a trial court’s findings of

case-specific preliminary issues of fact in a close case, this court would defer to

the court’s decision either to admit or exclude a diagnosis of child sexual abuse.

See State v. O’Key, 321 Or 285, 320 n 45, 899 P2d 663 (1995) (expressing con-

cern about lack of uniformity in trial court decisions concerning the admissi-

bility of scientific evidence, particularly where “the preliminary facts are not

case-specific”).

13

On review, the state asserts that defendant made a generalized pretrial

objection to the KIDS Center report that is unavailing because much of the report

was “clearly admissible.” Because we understand defendant’s objection to the

report to have focused on the evaluative criteria that Kyriakos used in this case,

we deem the objection to be sufficiently specific to address that issue.

Cite as 357 Or 524 (2015) 541

pretrial hearing or at trial—to any other specific statements

made by the KIDS Center experts in their testimony, in the

KIDS Center report, or in the DVD of the interview of KS.

Defendant has further refined his argument on

appeal based on this court’s decisions in Southard and

Lupoli. In Southard, this court was careful to point out that

its decision “[did] not resolve[ ] whether any subsidiary prin-

ciples that inform [the child sexual abuse] diagnosis are

themselves admissible.” Southard, 347 Or at 142. In Lupoli,

the court took on that question. The expert witnesses in

Lupoli explained that, in making a diagnosis of sexual

abuse in the absence of physical evidence, they had eval-

uated the manner in which the child victim had reported

the incident and whether the victim’s disclosures had been

“clear,” “appropriate,” “detail[ed],” “consistent,” “developmen-

tally appropriate,” made in such a way that “you think that

a kid is telling it like it is,” and had not reflected risk factors

such as “inappropriate sexual knowledge.” Lupoli, 348 Or at

353-56. The defendant did not object to the diagnosis of

sexual abuse itself. He did, however, object to testimony

explaining the bases for the diagnosis on the ground that it

amounted to improper vouching by the experts for the vic-

tim’s credibility. Id. at 356.

Citing Middleton, this court agreed with the defen-

dant. The court determined that, in the absence of physical

evidence, such testimony necessarily is based on an assess-

ment of the child’s credibility. Because the testimony could

not be meaningfully separated from that context, the court

held that it was inadmissible. Lupoli at 362. The court also

explained, however, that, “ordinarily,” an expert witness

may explain the basis for the expert’s diagnosis, as long

as the diagnosis itself is admissible. Id. at 361. The court

further observed that the parts of the challenged expert

testimony in Lupoli “might be admissible in many circum-

stances, and perhaps even in this case.” Id. As examples, the

court identified the expert’s assessment of: (1) whether the

particular victim’s statements are developmentally appro-

priate; (2) the particular victim’s demeanor and changes in

demeanor; (3) the particular victim’s disclosure as sponta-

neous and including descriptive details; and (4) the general

circumstances that point to a child’s suggestibility or the

542 State v. Beauvais

possibility that the child has been coached. Id. Such assess-

ments, the court explained, are “the kind of expert opinion

that can assist a jury” and are not impermissible vouching

on their own. Id.

On review, defendant focuses his argument on the

trial testimony and report of Kyriakos, as well as the trial

testimony of Glesne and Zancanella relating to certain attri-

butes in a child’s account that they are taught to look for,

including spontaneous recall, consistency in core details,

the use of sensory details, and the use of the child’s body or

a drawing in describing what happened. However, as noted,

because defendant’s only pertinent objections in this case

were made in his motion in limine and related argument at

the pretrial hearing, and defendant has assigned error to

only the denial of that pretrial motion, our review is confined

to the pretrial record. See Pitt, 352 Or at 574-75 (sufficiently

developed pretrial objection is sufficient to preserve error

in absence of an objection to trial testimony, but court eval-

uates issue based on record made before trial court when

it issued order); see also State v. Perry, 347 Or 110, 116-17,

218 P3d 95 (2009) (noting focused inquiry on appeal when

defendant did not object to discrete pieces of evidence during

trial or assign error to any ruling occurring after jury was

empanelled, but instead rested argument on trial court’s

ruling following pretrial hearing). Accordingly, we exam-

ine defendant’s argument that the evaluative criteria that

the KIDS Center uses generally and that Kyriakos used in

making her diagnosis in this case amounted to impermis-

sible comments on KS’s credibility through the lens of his

pretrial objections to evidence pertaining to those criteria.

As noted above, Kyriakos reached a diagnosis that

was based on physical evidence and other evaluative crite-

ria, but she did not directly testify that KS was credible.

Instead, in her report and at the pretrial hearing, Kyriakos

testified as to the criteria that bear on an evaluation of a

child for sexual abuse—consistency of core details; informa-

tion given in more than one media form; multiple, contex-

tual, and in-depth details; spontaneity; and sensory details.

In applying those criteria to KS’s circumstances, Kyriakos

testified that KS had been spontaneous and consistent in

her disclosures, that she had used words, her body, and a

Cite as 357 Or 524 (2015) 543

drawing to describe the abuse, and that she had been able to

communicate sensory details. The issue is whether that opin-

ion evidence impermissibly commented on KS’s credibility.

A direct comment on the credibility of a witness or a

statement that is “tantamount” to stating that another wit-

ness is truthful is not admissible, even if it is offered as part

of a discussion of an admissible medical diagnosis. See, e.g.,

State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (expert

testimony that there was no indication that witness had

been “coached” was impermissible comment on credibility);

Milbradt, 305 Or at 629-30 (an expert’s opinion that a wit-

ness is not deceptive, could not lie without getting tripped

up, and would not betray a friend is tantamount to express-

ing the opinion that the witness is telling the truth, and is

not permissible). Because none of the KIDS Center evidence

offered at the pretrial hearing involved a direct opinion that

KS was truthful, the precise issue before us is whether any

of that evidence nevertheless was “tantamount” to vouching

for her credibility.

This court has not explained what is meant by a

statement that is “tantamount” to stating that another wit-

ness is truthful, as the court identified in Keller. However,

the statements that this court deemed improper in Milbradt

and Keller provide helpful illustrations. Even though the

experts in those cases did not expressly opine as to the

truthfulness of the complaining witnesses, the challenged

statements—that the witnesses had not been “coached” and

were not “deceptive”—are commonly understood ways of sig-

naling a declarant’s belief that a witness is telling the truth.

To be sure, stating that a person has not been coached or is

not deceptive is tantamount to, the equivalent of, and the

same as stating that the person is truthful.

Middleton furnishes a contrasting example. In that

case, the complaining witness, a 14-year old girl, initially

reported that her father had raped her. Two months later,

she claimed that she had lied about the rape so that she

could move out of her parents’ house. At trial, however, she

testified that the rape did occur as originally reported. The

trial court admitted testimony from two social workers

who had interviewed the child and who testified as to “the

544 State v. Beauvais

behavior of the type of children who have reported a claim of

rape by a family member and whether the [complaining wit-

ness’s] behavior was consistent with what [was] described as

typical behavior.” Middleton, 294 Or at 433. That testimony

included statements that the expert “found [the victim’s]

behavior very much in keeping with children who have com-

plained of sex molestation at home,” id. at 432 n 5, and that

the victim’s behavior of retracting a report was “a very com-

mon kind of thing to happen * * * [and] very typical for a

teenage sex abuse victim,” id. at 433-34 n 6.

The significance of the recantation as an indice of

the complaining witness’s credibility was hotly contested in

Middleton. The challenged testimony in that case was rele-

vant to show that what appeared to be unusual behavior for

a victim of sexual abuse was not, in fact, all that unusual.

That is, the testimony explained that the victim’s recan-

tation was not uncommon. The fact that the jury might

further infer from that testimony that the particular com-

plainant in that case had been truthful about the abuse did

not render the testimony inadmissible. Id. at 435. As the

court observed:

“It is true that if the jurors believed the experts’ testimony,

they would be more likely to believe the victim’s account.

Neither of the experts directly expressed an opinion on

the truth of the victim’s testimony. Much expert testimony

will tend to show that another witness either is or is not

telling the truth. This, by itself, will not render evidence

inadmissible.”

Id. (citation omitted). In Middleton, the suggestion in the

expert’s statement that the complaining witness was telling

the truth was more remote than the inferences in Milbradt

and Keller; when the expert in Middleton informed the jury

that victim recantation is not unusual, the primary effect

of the statement was to show that recantation does not nec-

essarily mean that a complainant is untruthful, which is

not tantamount to, the equivalent of, or the same as stating

that the particular complainant in that case was telling the

truth. See also Perry, 347 Or at 118-19, 126 (holding evidence

that some children who have been abused may delay disclos-

ing abuse admissible, when presented to disprove claim that

delay in reporting demonstrates that no abuse occurred).

Cite as 357 Or 524 (2015) 545

Admittedly, it is not always easy to draw the line

between an inadmissible statement that is tantamount to

a direct comment on the credibility of a witness and an

admissible statement that is relevant for a different rea-

son but that tends to show that a witness is telling the

truth. However, that difference is not all that distinguishes

Middleton from Milbradt and Keller. As important was the

fact that this court deemed the recantation in Middleton to

be sufficiently beyond the ordinary experience of a lay finder

of fact such that expert testimony would “explain[ ] * * *

superficially bizarre behavior by identifying its emotional

antecedents.” Middleton, 294 Or at 436; see also id. at 437

(testimony was admissible because it would help jury “make

a more informed decision in evaluating the credibility of a

testifying child”). No similar assistance was provided either

in Milbradt or Keller, where this court implicitly decided

that the credibility determination was not sufficiently com-

plex to conclude that expert testimony would assist, rather

than impermissibly influence, the jury in making its own

assessment.

In short, our prior decisions stand for the proposi-

tion that, to be admissible, expert testimony must assist—

not undermine—the jury’s own assessment of witness cred-

ibility. Expert testimony that provides jurors with useful

information in making their own credibility assessment

ordinarily is admissible, as long as it is not either a direct

comment on the credibility of a witness or tantamount to a

direct comment on the credibility of a witness.14 Consistently

14

We reiterate that, even where a credibility determination involves complex

factual components, there are other legal limits on the admissibility of expert tes-

timony bearing on that determination. In State v. Hansen, 304 Or 169, 176, 743

P2d 157 (1987), also a child sex-abuse case, this court held that expert testimony

offered to explain a child’s denial of the alleged abuse could not include testimony

regarding the “grooming” techniques used by child abusers. The court explained

that testimony pertaining to the typical responses of sexually abused children,

“arguably is admissible * * * because it might assist the trier of fact to under-

stand the student’s initial denial. But the specific techniques used by some

child abusers ‘to get close to the victim,’ which may result in the child’s emo-

tional dependence on the abuser, are irrelevant to the effect the dependence

has on the child’s willingness to implicate the abuser. It is the emotional

dependence, not the specific acts that produce it, that helps to explain the

child’s behavior.”

Id. at 175-76. In State v. Stevens, 328 Or 116, 970 P2d 215 (1998), the court elab-

orated on its reasoning in Hansen:

546 State v. Beauvais

with that principle, this court stated in Lupoli that an expert

witness ordinarily can describe the subsidiary principles—

that is, the evaluative criteria—underlying an admissi-

ble diagnosis of child sexual abuse. Lupoli, 348 Or at 361.

Those criteria include the general characteristics that the

expert looks for in examining a child for sexual abuse and

necessarily include characteristics that permit the expert to

assess the validity of the allegation. See id. at 362.

Because this court in Lupoli concluded that, in the

absence of a diagnosis supported by physical evidence, the

challenged evidence in that case constituted impermissi-

ble vouching, the court’s discussion of the admissibility of

evidence pertaining to the evaluative criteria underlying

an admissible diagnosis of sexual abuse was not, strictly

speaking, necessary to its decision. However, as the Court

of Appeals noted, Lupoli “strongly suggests” that, when a

diagnosis of sexual abuse is admissible because it is ade-

quately supported by physical evidence, “expert opinion is

not ‘ultimately and only’ based on credibility, [Lupoli, 348

Or at 362], and those types of assessments that are offered

in support of a diagnosis and that do not constitute [imper-

missible] ‘vouching’ are ‘ordinarily’ admissible—that is,

they are admissible” if the underlying diagnosis of sexual

abuse is itself admissible. Beauvais, 261 Or App at 847. We

now endorse that “strong” suggestion, and so hold. When

a medical diagnosis of child sexual abuse is adequately

supported by physical evidence of abuse and is otherwise

admissible, short of a direct comment or a statement that is

tantamount to stating that the child is telling the truth, the

expert’s testimony concerning the diagnosis ordinarily can

include a description of the evaluative criteria underlying

the diagnosis and the characteristics of the child that led to

the diagnosis. See Lupoli, 348 Or at 362.

“Although Hansen indicates that testimony that describes the process of vic-

timization may be inadmissible in some circumstances, either because it is

irrelevant or unduly prejudicial, that case does not hold that such testimony

is, in all circumstances, inadmissible. Hansen involved the testimony of an

expert who purported to explain the seemingly abnormal responses of a cer-

tain class of victims to a particular type of criminal behavior. In general,

such experts can and must do so without providing details of the victimiza-

tion process: Those details are irrelevant to the expert’s subject matter and,

as such, rarely will pass the balancing test of OEC 403.”

Stevens, 328 Or at 127.

Cite as 357 Or 524 (2015) 547

As applicable here, an expert’s description of a wit-

ness’s “spontaneous and descriptive details in her state-

ments” is permissible. Id. Similarly, generally speaking,

testimony that a witness’s statements were consistent with

earlier statements that the witness made does not impermis-

sibly vouch for the witness’s credibility. State v. Viranond,

346 Or 451, 461, 212 P3d 1252 (2009). In combination,

Lupoli and Viranond support the admission in this case of

Kyriakos’s testimony about the following evaluative crite-

ria: consistency of core details; information given in more

than one media form; multiple, contextual, and in-depth

details; and spontaneity. Only one of the evaluative criteria

that defendant challenges has not been at least implicitly

approved in this court’s previous decisions, namely, evidence

of an expert’s reliance on a witness’s ability to describe sen-

sory details. We also conclude, however, that Kyriakos’s dis-

cussion of that criterion did not cross the line in this case.

Unlike the impermissible vouching in Milbradt and Keller,

Kyriakos’s testimony about the sensory details contained in

KS’s statements was not a direct comment on KS’s credi-

bility, nor was it tantamount to stating that KS was tell-

ing the truth. Instead, it showed that KS previously had

experienced a stinging sensation and therefore knew how

to describe it. That information was helpful to the jury in

making its own assessment of KS’s credibility.

In sum, Kyriakos’s testimony about the evaluative

criteria that she used in reaching her admissible diagnosis

of sexual abuse did not constitute impermissible vouching,

but, rather, assisted the jury in making their own assess-

ment of KS’s complaint. Accordingly, the trial court did not

err in rejecting defendant’s pretrial challenge to the por-

tions of Kyriakos’s testimony and the KIDS Center report

in which she discussed those evaluative criteria and their

application to KS’s evaluation.

With regard to the sole objection that defendant

made to specific evidence at the pretrial hearing, we con-

clude that asking KS whether anyone told her what to say

during her interview at the KIDS Center, followed by her

negative answer to that question, was not an impermissi-

ble comment on KS’s credibility. Although an expert’s state-

ment that “[t]here was no evidence of leading or coaching”

548 State v. Beauvais

is impermissible vouching, because it “amounts to testimony

that the child was credible,” Keller, 315 Or at 285, that is

not what happened here. When the interviewer asked KS

whether anyone had told her what to say during her inter-

view at the KIDS Center, the interviewer was attempting to

determine whether KS had been coached. The interviewer

did not state—nor did she imply—whether she believed

that KS had been coached or whether she believed that KS

was telling the truth. Ordinarily, general descriptions of

“the circumstances that can point to a child’s suggestibility

or the possibility that the child has been coached” are the

types of expert opinions that would assist the jury and are

not impermissible vouching. Lupoli, 348 Or at 362. Unlike

the expert’s statement in Keller, the exchange between the

interviewer and KS was not a comment on KS’s credibil-

ity; rather, it presented a basis for the jury to determine for

itself whether KS had been coached. Accordingly, the trial

court did not err in admitting that evidence.

III. CONCLUSION

To reiterate, there is sufficient physical evidence

of abuse so that a medical diagnosis of sexual abuse ordi-

narily is admissible under OEC 403 if (1) physical evidence

meaningfully corroborates the alleged type of abuse; (2) the

expert significantly relies on that physical evidence in mak-

ing the diagnosis of sexual abuse; and (3) the causal rela-

tionship between the physical evidence and the diagnosis

is sufficiently complex such that a lay trier of fact cannot

assess the connection as well as an expert. When those fac-

tors are present, the diagnosis tells the jury something that

it could not determine as well on its own; thus, the probative

value of the diagnosis ordinarily will not be substantially

outweighed by the danger of unfair prejudice. In this case,

because those factors were present, the trial court did not

err in admitting the diagnosis.

Insofar as defendant’s second assignment of error is

concerned, the trial court did not err in denying defendant’s

motion in limine to generally exclude the KIDS Center evi-

dence that explained the evaluative criteria for the diagno-

sis of sexual abuse on the ground that the evidence imper-

missibly commented on the credibility of the complaining

Cite as 357 Or 524 (2015) 549

witness. Nor did the court err in rejecting defendant’s sole

specific pretrial challenge on that ground to a part of that

evidence.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.