State v. Smith

                                      268

 Submitted May 11, 2020; convictions on Counts 1, 2, 3, 4, and 5 reversed and
 remanded, remanded for resentencing, otherwise affirmed February 10, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  DONEVIN MICHAEL SMITH,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      17CR57409; A168022
                                   

     Defendant appeals from a judgment of conviction for multiple sex offenses
that occurred when he was 15 years old. He contends that the trial court erred
in denying his motion to dismiss two counts that were first filed in juvenile court
but subsequently refiled in adult court. He argues that the statutory process by
which he was automatically waived into adult court violated his procedural due
process rights by stripping him of the privileges of juvenile court without hearing. Defendant also argues that the trial court erred in excluding certain expert
testimony from his trial. Applying the then-controlling law in State v. Black, 

, 

 (2017), rev’d, 

, 

 (2019), the trial
court had ruled that testimony that critiqued specific child forensic interviews
at issue in the case was impermissible vouching. The state argues only that the
issue was not preserved. Held: The trial court did not err in denying defendant’s
motion to dismiss, because defendant did not have a procedural due process right
to a hearing in juvenile court. However, defendant adequately preserved his
arguments regarding the excluded expert testimony, and the trial court erred
by excluding that testimony. The error was harmless as to two counts, Counts
6 and 7.
    Convictions on Counts 1, 2, 3, 4, and 5 reversed and remanded; remanded for
resentencing; otherwise affirmed.



   Ricardo J. Menchaca, Judge.
   Ryan Scott filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   SHORR, J.
   Convictions on Counts 1, 2, 3, 4, and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                                             269

           SHORR, J.
         Defendant appeals from a judgment of conviction
for multiple sex offenses stemming from allegations that
he sexually abused his younger sister and cousin when he
himself was a minor of 15 years old. Defendant raises five
assignments of error. In the first, he contends that the trial
court erred in denying his motion to dismiss two counts that
were first filed in juvenile court but subsequently refiled as
Measure 11 offenses in adult criminal court pursuant to
ORS 137.705(2) (2015) and ORS 137.707 (2015).1 He argues
that the statutory process by which he was automatically
waived into adult court violated his procedural due process
rights by stripping him of the privileges of juvenile court
without the process of a hearing. For reasons we explain
later, we reject defendant’s first assignment and conclude
that the trial court did not err in that regard.
         In his second assignment, defendant argues that
the trial court erred in excluding certain defense expert
testimony from his jury trial. Applying the then-controlling
law in State v. Black, 

, 

 (2017)
(Black I), rev’d, 

, 

 (2019) (Black II),
the trial court ruled that it was permissible for the expert to
speak generally about best practices for child forensic interviews, but that certain testimony that appeared to apply
those best practices to critique the specific child interviewing at issue in the case was tantamount to vouching and
was impermissible. Black I was subsequently reversed by
the Supreme Court, and we now understand the type of testimony at issue to be admissible. Black II, 

.
The state argues only that the issue was not preserved. We
conclude that the issue was preserved and agree that, under
the more recently announced rule in Black II, the trial court
erred by excluding the relevant testimony. However, we conclude that the error was harmless as to Counts 6 and 7, and,
thus, we reverse the convictions for Counts 1 through 5 only.
As a result, we do not need to reach defendant’s third and
    1
      Throughout the remainder of this opinion, all references to ORS 137.705
and ORS 137.707 are to the 2015 version, which was in effect at the time of the
events at issue in this case. The statute has since been amended to, among other
things, eliminate the mandatory adult prosecution of 15-, 16-, and 17-year-old
minors for certain serious felonies. See Or Laws 2019, ch 634, §§ 4-5.
270                                              State v. Smith

fourth assignments, which pertain to now moot alleged sentencing errors affecting those reversed counts. Finally, we
reject defendant’s fifth assignment of error without further
written discussion.

         I. FIRST ASSIGNMENT OF ERROR—
            WAIVER INTO ADULT COURT

A. Facts

         The facts pertinent to defendant’s first assignment of error are mainly procedural and undisputed. The
Washington County Juvenile Department initially filed a
petition against defendant, then 15 years old, alleging a
single count of attempted sexual abuse in the first degree
against SS, his 10-year-old cousin. The juvenile court held
a preliminary hearing, and defendant was conditionally
released to his father. Further proceedings occurred in
the juvenile case for the next several months. Defendant
was later indicted on eight separate counts in Washington
County Circuit Court. Counts 6, 7, and 8 pertained to the
same victim, SS, and the same incident as the conduct at
issue in the juvenile petition. However, instead of attempted
sexual abuse in the first degree, the crime committed
against SS alleged in the juvenile petition, the new criminal
indictment alleged two counts of sexual abuse in the first
degree and one count of unlawful sexual penetration in the
first degree. Unlike the previous crime charged in juvenile
court, the new offenses constituted Measure 11 crimes when
committed by an individual of at least 15 years of age. See
ORS 137.707(1)(a), (4)(a) (conferring adult liability for certain
listed crimes). Then-existing law required the prosecution
of 15-, 16-, and 17-year-old minors in adult criminal court
when certain serious felonies were alleged, and expressly
forbid a district attorney from pursuing such a case in juvenile court. See ORS 137.707(1) - (4). Defendant filed both a
demurrer from the indictment and a motion to dismiss the
indictment in the trial court.

        In his accompanying memorandum in support of
the demurrer and motion to dismiss, defendant acknowledged that ORS 137.707 authorized his prosecution in adult
Cite as 

 (2021)                                                271

criminal court for Measure 11 offenses, including sexual
abuse in the first degree and unlawful sexual penetration
in the first degree. Defendant also acknowledged that ORS
137.707(1)(b) prohibited the prosecutor from filing a juvenile court petition when Measure 11 offenses were alleged
and the defendant was at least 15. Nevertheless, defendant
argued that the statute was silent on “what happens when
the Juvenile Court already has jurisdiction pertaining to
a single criminal episode that has presumably occurred,
and the State now believes that episode included Measure
11 level conduct.” Citing ORS 419C.005(1) (2015),2 defendant
argued that, once juvenile court jurisdiction attached, the
juvenile court “has exclusive jurisdiction until that child is
transferred from the court’s jurisdiction.” Defendant argued
that “[i]nitiating a prosecution in adult court for the same
criminal episode of the child that is currently subject to
Juvenile Court jurisdiction without going through the proper
waiver basis is an act outside the law.” The state did not file
a written response to those arguments, but moved to dismiss defendant’s juvenile case the following day. Defendant
made similar arguments in the juvenile court opposing that
motion and, after a hearing, the juvenile court granted the
state’s motion to dismiss the juvenile petition. Finally, several weeks later, the trial court denied defendant’s motion to
dismiss the adult indictment and did so without a hearing.
Defendant reiterated his jurisdictional arguments at trial
after the state had rested its case, and those arguments
were again denied. On appeal, defendant assigns error to
the trial court’s denial of his motion to dismiss with respect
to Counts 6 and 7.3
B.    Analysis
       We review the question of whether the trial court
was required to send the case to juvenile court for a hearing

    2
      As with a number of other statutes referenced in this opinion, ORS
419C.005 was also amended in 2019. Or Laws 2019, ch 634, § 14. All references to
ORS 419C.005 in this opinion are to the 2015 version, which was in effect at the
time of defendant’s crimes.
    3
      Although defendant’s jurisdictional arguments in the trial court pertained
to Counts 6, 7, and 8, he was acquitted of Count 8 following a jury trial. Thus, he
only appeals the court’s ruling on Counts 6 and 7, those counts for which he was
convicted.
272                                                            State v. Smith

for legal error. State v. Gaige, 

, 

, rev den, 

 (2020). Defendant argues that, once
juvenile jurisdiction attached for the charges involving SS,
he possessed a vested interest in the rights and protections
of juvenile court. Defendant contends that the Fourteenth
Amendment to the United States Constitution granted him
the procedural due process right to a hearing before those
privileges could be extinguished and the case moved to
adult criminal court. Because he was not afforded a hearing, he argues, Counts 6 and 7 should have been dismissed.
In response, the state argues that defendant did not have a
constitutional right to a hearing, because ORS 137.705 and
ORS 137.707 mandated defendant’s prosecution in adult
court and afforded the juvenile court no discretion over
whether to waive jurisdiction.
         We considered a similar question just last year in
Gaige, 

. There, the defendant, who was 16
at the time, was charged in adult criminal court with several
Measure 11 and non-Measure 11 offenses. 

 The defendant
moved to dismiss the indictment, arguing that, even though
the charges had been first brought in adult court and there
was no existing juvenile case, the juvenile court had jurisdiction under ORS 419C.094, because he had been taken
into custody before the charges were filed.4 

 He similarly
argued that, because he was under juvenile court jurisdiction, he was entitled to a juvenile court hearing under the
Due Process Clause of the Fourteenth Amendment to determine whether he should be remanded to adult court. 

. As in the instant case, the defendant directed us to
Kent v. United States, 

, 

, 

 (1966), and In re Gault, 

, 

, 

 (1967), as authority for that contention. Gaige, 

.
         In Gaige, we concluded that, even if juvenile court
jurisdiction had been invoked, the filing of an indictment in
adult criminal court alleging Measure 11 offenses “divested

    4
      ORS 419C.094 states that, “[e]xcept as otherwise provided in ORS
419C.103(3) and (4), the jurisdiction of the juvenile court of the county in which a
youth is taken into custody under ORS 419C.080 and 419C.088 shall attach from
the time the youth is taken into custody.”
Cite as 

 (2021)                               273

the juvenile court of jurisdiction by operation of law.”
Id. at 474. This was because, under ORS 137.705(2)(c), “ ‘[t]he
filing of an accusatory instrument in a criminal court
under ORS 137.707 divests the juvenile court of jurisdiction in the matter if juvenile court jurisdiction is based on
the conduct alleged in the accusatory instrument or any
conduct arising out of the same act or transaction.’ ” Gaige,

 (quoting ORS 137.705(2)(c)). Further, we
concluded that Kent and Gault did not stand for the proposition that the defendant asserted. Gaige, 

. We followed the Ninth Circuit’s interpretation of those
cases, as articulated in Alvarado v. Hill, 

 (9th Cir 2001). Gaige, 

. We summarized Alvarado’s holding: “[D]ue process requires the
sort of hearing for which a defendant argues only when
a state’s statutory scheme grants a juvenile court discretion to determine whether a youth should be remanded to
adult court or, instead, remain in juvenile court.” 

(emphasis in original). Because ORS 137.707 left the juvenile court with no discretionary power in this regard, “due
process did not require defendant be granted a hearing at
which the court could exercise that nonexistent authority.”

.
         Here, defendant argues that Gaige should not control because of the estoppel rule that, “[W]here a party
assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party
who has acquiesced in the position formerly taken by him.”
Zedner v. United States, 

, 

, 

 (2006) (internal quotation marks omitted). That
argument is not entirely clear to us, but we reject it based
on our understanding of it. The record supports the conclusion that the state did not assume a contrary position, but
rather opted to proceed in adult court following additional
allegations by SS that alleged that defendant had committed Measure 11 crimes. Defendant’s efforts to distinguish
Gaige are not convincing. We conclude that Gaige controls
and that the trial court did not err in denying defendant’s
motion to dismiss Counts 6 and 7.
274                                                        State v. Smith

         II. SECOND ASSIGNMENT OF ERROR—
           EXCLUSION OF EXPERT TESTIMONY
A.    Facts
         In defendant’s second assignment of error, he asserts
that the trial court erred by excluding certain expert testimony pursuant to the rule against vouching. For purposes
of appeal, the relevant facts are not disputed. The charges
in this case stemmed from multiple allegations of abuse
involving two victims, SDS and SS. The first allegations
were made in June 2016 by SS, defendant’s cousin who was
nine years old at the time. SS reported that defendant had
touched her inappropriately in a single incident approximately two weeks before. Soon after SS’s disclosure, she was
assessed at CARES Northwest, a pediatric clinic that evaluates children for evidence of abuse. That evaluation included
both a forensic interview and a physical medical evaluation.
About a year later in June 2017, SDS, defendant’s sister,
came forward with her own allegations of abuse, which were
more extensive and involved repeated incidents over several
years. SDS was also evaluated by CARES Northwest due
to her allegations. SDS reported that the abuse had started
when she was possibly as young as eight and had stopped
months prior to her report.5 SDS testified that she did not
remember the first time or last time defendant had abused
her. Later in 2017, SS made additional allegations, claiming
that more extensive abuse had occurred during the incident
in May 2016. SS took part in a second CARES interview
in August 2017, approximately 14 months after her initial
interview.
        At trial, defendant admitted that he had asked to
see SS’s underwear but testified that he had never touched
her inappropriately. He further denied that any abuse had
ever occurred with SDS. The defense made several different
arguments for acquittal. As to the charges involving SDS,
the defense focused on defendant’s troubled relationship
with his and SDS’s mother and presented the theory that

    5
      Defendant was under 15, and therefore not subject to adult criminal prosecution, for approximately the first half of the time period during which SDS
alleged the abuse had occurred. Defendant was never charged as a juvenile for
any crimes he may have committed against SDS before his fifteenth birthday.
Cite as 

 (2021)                                  275

the mother had encouraged SDS to make false allegations.
The defense argued in the alternative that, even if any of
the alleged abuse had occurred, there was not sufficient evidence to prove beyond a reasonable doubt that it happened
after defendant turned 15. As to SS, the defense highlighted the various different accounts of the incident that
SS had given over time, and again posited that there was
insufficient evidence that the incident had occurred after
defendant turned 15. The defense also criticized CARES
Northwest’s overall investigation. In particular, the defense
described CARES as a law enforcement partner that failed
to investigate alternative explanations for the reports or
question inconsistencies in the allegations, ultimately collecting unreliable evidence. Throughout the nine-day trial,
the defense focused on CARES’s role in the investigation
and evaluation of both victims.
         On the eighth day of trial, the defense sought to
introduce the testimony of Dr. Johnson, a child psychologist experienced in assessing children for sexual abuse. The
state requested an OEC 104 hearing outside the presence
of the jury for the court to decide on the admissibility of
Johnson’s testimony. To “try and save time,” the defense
offered to question Johnson regarding his qualifications and
“share with the court an overview of what [he] would ask of
the witness” via an offer of proof. Both the state and court
agreed to that proposal. After establishing Johnson’s qualifications, defense counsel gave an overview of the topics he
intended to cover on direct examination, which mainly covered general concepts and best practices for child forensic
interviews. Defense counsel’s offer included the following:
       “The fact that Washington County actually has protocols and those protocols are published by the Washington
   County District Attorney’s Office and they are protocols
   that are distributed to the other members of the MDT who
   I’ve just noted, and they cite the importance of doing things
   like not engaging in duplicating interviews, protecting
   children from too many multiple interviews and they cite
   the importance of, in general, following the best practices
   of guidelines.
      “Dr. Johnson can testify, if allowed, that he has reviewed
   at least a hundred and maybe hundreds of CARES
276                                              State v. Smith

  assessments over the thirty plus years that CARES has
  been around. And that contemporaneously since the existence of guidelines, that they tend not to follow them in
  terms of not engaging in differential analysis or asking
  questions that explore alternative hypotheses.
      “…
      “General principles that apply to delayed disclosure.
  The importance of contextual details and the importance
  of consistency, in general, or inconsistency, in general, and
  the differences between a scenario which there was a onetime episode versus multiple time episodes. In general,
  do children in the nine to 11 year old age range demonstrate inability to recall consistent details about major
  events about sexual abuse. Although if there are multiple
  instances of sex abuse, they may not remember the specific
  details of much regarding each specific incident.
      “The fact that when there are multiple incidences that
  the better question is to ask: Do you remember the first
  time it happened, do you remember the last time it happened, and to avoid age-dating confusion when asking
  questions of children compromising the value of that question. For example, would be to ask do you remember how
  old you were the first time it occurred, do you remember
  how old you were the last time it occurred, because children get confused by age, date, chronology, but their events
  for something that occurred are more likely to be able to
  focus in terms of memory recall on a first time and a last
  time.
       “And that generally children of average ability and memory in the nine to 12 age range are able to recall the first
  time an event occurred or the last time an event occurred
  ….”
In response to defense counsel’s offer of proof, the state
argued, among other things, that some of the proposed testimony would constitute impermissible vouching:
     “My concerns on—on—with this particular witness,
  judge, there’s—and I’m looking at this outline [defense
  counsel] sent me, which I appreciate it. There’s a section
  here that says protocols ignored, guidelines ignored. Again,
  I don’t—maybe I might—I might have missed that when
  [defense counsel] was just reviewing what he plans on …
  asking Dr. Johnson, but under [Black I, 289 Or App at 264],
Cite as 

 (2021)                                 277

   which involved, I believe, Dr. Johnson and [defense counsel], they’re not allowed to comment on whether there was
   any protocols ignored in this case or guidelines ignored in
   this case, which it sounds like—well, my reading of that is
   that’s what he’s here to do … in part.
      “That also includes questions about wouldn’t it have
   been better to ask rather than eight—how old you were,
   when was the first time, when was the last time, do you
   remember the first time or last time.”
In response, defense counsel acknowledged Black I, but
argued that the proposed testimony would not constitute
vouching because it would not directly comment on the
truthfulness of the children and would be helpful to the jury.
        Guided by Black I, the trial court ruled that it
would allow the expert to testify as to “general principles”
important to child forensic interviews, but would prohibit
three specific areas of testimony as impermissible vouching:
   “[W]hat I will not allow and immediately shut down is I’m
   not going to allow questions regarding better questions to
   ask. I think that’s the way to frame it. I will not allow any
   testimony regarding are there better questions to ask.
       “And going on to that, I will not allow questions …
   about the last time or the first time abuse occurred. I won’t
   allow that line of questioning. And then the third line of
   questioning I won’t allow is the protocols or guidelines in
   this case being ignored. I think that’s a credibility and
   direct comment on the evidence which, as I read Black [I],
   is specifically prohibited and that was affirmed in this
   county as a matter of fact.”
         After the ruling was announced, defense counsel
clarified, “My intent was not to ask about does he have an
opinion in this case whether the protocols or guidelines were
followed, but, in his general experience, are the protocols and
guidelines followed.” Johnson then testified before the jury
in accordance with the court’s ruling. Finally, during closing argument, defense counsel articulated some of the arguments that Johnson had been prohibited from discussing:
   “[I]n a case where there are multiple reports of sex abuse
   over a lengthy period of time and you have a fairly intelligent mid-range child, certainly [SDS] seems to be pretty
278                                                 State v. Smith

     intelligent, it’s important not to ask the questions that
     CARES asked, which mixed and matched how old were you
     the first time it happened, how old were you the last time
     it happened. Because even kids around ten get confused
     about age and time sequence. You got lots of testimony
     about that.
        “The better way to ask the question is: Do you remember the first time it happened? Do you remember the last
     time? And you folks remember that [SDS] doesn’t in either
     case. Now, if her brother had done this to her, as smart as
     [SDS] is, do you think that it’s likely that she would have a
     memory of the very first time she was violated by somebody
     she loves and trusts? And I’m not saying, oh, yeah, it was
     February 22nd of three and a half years ago. I’m talking
     about does she have any memory of the event enough to
     talk about it and she does not.”
The jury convicted defendant of six of the charged counts
and one lesser included count and acquitted him on Count 8.
B.    Analysis: Preservation
          On appeal, defendant argues in his opening brief
that he offered the exact same type of evidence that was at
issue in Black I and II: expert testimony about the specific
ways in which the interviews in the case failed to conform
to established guidelines and protocols. However, defendant
does not specify what part of counsel’s offer of proof should
be read as a specific critique of the SDS and SS interviews.
The state responds that defendant never actually offered
into evidence the type of specific critique that was at issue
in Black I and II. The state posits that, to satisfactorily preserve this issue, defendant would have had to clearly offer
“testimony from Dr. Johnson that he had reviewed the interviews of the victims in this case and wanted to state an
opinion that those interviews were not substantially in compliance with ‘established interviewing protocols.’ ” Because
defense counsel never made such an offer, and “expressly
acknowledged that this court’s decision in [Black I] controlled,” the state argues that this issue was not preserved.
      Defendant responds to the state’s preservation
argument in a reply brief, and narrows his preservation
argument to focus on one section of the overall offer of
Cite as 

 (2021)                                               279

proof—specifically, the section addressing “better questions
to ask” during child forensic interviews when multiple incidents of abuse are alleged.6 Defendant argues that this line
of inquiry was a specific critique of the forensic interviewing
in this case, and that the “better questions to ask” framing meant “better than the questions that were asked in
this investigation.” (Emphasis in original.) We now understand defendant’s arguments on appeal to relate to the trial
court’s exclusion of the “better questions to ask” testimony
only, and for that reason we do not consider whether any
other section of defendant’s offer of proof was erroneously
excluded under Black II.
         Our basic preservation inquiry is whether the trial
court had the opportunity to consider and correct the error
now claimed on appeal. State v. Vanornum, 

,

 (2013). When an appellant claims that the trial
court excluded evidence in error, generally the appellant
must show that he made an offer of proof of the excluded
evidence. State v. Hernandez, 

, 

 (2015). An offer of proof may take the form of statements
of counsel, “provided that the statements adequately inform
the trial court of the nature of the evidence at issue.” State
v. Jaimes-Pineda, 

, 

 (2015).
“That does not necessarily mean that the party’s counsel
must identify specific testimony that he wishes to elicit, but
it does require that the party present sufficient evidence,
even if broadly stated, to put the trial court on notice of its
substance and nature.” State v. Perez-Garcia, 

, 

 (2018). At bottom, the main issue
is whether the offer of proof has sufficiently served the
   6
     To review, this section of the offer of proof stated:
        “The fact that when there are multiple incidences that the better question is to ask: Do you remember the first time it happened, do you remember
   the last time it happened, and to avoid age-dating confusion when asking
   questions of children compromising the value of that question. For example,
   would be to ask do you remember how old you were the first time it occurred,
   do you remember how old you were the last time it occurred, because children
   get confused by age, date, chronology, but their events for something that
   occurred are more likely to be able to focus in terms of memory recall on a
   first time and a last time.
        “And that generally children of average ability and memory in the nine
   to 12 age range are able to recall the first time an event occurred or the last
   time an event occurred ….”
280                                             State v. Smith

purposes of the preservation rule: “to allow the trial court
to consider a contention and correct or avoid any error, to
allow the opposing party an opportunity to respond to a contention, and to foster full development of the record.” State
v. Lulay, 

, 

, rev den, 

 (2018) (citing Peeples v. Lampert, 

, 

 (2008)). “What is required of a party to adequately
present a contention to the trial court can vary depending
on the nature of the claim or argument; the touchstone in
that regard, ultimately, is procedural fairness to the parties
and to the trial court.” Peeples, 

.
         Here, the state argues that defendant’s trial
counsel conceded that Black I controlled and chose to not
offer any testimony that Black I would have prohibited—
specifically, an expert’s opinion that the child forensic interviews in this case failed to conform to established protocols
and guidelines. However, the record does not support that
argument. As we have said before, an offer of proof must
have “sufficient particularity to allow the trial court to rule
on the argument and correct any error.” State v. Reeves, 

, 

, rev den, 

 (2012)
(emphasis added). Another way of articulating our task is
that we must first discern whether defense counsel made
sufficiently clear to the trial court and opposing counsel that
he was seeking to admit a particular critique of one or more
CARES interviews in this case. Second, we must determine
whether the trial court and opposing counsel had an adequate opportunity to consider and respond to that specific
offer. We conclude that the answer to both questions is yes
in this case.
         Although on appeal defendant initially characterized the relevant portion of the offer of proof as Johnson’s
opinion “whether the child interviews of SDS and SS were
conducted consistently with guidelines, protocols and best
practices for child forensic interviews,” we understand,
based on reply briefing, that he refers specifically—and
only—to the “better questions to ask” line of inquiry, which
addressed appropriate interview questions to ask when multiple instances of abuse are suspected over a lengthy period.
With that said, we conclude that the discussion that occurred
on the record shows that defendant’s offer regarding “better
Cite as 

 (2021)                              281

questions to ask” was understood by all present as an offer
to critique a specific forensic interview in this case.
         Further, this offer was both sufficiently clear for the
trial court and the state to understand and provided the
court and the state with an adequate opportunity to consider
and respond to it. We acknowledge that defense counsel did
not go into great detail and left some question as to what
exactly Johnson would say if permitted to testify, but the
offer was not so vague as to be misunderstood. The phrase
“better questions” implies a comparison to something, and
here the overall context makes clear that the intended comparison was to the CARES interview questions that were
posed to the child in this case who claimed multiple incidents of abuse over a lengthy period. It is thus not surprising that the state heard this offer as a specific critique of
that CARES interview and responded by citing Black I:
   “[U]nder [Black I] they’re not allowed to comment on
   whether there was any protocols ignored in this case or
   guidelines ignored in this case ….
      “That also includes questions about wouldn’t it have
   been better to ask rather than eight—how old you were,
   when was the first time, when was the last time, do you
   remember the first time or last time.”
Finally, the trial court framed its ruling with the same language and categorization as was used in Black I, illustrating that it also saw “better questions to ask” as a critique of
a specific interview in this case: “I will allow Dr. Johnson to
testify as to general principles, but what I will not allow and
immediately shut down is I’m not going to allow questions
regarding better questions to ask.” (Emphasis added.) The
record illustrates that defendant’s offer regarding “better
questions to ask” was reasonably interpreted by all involved
as a critique of a specific CARES interview in this case
and allowed the state and trial court to fully consider and
respond to the offer.
         In light of that discussion on the record, we also
reject the state’s arguments that are based on defense counsel’s comments made after the court’s ruling, where defense
counsel said: “My intent was not to ask about does he have
an opinion in this case whether the protocols or guidelines
282                                             State v. Smith

were followed, but, in his general experience, are the protocols and guidelines followed.” We do not believe counsel’s
post-ruling clarification limits the value of his earlier offer
of proof regarding the “better questions to ask” testimony.
Further, the state’s argument that defense counsel’s offer
of proof failed to present a clear critique of a specific interview in this case is further weakened by the specificity of
that section of defense counsel’s offer, which went into not
only the different questions but also the expert’s opinion
as to their significance and potential to cause “age-dating
confusion.”
         Our preservation inquiry is whether defense counsel clearly presented, such that the trial court and opposing
counsel could consider it, the type of testimony now at issue
in this appeal. We conclude that defendant’s offer of “better
questions to ask” a suspected child sex abuse victim during
a forensic interview when multiple instances of abuse are
alleged over a lengthy period was interpreted by the state
and trial court as a specific criticism of a particular CARES
interview in this case, such that defendant preserved the
issue now raised on appeal.
C. Analysis: Merits
         We now turn to the merits. Whether evidence constitutes vouching is a legal question that we review for
legal error. State v. Criswell, 

, 

 (2016). It is well established that “one witness may not
comment on the credibility of another witness.” State v.
Chandler, 

, 

 (2016). However,
“[e]xpert 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.” State v. Beauvais, 

, 

 (2015). Admittedly, it is often difficult to distinguish between a “statement that is tantamount
to a direct comment on the credibility of a witness” and a
“statement that is relevant for a different reason but that
tends to show that a witness is telling the truth.” 

        In Black, the defendant was charged with sexually abusing several minors, and sought to introduce expert
Cite as 

 (2021)                                  283

testimony addressing whether the interviews of two of the
alleged victims, GP and JN, were consistent with established protocols for child forensic interviews. Black II, 

. Specifically, the defendant offered testimony on
the following topics:
   “[The] absence of exploration of alternative theories or secondary gain in the interview of [GP] relative to [JN].
      “The fact that the methodology used by Detective
   Massey [in his interview of JN] involved not only leading
   questions, but suggestive questions, and to some degree,
   what an emotionally coercive question is.”

 (footnote omitted). After reviewing Oregon law
defining impermissible vouching, the Supreme Court articulated and summarized the rule on vouching:
       “In sum, when a party objects to testimony as improper
   vouching, a court must determine whether the testimony
   provides an opinion on truthfulness or, instead, provides
   a tool that the factfinder could use in assessing credibility.
   That determination does not necessarily require an assessment of whether that specific tool is permitted under the
   rules of evidence. For example, a court need not consider,
   as part of a vouching inquiry, whether expert testimony
   is sufficiently beyond the experience of a lay juror to meet
   the test of admissibility under OEC 702 and OEC 403. If
   a court determines that testimony constitutes vouching
   because it provides an opinion about the truthfulness of
   another witness and not information that could be helpful
   to jurors in forming their own opinions about that subject,
   the court must prohibit the testimony. If the testimony does
   not provide such an opinion, the court must then consider
   any other objections to the testimony that are raised by the
   parties.”

. Having articulated that rule, the Supreme Court
concluded that the proposed testimony would not have constituted vouching, because it would have aided the jury in
assessing the witnesses’ credibility without stating a direct
opinion on the witnesses’ credibility. 

.
        Here, we conclude similarly that the trial court
erred by excluding the “better questions to ask” testimony,
because it did not constitute vouching. That error was due
284                                             State v. Smith

solely to the court’s reliance on our then-binding opinion in
Black I, which the Supreme Court later reversed in Black II.
The excluded testimony at issue in Black was extremely
similar to the excluded testimony here, both in content and
purpose. Both lines of inquiry sought to critique specific
interviews by dissecting the specific questions asked during
those interviews and comparing them to established best
practices, guidelines, and protocols for child forensic interviews. Both lines of inquiry would have assisted the jury in
evaluating the reliability of the answers obtained in those
interviews, without directly stating the expert’s opinion on
whether the child witnesses were telling the truth. In light
of these similarities, and the fact that the state makes no
arguments on the merits, we readily conclude that Black II
controls and that the trial court erred by excluding the
offered testimony regarding better questions to ask a child
who alleges she was subject to multiple incidents of sexual
abuse over a lengthy period.
D. Analysis: Harmless Error
         Having concluded that the trial court erred, we
finally address the issue of harmless error. Defendant
argues that the trial court’s error was not harmless as to
any of his seven convictions. He claims that the testimony
would have helped “the jury assess the credibility and reliability of the answers of both SS and SDS” and determine
whether “SDS’s memories in particular were insufficient to
satisfy the state’s burden that Defendant was over 15.” The
state does not address harmless error.
         We will affirm a judgment of conviction despite
the erroneous exclusion of evidence if the error was harmless, meaning that there is little likelihood that the error
affected the verdict. State v. Johnson, 

,

 (2009). In determining harmlessness, we do
“not ask whether the evidence of guilt is substantial or compelling.” State v. Henley, 

, 

 (2018).
Instead, we assess “the erroneously admitted or excluded
evidence in light of other evidence in the record pertaining
to that issue.” Johnson, 

. An error that
relates to a central factual issue in the case is less likely to
be harmless. Black II, 

. However, even an error
Cite as 

 (2021)                            285

that relates to a central factual issue may be harmless if
the erroneously excluded evidence was cumulative of, rather
than qualitatively different from, evidence the factfinder
did consider. 

 The Supreme Court has acknowledged that
“scientific evidence or evidence perceived by lay jurors to be
scientific in nature possesses an unusually high degree of
persuasive power.” Henley, 

. Although the state
has not developed a harmless-error argument, we have an
independent obligation to consider whether defendant was
prejudiced. State v. Sperou, 

, 

(2019).

         Defendant argues that the trial court’s error was
not harmless, because the excluded evidence would have
helped the jury “assess the credibility and reliability of the
answers of both SS and SDS.” However, as addressed above,
defendant’s reply brief narrowed the issue on appeal to challenge the exclusion of evidence that there were “better questions to ask” a child who alleged multiple incidents of abuse
than those asked in SDS’s CARES interview. That offered
testimony, which compared the questions “how old were you”
the first time or last time the abuse occurred and “do you
remember” the first time or last time the abuse occurred,
is necessarily relevant only when a child has claimed abuse
occurred multiple times over a lengthy period. Those questions would have had no relevance to the charges involving
victim SS, who reported one single day of abuse two weeks
after it occurred. Thus, we conclude the error was harmless and had little likelihood of affecting the verdict as to
the convictions for defendant’s crimes against SS, Counts 6
and 7.

         However, we reach a different conclusion as to
the convictions involving defendant’s alleged conduct as to
SDS. Johnson’s excluded testimony was intended to critique
CARES interview questions that asked SDS how old she
was the first time and last time abuse occurred. SDS had
responded to those questions by saying that some abuse had
occurred when she was eight, nine, and 10 years old, and
that it had stopped months previously. If permitted, Johnson
would have given his opinion that asking a child of SDS’s
age whether she simply remembers the first or last time
286                                                          State v. Smith

abuse occurred, rather than connecting it to a specific age,
is less likely to produce a “confused” response, because children are “more likely to be able to focus in terms of memory
recall on a first time and a last time.” Importantly, SDS had
testified that she did not remember and could not describe
the first time or last time defendant had abused her.
          The excluded evidence went to the central factual
issue of whether SDS was truthfully reporting abuse or
whether the allegations were instead false. If, as Johnson
sought to testify, children of SDS’s age are generally able
to remember the first time and last time abuse occurred,
but less likely to be able to reliably say what age they were
the first time and last time abuse occurred, SDS’s responses
could be seen as unreliable. Defendant’s trial theory as to
the charges involving SDS was that the mother had concocted the abuse story. Although the jury heard pieces of
this theory through other evidence, Johnson’s excluded testimony was unique in that it focused on the child’s statements
rather than on the mother. Thus, the erroneously excluded
evidence was not merely cumulative of other admitted evidence but was qualitatively different from evidence the jury
did hear. Considering the reality that scientific evidence like
Johnson’s offered expert testimony is often highly persuasive to juries, we cannot say that there is little likelihood
this error affected the verdict on Counts 1 through 5.7
                          III.   CONCLUSION
         In sum, we conclude that the trial court erred in prohibiting defendant’s expert from discussing “better questions
to ask” during the CARES interview of SDS, and conclude
that this error was not harmless as to Counts 1 through 5.
However, we conclude that the court’s error was harmless
as to Counts 6 and 7, the remaining counts for which defendant was convicted of sexual abuse and attempted sexual abuse of the victim SS. Having either not reached or
    7
      Because we conclude that the exclusion of the evidence was not harmless for
the reasons expressed above, we do not address defendant’s additional argument
that the excluded evidence could have supported his arguments that he did not
engage in any charged conduct after his fifteenth birthday, which was necessary
to establish both adult court jurisdiction and the imposition of mandatory minimum sentences.
Cite as 

 (2021)                          287

rejected defendant’s other assignments of error, we reverse
and remand to the trial court for a new trial on Counts 1,
2, 3, 4, and 5, and affirm and remand for resentencing on
Counts 6 and 7, the remaining convictions.
       Convictions on Counts 1, 2, 3, 4, and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.