S056477, Opinion — State v. Lupoli

346
Argued and submitted September 14, 2009, decision of Court of Appeals and
judgments of circuit court reversed as follows: judgment of conviction against
defendant for attempted first-degree sexual abuse of victim T reversed, and case
remanded to circuit court for entry of a judgment of acquittal on that charge;
judgments of conviction against defendant for first-degree sexual abuse of victims
SM and SO, and judgment of conviction against defendant for attempted
first-degree sexual abuse of victim W reversed, and case remanded to circuit
court for further proceedings June 4, 2010
STATE OF OREGON,
Respondent on Review,
v.
TYLER JAMES LUPO LI,
Petitioner on Review.
(CC C052106CR, C053594CR;
CA A132083, A132084;
SC S056477)
234P3d 117

Cite as 348 Or 346 	347
CJS, Criminal Law§ 1062.
En Banc
On review from the Court of Appeals.*
Robert Rosenthal, New York, argued the cause and filed
the brief for petitioner on review. With him on the brief
were Edward H. Talmadge and Tracy M. McGovern of
Frohnmayer, Deatherage, Jamieson, Moore, Armosino &
McGovern, P.C., Medford.
Anna Marie Joyce, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgments of
the circuit court are reversed as follows: The judgment of con-
viction against defendant for attempted first-degree sexual
Appeal from Washington County Circuit Court, Paula Brownhill, Judge. 219
Or App 665, 185 P3d 571 (2008).

348 	State v.
abuse of victim Tis reversed, and the case is remanded to the
circuit court for entry of a judgment of acquittal on that
charge. The judgments of conviction against defendant for
first-degree sexual abuse of victims SM and SO, and the judg-
ment of conviction against defendant for attempted first-
degree sexual abuse of victim W are reversed, and the case is
remanded to the circuit court for further proceedings.

Cite as 348 Or 346 	349
GILLETIE, J.
This criminal case presents two issues. The first is
whether 	certain 	expert 	witnesses 	at 	trial 	improperly
"vouched" for the veracity of children who allegedly had been
victims of sexual abuse. The alleged vouching occurred when
the experts testified generally about characteristics of truth-
ful and untruthful children and then testified that state-
ments of the children in question displayed the characteris-
tics of truthful children and lacked characteristics indicative
of suggestion, influence, or fantasy. The second issue is
whether the trial court erred in denying defendant's motion
for judgment of acquittal on the charge involving one of the
alleged victims. The Court of Appeals affirmed defendant's
convictions without opinion. State v. Lupoli, 219 Or App 665,
185 P3d 571 (2008). For the reasons that follow, we reverse
the decision of the Court of Appeals and the judgment of the
circuit court, and we remand the case to the circuit court.
The following facts are undisputed. At the time of
the events that led to the charges against him, defendant
was 19 years old and had been working at a fitness club in
Hillsboro, Oregon, for about two months, selling club mem-
berships. By his own admission, defendant did not enjoy
sales and was not a very good salesman. He took frequent
breaks from his sales calls to wander around the club, doing
things that were not part of his job, including, among other
things, chatting with other employees. One of the people
defendant often visited was a woman who worked in the
club's daycare facility, which was called the Kids Club. 1
The Kids Club was a room with an open entryway,
windows from the interior of the club through which parents
could see their children, and a surveillance video camera that
recorded what went on in the room. The fitness club main-
tained certain employee-child ratios in the Kids Club at all
times. For children over 18 months old, the required ratio
was one trained employee per 10 children. For children under
18 months of age, the ratio was one to three. Other club per-
sonnel who were merely visiting the Kids Club, as defendant
1 Employees other than those hired to work in the Kids Club were not supposed
to be in that facility, but that rule was not enforced.

Statev.
often did, did not count toward those ratios. As a result, there
were always several club employees in the room whose job it
was to watch over the children, and other club employees fre-
quently were present as well.
Based on accusations of misconduct in the Kids Club
alleged to have occurred over a several-week period, defen-
dant was charged with sexually abusing, or attempting to
sexually abuse, 	six children. This case involves charges
respecting four of the victims. 2 The first victim, SM, an eight-
year-old, had told her mother in July 2005 that she did not
want to go to the daycare facilities at the fitness club. None-
theless, her mother dropped her off and went to work out.
The mother checked in on her about a half an hour later, and
SM was watching television. The mother continued to work
out for another 20 minutes and then picked the child up. SM
did not immediately tell her mother about anything that had
happened during her time in the Kids Club, nor had she com-
plained to anyone working there. As they were leaving, how-
ever, SM told her mother that she did not want to come back
to the Kids Club because she did not like it there. According
to the mother, SM pointed at defendant and stated that he
had said "weird stuff' to her. When questioned, SM elabo-
rated that defendant had asked her what her underwear
looked like. SM and her mother then reported the incident to
the club's management. In those initial conversations, SM
did not state that defendant had touched her. However, while
in the car on the way home and in response to further ques-
tioning by her mother, SM told her mother that defendant
had touched her underpants. The mother called the police.
A police officer, Mastrisciano, came to the child's
home later that evening. On questioning, SM recounted her
conversation with defendant and, eventually, told the officer
that defendant had pulled at her underwear and touched her.
As a result, SM was sent for an examination at CARES
Northwest, a clinic that evaluates children who may have
been sexually abused. A nurse, Avila, conducted a physical
examination, which did not reveal physical evidence of sex-
ual abuse. Avila then diagnosed SM with "sexual abuse"
Defendant was acquitted of the charges respecting two other alleged victims;
therefore, we do not describe the facts surrounding those counts.

Cite as 348 Or 346 (2010) 	351
based on SM's allegations, and referred SM to a CARES
social worker, Findlay, for further questioning. SM told
Findlay that defendant had asked to see her underwear and
had touched her twice.
Thereafter, Mastrisciano obtained copies of the Kids
Club surveillance videotapes for the month and a half before
the incident that SM described. In all of the videotapes, other
adults were in the room when defendant was there. None of
the surveillance videotapes, including the one from the day
on which SM claimed that defendant had touched her,
showed defendant touching a child or looking at a child's
underwear. 3 Nonetheless, Mastrisciano identified as poten-
tial victims all girls with whom defendant had had direct,
one-to-one personal interaction. Mastrisciano then began
contacting the parents of those children.
As relevant here, about two weeks after SM's initial
complaint, Mastrisciano contacted the parents of three-year-
old W. Mastrisciano informed them of his investigation and
told them that their daughter could possibly have been the
victim of some inappropriate conduct by defendant at the
Kids Club. W's mother reported to Mastrisciano that, some
time previously, W had told her that a "boy" at the Kids Club
had tried to lift up her skirt, but W's mother had believed
that the "boy" was another child at the daycare facility. When
the 	accusations 	against 	defendant 	came 	to 	light, 	both
Mastrisciano and W's mother assumed that, in fact, W had
been referring to defendant. Mastrisciano, on being told
about W's story, assumed defendant was the "boy." He con-
ducted no investigation into whether W could have been talk-
ing about another child; he neither asked W about it nor
viewed any of the surveillance tapes to confirm her report.
W was taken to a social worker and "play therapist," Moussa,
for 	evaluation. 	W 	eventually 	confirmed 	to 	Moussa, 	in
response to Moussa's direct question, that defendant had
lifted her skirt and touched her in the vaginal area.
a The videotapes had no audio portion. The tapes actually consisted of a series
of still photographs taken at close intervals-about one photo every second. The
videos were taken from an upper corner of the room. Defendant's back was to the
camera most of the time and, even when it was not, defendant's eyes were not
visible.

Mastrisciano next contacted the parents of a five-
year-old child, SO, and told them what SM claimed had hap-
pened to her at the Kids Club. 4 In response, SO's father told
Mastrisciano that, about a month earlier, he had taken SO to
the Kids Club and, when he later picked her up, she com-
plained that a "big boy" had wanted to "play, play, play," and
that she did not want to play with him. Later that evening,
when SO's mother came home from work, SO told her the
same thing. In response to her mother's questioning, SO told
her mother that the boy had asked to see her underwear and
had asked to see her vagina, and that she had lifted her dress
and pulled her underpants aside to expose her vaginal area. 5
SO then went through the same CARES process that SM had
been through: She underwent a physical examination, which
did not reveal physical evidence of sexual abuse. The exam-
ining physician, Heskett, diagnosed SO with "sexual abuse."
Social worker Findlay then questioned SO further. When
talking to Findlay, SO stated that defendant had touched her
near her vagina.
Finally, as relevant here, Mastrisciano contacted the
parents of three-year-old T. T's mother met Mastrisciano at
the police station. Mastrisciano explained the allegations
that, by then, had been made against defendant and showed
T's mother a surveillance videotape of her daughter with
defendant. Subsequently, T also was interviewed by Findlay
at CARES. T never indicated to the police, her parents,
Findlay, or anyone else that defendant had ever touched her
or tried to look at her underwear. A videotape from Kids Club
showed defendant in close physical proximity to T on one
occasion.
Defendant was charged with two counts each of first-
degree sexual abuse with respect to SM and SO, one count of
first-degree sexual abuse with respect to W, and one count of
attempted first-degree sexual abuse with respect to T.
4 The case had received considerable media attention by that point.
SO's mother had told her to tell the "teacher" if anything like that happened,
hut neither she nor SO's father called the police or contacted the fitness club man-
agement or Kids Club about SO's story. In fact, SO's father took her back to the
Kids Club about 20 times in the month between SO's first mention of the boy who
wanted to "play, play, play" and Mastrisciano's communication to him about the
charges against defendant.

Cite as 348 Or 346 (2010) 	353
At defendant's trial, the state presented, among
other things, the testimony of the health care professionals
who evaluated SM, SO, and W. 6 Those health care profes-
sionals testified that, in their respective opinions, the chil-
dren whom they evaluated had been sexually abused. Avila,
for example, testified that she diagnosed eight-year-old SM
as having been sexually abused because:
• 	"Her disclosures * * * were very clear and spontaneous.
They were appropriate for the age that she was. They
didn't sound rehearsed, they sounded like things she just
said."
• 	"She was consistent. She had said the same type of thing
before to her parents, I guess."
• 	"[H]er physical exam was consistent with what she said
happened. There weren't any signs, but you wouldn't
expect there to be. * * * [S]he was touched and-with a
hand, and touching doesn't leave any marks."
• 	"[T]he manner in which [SMJ told her story was pretty
compelling. She just had a real clear change in her
demeanor."
• 	"[J]ust the way she told her story was very compelling,
and that just makes it-it just was-it had an effect."
Avila also testified that she saw multiple instances of "idio-
syncratic detail" in SM's statements, which Avila described
as
"spontaneous detail that you wouldn't otherwise get, * * *
things that if you were making up a story, you might not
put that kind of detail in it."
Avila stated that, in SM's story,
"there was a lot of little details that were involved in the
way the story was told. * * * I mean it was really quite
descriptive."
6 As we discuss in detail below in addressing defendant's contention that the
evidence was insufficient to support his conviction for attempted first-degree
sexual abuse of T, the only evidence in the record that concerned the allegations
respecting Twas Mastrisciano's and her mother's testimony, a surveillance video-
tape showing defendant sitting close to T, and defendant's acknowledgement on
cross-examination that the videotape showed that, at certain points, he had been
sitting close enough to T to look at her underwear and to touch her. No health care
professional mentioned T's name at the trial.

354 	Statev.
Finally, Avila testified that she and social worker Findlay
"were in agreement. * * * We both felt quite certain that
when you look at the things that you look at that make you
think that a kid is telling it like it is, they were all there.
They were all there, and we both agreed[.]"7
Heskett testified that she diagnosed five-year-old
SO as having been sexually abused because
"the child made consistent statements in a developmentally
appropriate way, she's only five years old, consistent with
abuse. Her examination was-did not show signs of abuse.
* * * [B]ased on those things, I came to the diagnosis."
Heskett also described the things she looked for in SO's state-
ments to arrive at her diagnosis:
• 	"We look to make sure that the child's statements are
developmentally appropriate. It would be very worri-
some or concerning * * * if I had a child who at five was
using terminology or expressing things with phrases
that would not be expected to come from a five-year-old.
* * * [SO] seemed developmentally appropriate to me[.]"
• 	"In general, [peripheral details are] one of the things
that's important in the sense that the child can give as
much detail about the entire reported or alleged incident
as possible. * * * [SO] was very clear-cut in telling us
[details]."
When asked whether anything about SO's affect would raise
concerns of whether to rely on what she had said, Heskett
testified,
"For a five-year-old child, she actually seemed to be very
appropriate. She did not seem to be overly anxious, overly
timid, overly afraid."
Heskett also testified that nothing about SO's emotional
state gave rise to concerns about her reliability. Heskett
listed specifically what led her to diagnose SO with sexual
abuse:
"The combination of her statements, as well as the fact that
her physical findings fit with her statements. She did not
7 The trial court sustained defendant's objection to that last statement and
instructed the jury to disregard it.

355
have any signs of abuse, but I would not have expected any
based on her statements. * * * It was the comments that she
made[.] * * * It was the fact that she had options or oppor-
tunities to perhaps change her history or say that she had
been touched in other places, and she remained fairly con-
sistent-not fairly, she remained consistent in where she
was touched."
Finally, Heskett testified that, in concluding that SO had
been sexually abused, she relied on the absence of "risk fac-
tors," i.e., ways in which a child would gain "inappropriate
sexual knowledge," such as exposure to adult pornography.
Findlay also testified about how he had reached his
conclusions respecting SO. He testified that, when interview-
ing children for CARES, he looks for certain characteristics in
children's statements to determine, for one thing, whether
they are suggestible:
"[SJuggestibility refers to sometimes a child's statements
where [they] can be impacted by the way in which a ques-
tion is asked. * * * Kids that are highly suggestible tend to
want to please an adult. They'll answer 'yes' to almost all of
your questions. * * * They often also kind of parrot your
words. They may use words that are not-sound like words
that are from kids."
Specifically with respect to SO, Findlay testified,
"I did not find her, you know, very suggestible. She
answered 'no' to a lot of questions. She kind of corrected
herself at one point. She didn't appear that suggestible to
me."
Moussa, the social worker and play therapist, testi-
fied about how she had reached her conclusions with respect
to 	three-year-old 	W. 	Moussa 	testified 	that, 	after 	she
explained to W who she was, Moussa "described that the
inappropriate situation that [W] had been in is that she had
had her skirt lifted up at the 24-Hour Fitness, and [W] nod-
ded, yes." At that point, according to Moussa, W became anx-
ious and avoided eye contact. Moussa then testified that,
before having been asked the question about the lifting of the
skirt,

Statev.
"My assessment was that [W] was presenting as devel-
opmentally appropriate in her demeanor, in her verbal lan-
guage presentation, her general fund of knowledge, doing a
basic mental status, meaning that she would interact with
me, she could speak clearly, she could have some play inter-
actions that let me know developmentally she was on track.
"Also that there was a significant affect change when I
did make statements about the nightmares and the lifting
of her skirt at the gym."
Defendant objected to all the foregoing testimony
concerning SM, SO, and W, both through specific and also
through 	continuing 	objections, 	on 	the 	ground 	that 	it
amounted to improper vouching by one witness for the credi-
bility of another. He argued that the various statements
informed the jury that there are particular indicia of truthful
statements by children and that the children's statements as
reported in this case exhibited those indicia. The trial court
overruled those objections, except the objection to Avila's
statement that she and Findlay "both felt quite certain that
when you look at the things that you look at that make you
think that a kid is telling it like it is, they were all there. They
were all there, and we both agreed." On that occasion, the
court sustained the objection and instructed the jury to dis-
regard the statement.
Defendant also moved for a judgment of acquittal on
the charge against him involving T. 8 He argued that the only
evidence against him concerning T was the surveillance
videotape, that that tape did not in any way establish defen-
dant's intent to commit the crime of attempted sexual abuse,
and, therefore, that the evidence was insufficient to convict
him of attempted sexual abuse ofT. The trial court denied the
motion. Ultimately, defendant was convicted on all counts
involving SM, SO, and T. With respect to W, defendant was
convicted of the lesser-included offense of attempted first-
degree sexual abuse. Defendant appealed his convictions to
the Court of Appeals, which, as noted, affirmed without opin-
ion. We allowed defendant's petition for review.
" Defendant also moved for judgments of acquittal on other charges, concern-
ing other victims. The trial court's ruling denying the motion with respect to the
other charges is not at issue in this court.

Cite as 348 Or 346 (2010) 	357
After this case was briefed in this court, this court
held in a separate case that 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 testimony is outweighed by the danger of
unfair prejudicial effect under OEC 403. State v. Southard,
347 Or 127, 142, 218 P3d 104 (2009). Defendant in this case
objected at trial to the admission of the health care profes-
sionals' diagnoses of sexual abuse; the trial court overruled
those objections. However, defendant did not assign error to
those rulings in the Court of Appeals, and he does not now
argue that this court should apply Southard to reverse the
decision of the trial court. Accordingly, we do not consider
whether the trial court erred in permitting Avila, Heskett, or
Findlay to testify about their sexual abuse diagnoses. That
does not end this case, however, because defendant did make
other, timely objections to the various expert witnesses' opin-
ion testimony, which he preserved for review. And, as we
shall explain later, we find a number of those objections to be
well taken.
Defendant first argues that the testimony of the
health care workers quoted above amounted to impermissi-
ble comments by one witness on the credibility of another,
that the trial court erred in failing to sustain his objections on
that ground, and that the error was not harmless. He there-
fore asks this court to reverse his convictions on the charges
involving SM, SO, and W.
The law applicable to this issue is well understood.
This court has long held that one witness may not give an
opinion on whether he or she believes another witness is tell-
ing the truth. See State v. Middleton, 294 Or 427, 438, 657
P2d 1215 (1983) ("We expressly hold that in Oregon a wit-
ness, 	expert or otherwise, may not give an opinion on
whether [the witness] believes a[nother] witness is telling the
truth."). Applying that principle is a straightforward matter
when one witness states directly that he or she believes
another witness, or that the other witness is honest or truth-
ful. However, statements that fall short of such overt vouch-
ing also may be impermissible.

358 	State v. Lupoli
For example, in State v. Milbradt, 305 Or 621, 756
P2d 620 (1988), the defendant was charged with sexual mis-
conduct involving two severely mentally challenged women.
Both were deemed competent to testify at the defendant's
subsequent trial, and both did testify against the defendant.
During the trial, it was clear that both women had difficulty
recalling and relating any specific details about the alleged
crimes. Their complaints were uncorroborated by any wit-
ness or physical evidence. The defendant denied any involve-
ment in the alleged crimes.
The state offered the testimony of a psychologist who
had examined one of the women. Among other things, the
prosecutor asked the psychologist if, in his experience, he had
found that there were certain indicators of deception. The
psychologist stated that there were. The prosecutor then
asked if, in talking to the victim, the psychologist had seen
evidence 	or 	indicators 	of 	deception. 	The 	psychologist
answered,
"I did not. She seemed to take every question and answer it
as she was, answer spontaneously on the moment with no
indication of hesitation, or figuring out what the best
answer might be. You know, she would just blurt things
out, which is unpremeditated response. So, kind of a very
fresh and spontaneous approach to me.
"* * * * *
"I did not see any evidence of [purposefully deceiving or
changing things].* * *But it seemed to me to be no attempt
on her part to change things around, say things differently
than the way she felt. And she said things with an exuber-
ance, and emphasis, like, you know, she wanted to do well,
and say the answer, and do the right thing, and here it is,
you know. None of the mannerisms of someone who is cagey
and guarded and careful.
"* * * * *
"Again, I find her condition of her mental defect as directly
related to rendering her unsophisticated to either plan a
systematic or motivated deception, or carry it through. She
was so spontaneous if she, this is my opinion, if she lied,
that she would trip herself up five minutes later, you know.
"* * * * *

Cite as 348 Or 346 	359
"I would not think she would have the motivation to betray
somebody.***."
305 Or at 626-27.
The defendant unsuccessfully objected to the fore-
going testimony on the ground that witness credibility is an
impermissible area of comment by a psychotherapist. This
court held that that objection should have been sustained:
"We have said before, and we will say it again, but this
time with emphasis-we really mean it-no psychothera-
pist may render an opinion on whether a witness is credible
in any trial conducted in this state.*** An opinion that a
person is not deceptive, could not lie without being tripped
up, and would not betray a friend (to wit: the defendant) is
tantamount to the same thing."
Id. at 629-30 (emphasis in original). Moreover, even though
the trial court had given a limiting instruction, this court
held that the instruction was insufficient to mitigate the
harm, and it reversed the defendant's convictions. The court
stated that
"[t]he proffered evidence directly reflected upon the credi-
bility of the testimony of the state's key witnesses, a matter
to be assessed by the jury. * * * [T]he inadmissible testi-
mony was received and the jury heard it. The trial judge did
not tell the jury to disregard the expert's opinion. Its admis-
sion and the trial judge's failure to instruct the jury to dis-
regard the testimony concerning [the psychotherapist's]
credibility evaluation of one of the state's key witnesses
were reversible errors."
Id. at 632.
State v. Keller, 315 Or 273, 844 P2d 195 (1993), also
is instructive. There, the defendant had been convicted of
sexually abusing a five-year-old child to whom the defen-
dant's wife provided in-home daycare. The child had told her
mother that the defendant, who had been left alone with the
children for about five minutes before the child's mother had
arrived to pick her up, had, in those five minutes, touched her
genital area. The child was examined by a doctor, who found
no physical evidence of abuse, and then received a CARES
evaluation.

360 	State v. Lupoli
A CARES doctor who had watched the interview
with the child was called as a witness for the prosecution at
the defendant's ensuing trial. The doctor testified about the
materials that she had reviewed and the process that she had
used to arrive at her conclusions about the child. Among
other things, the doctor testified that the interviewer's job, in
interviewing the child,
"was to talk to the child about the alleged incident of possi-
ble sexual abuse, and to try to gather as much information
so we can reach a conclusion about whether this child has
been coached, been led, is fantasizing, or is indeed describ-
ing something that happened to her own body."
Id. at 277. The doctor agreed that those were things that
she herself looked for when formulating a diagnosis of child
sexual abuse.
Eventually, the doctor testified about her diagnosis
that the child had been sexually abused:
"I felt that [the child] had given a clear history of an episode
of sexual touching which had happened to her own body.
There 	was 	no 	evidence 	of 	leading 	or 	coaching 	or
fantasizing."
Id. at 278. The prosecutor then asked the doctor what she
looked for to determine that the child had not been led or
coached. 	This 	court 	described 	the 	doctor's 	response 	as
follows:
"In reply, the witness described to the court the types of
behavioral evidence on which she normally relied to deter-
mine whether a child had been coached: a 'rote' style ofrec-
itation by a child, a child's ability to supply 'peripheral'
details of the alleged incident, a child's tendency to correct
the interviewer about the facts, and various emotional
responses by the child. She then stated that, during the
interview of the child in this case, the child 'was obviously
telling you about what happened to her body' and was
'remembering what happened.' "
Id. at 278-79. The defendant unsuccessfully objected to the
foregoing testimony on the ground, among others, that the
doctor's testimony amounted to offering her opinion on the
truthfulness of the child's statements in the interview.

Cite as 348 Or 346
On review, this court repeated the rule that, in
Oregon, one witness may not give an opinion on whether that
witness believes another witness is telling the truth. The
court continued:
"Furthermore, this rule applies whether the witness is tes-
tifying about the credibility of the other witness in relation
to the latter's testimony at trial or is testifying about the
credibility of the other witness in relation to statements
made by the latter on some other occasion or for some rea-
son unrelated to the current litigation."
Id. at 284-85. The court concluded that the doctor's testimony
that "there was no evidence of leading or coaching or fanta-
sizing" during the child's CARES interview, and that the
"child was obviously telling you about what happened to her
body" both amounted to testimony that the child was credi-
ble. Id. at 285. The court held that the trial court erred in fail-
ing to strike that testimony. Id.
With the foregoing discussion of law in mind, we
turn to a review of the witnesses' testimony about each of the
victims, beginning with SM.
Each of Avila's statements about SM that we have
set out above was offered to explain Avila's diagnosis of SM
as having been the victim of child sexual abuse. Ordinarily,
an expert witness may explain the basis for the expert's diag-
nosis, as long as the diagnosis itself is also admissible. As we
already have noted, in this court, defendant has not argued
that Avila's diagnosis of child sexual abuse was inadmissible.
Defendant, however, always has maintained that the testi-
mony that Avi la offered in explaining how she arrived at that
diagnosis was inadmissible. Avila's statements must be ana-
lyzed with due regard for the context in which they were
made, even though defendant does not now complain that the
diagnosis itself is inadmissible. Said another way, defen-
dant's failure to raise the same objection that prevailed in
Southard does not prevent us from considering the import of
Avila's explanatory statements, given their context. Here,
that context was a child sexual abuse diagnosis based ulti-
mately and only (given the lack of physical evidence of abuse)
on whether Avila believed what SM told her.

So viewed, we conclude that, on the whole, Avila's
testimony was inadmissible because it constituted vouching.
To be sure, discrete portions of what Avila said might be
admissible in many circumstances, and perhaps even in this
case. For example, Avila's testimony that what SM said was
developmentally appropriate for her age is the kind of expert
opinion that can assist a jury and ordinarily would be admis-
sible. So, too, might be testimony describing SM's demeanor
and changes in demeanor, and the description of SM as hav-
ing included spontaneous and descriptive details in her state-
ments. The problem here, however, is that those otherwise
permissible or potentially permissible portions of Avila's tes-
timony were inextricably bound up with portions that consti-
tuted clear "vouching." Avila's diagnosis, given the lack of
physical evidence of abuse, necessarily was based on her
assessment of the child's believability. When Avila then was
asked the basis for her diagnosis, she was implicitly declar-
ing, with each statement and description, why she had found
SM to be credible. She did so explicitly as well, as when she
explained that "the manner in which [SM] told her story was
pretty compelling" and that "it had an effect" on her forming
her diagnosis. Even if there were parts of Avila's testimony
that might be admissible if offered in support of some other
kind of diagnosis, or if offered to otherwise assist the jury,
instead of to explain the expert's credibility-based opinion,
here, none of Avila's testimony can be meaningfully sepa-
rated from the context of which it was a part. We therefore
conclude that the trial court erred in admitting the chal-
lenged testimony.
The same is true of Heskett's and Findlay's testi-
mony about their conclusions that SO had been sexually
abused, which we also quoted earlier. Again, in the abstract
or in some other context, Heskett's testimony as to whether
SO's statements were developmentally appropriate or her
observations of SO's physical characteristics and demeanor
ordinarily would not be, in and of themselves, impermissible
vouching. The same is true of Findlay's general description of
the circumstances that can point to a child's suggestibility or
the possibility that the child has been coached. But, also
again, the context differentiates that testimony in this case

Cite as 348 Or 346 (2010) 	363
from cases in which it might otherwise be admissible. That
context is their ultimate individual expert opinions, which we
held in Southard were not admissible. As with Avila's testi-
mony, we conclude that Heskett's and Findlay's testimony
constituted impermissible vouching, and defendant's objec-
tions to the testimony should have been sustained.
We turn to the challenged testimony concerning vic-
tim W. Moussa's testimony concerning W suffered from the
same defect. It is true that Moussa's testimony concerning W
being developmentally appropriate, and her description of
W's affect change, could be admissible in many circum-
stances. But that was not true here, because Moussa's testi-
mony was inextricably bound up with her conclusion that W
was sexually abused. Defendant's objections to her testimony
as impermissible vouching were well taken.
The state also contends that, even if Avila, Heskett,
and Findlay improperly commented on the credibility of SM
and SO, the similar objection to Moussa's testimony about W
was not well taken for another reason. The state argues
that
"the 	prohibition against one 	witness 	testifying about
whether another witness's testimony or out-of-court state-
ments are true or deceptive is limited to the testimonial
evaluation of another trial witness's statement. * * *A com-
ment that purports to evaluate the deceptiveness or truth-
fulness of a 'non-witness's out-of-court remarks is not sub-
ject to exclusion under this principle."
(Emphasis in original.) Therefore, the state argues, because
W did not testify at the trial, defendant's improper vouching
argument fails as it applies to W's statements.
In support of its position, the state relies on State v.
Odoms, 313 Or 76, 829 P2d 690 (1992). In that case, a woman
told the police that the defendant had kidnapped her and

364 	State v. Lupoli
then raped and sodomized her. Two police officers questioned
the defendant. The defendant initially denied knowing the
woman, and then eventually admitted that he knew her but
maintained that his sexual encounters with her were entirely
consensual. At the defendant's subsequent trial, only one of
the police officers testified. That officer recounted the conver-
sation that he and the other officer had had with the defen-
dant, including reporting that the other officer had told the
defendant that he, the other officer, did not think that a per-
son would simply make up allegations against another per-
son if there were not something to them. The defendant
unsuccessfully objected to that testimony as improper opin-
ion evidence about the complaining witness's credibility.
During the trial, the complaining witness testified for the
state; the defendant and the officer who made the challenged
statement did not testify. The defendant ultimately was con-
victed of the charged offenses.
On review, in considering the issue, this court in
Odoms first discussed its earlier opinion in Middleton, in
which the court held that one witness, expert or otherwise,
may not give an opinion on whether he believes another wit-
ness is telling the truth. Odoms, 313 Or at 82. The court in
Odoms distinguished Middleton, 	stating, "[T]he point of
Middleton was only to preclude the testimony by one trial
witness about whether another trial witness is telling the
truth." Id. (emphasis in original). On the other hand, the
court held, "a relevant out-of-court statement, recounted at
trial, generally may not be excluded merely because it is
phrased in the form of an opinion." Id. at 83. Explaining that
holding, the court stated that the rule against opinion evi-
dence fosters concrete answers by witnesses, but has no sen-
sible application to statements made out of court. Id.
Notwithstanding the court's emphasis on "trial wit-
nesses," it is evident from the foregoing that neither Odoms
nor Middleton is apposite. 9 Neither case even suggests, much
"In fact, in Odom.s. the purportedly vouching witness did not testify, but the
complainant did. And in Middleton, the main issue hefore the court was whether
an expert could testify that typical child sexual abuse victims deny or recant abuse
allegations when a family member is the alleged abuser. The court held that that
testimony, which did not directly express an opinion on the truth of the victim's

Cite as 348 Or 346 	365
less compels, the conclusion that a trial witness should be
permitted to give an opinion that a nonwitness complainant
was telling the truth. In fact, all of the reasons for preventing
one witness from vouching for another witness's credibility at
trial apply with equal or greater force when the non witness is
an unavailable complainant. In that circumstance, the defen-
dant does not have the ability to confront the complainant or
to impeach the accusations against him or her. Permitting a
trial witness to vouch for the credibility of the complainant in
such a situation would interfere with the ability of the trier of
fact to determine the truth of the allegations, and would be
highly unfair to the defendant. 10
In this case, the complainant, W, did not testify
against defendant because she was too young; defendant,
therefore, had no opportunity to confront her. Defendant
denied the accusations that she had made, and the surveil-
lance videotape was inconclusive. That meant that the only
information presented to the jury in support of W's allega-
tions came through the testimony of the adults who had
talked to her. Moussa testified that W was "developmentally
appropriate in her demeanor, in her verbal language presen-
tation, her general fund of knowledge," that she interacted
with Moussa, that she spoke clearly, and that "developmen-
tally she was on track," but that "there was a significant
change of affect when I did make statements about the night-
mares and with the lifting of her skirt in the gym." That
expert testimony, like Avila's, Heskett's, and Findlay's, may
have been admissible in the abstract, or in some other con-
text, but in this context it was not. The trial court erred in
failing to sustain defendant's objection to Moussa's vouching
testimony.
------~··-------- -----·
testimony, explained to the jury the emotional underpinnings of the witness's
"superficially bizarre behavior," Middleton, 294 Or at 436, and was admissible
because it would help the jury "make a more informed decision in evaluating the
credibility of a testifying child." Id. at 437.
10 The use of expert testimony respecting the specific question whether some
other person is telling the truth raises questions concerning a witness' qualifica-
tions, the helpfulness of the opinion, and the likelihood of undue confusion of issues
or prejudice to the other party. See generally David H. Kaye, David E. Bernstein,
and Jennifer L. Mnookin, The New Wigmore: Expert Evidence § 1.5, 23-25 (2004)
(examining rule and its rationale).

366 	State v. Lupoli
Based on the foregoing analysis, we hold that the
trial court erred in admitting the specified expert opinions
concerning victims SM, SO, and W. 11 Defendant's convictions
concerning those victims must be reversed, and the case
remanded to the trial court for a new trial. We turn at last to
the somewhat different issues surrounding defendant's con-
viction for attempted sexual abuse ofT.
Defendant argues that the trial court erred in deny-
ing his motion for judgment of acquittal on the charge con-
cerning T. In reviewing a trial court's denial of a motion for
judgment of acquittal, the court considers whether any
rational trier of fact, accepting reasonable inferences and
making reasonable credibility choices, could have found the
essential elements of the crime beyond a reasonable doubt.
State v. King, 307 Or 332, 339, 768 P2d 391 (1989). In so
doing, the court reviews the facts in the light most favorable
to the state and draws all reasonable inferences in the state's
favor. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998). For
purposes of analyzing the sufficiency of the evidence, no dis-
tinction exists between direct and circumstantial evidence.
Id. However,
"circumstantial evidence, like direct evidence, must indi-
cate guilt to the extent that there is no reasonable doubt of
that conclusion. In deciding whether a jury issue exists,
* * * inferences of innocence [must] be considered that may
be drawn from the facts in evidence (as found in the State's
favor) or from the paucity of such facts, and if they are suf-
ficient to create a reasonable doubt, the case may not be
submitted to the jury."
State v. Krummacher, 269Or125, 139, 523 P2d 1009 (1974).
Defendant was charged with attempted first-degree
sexual abuse of T. First-degree sexual abuse is defined in
ORS 163.427 as follows:
11 We also conclude that the error was not harmless. We have held thata harm-
less error is one that has "little likelihood" of affecting the verdict. Keller, 315 Or at
285 (so defining harmlessness). In this case, there was no physical evidence of
abuse; the children's credibility, therefore, was paramount. In that circumstance,
we cannot conclude that there was "little likelihood" that the experts' testimony
affected the verdict.

Cite as 348 Or 346 (2010) 	367
"(1) 	A person commits the crime of sexual abuse in the
first degree when that person:
"(a) 	Subjects another person to sexual contact 1121 and:
"(A) 	The victim is less than 14 years of age[.]"
Under ORS 161.405(1), a person is guilty of an attempt to
commit a crime "when the person intentionally engages in
conduct which constitutes a substantial step toward commis-
sion of the crime." Defendant argues that, viewing the evi-
dence in the light most favorable to the state and drawing all
reasonable inferences in the state's favor, there was no evi-
dence from which the jury reasonably could infer that defen-
dant intentionally engaged in conduct that constituted a sub-
stantial step toward sexual abuse ofT.
We begin by summarizing the evidence pertaining to
the charge involving T. T did not testify at the trial, and, as
discussed above, she never indicated to anyone that defen-
dant had tried to touch her or had done anything to her that
could be 	interpreted as 	constituting a 	substantial step
toward sexually abusing her. Although T received a CARES
evaluation, no health care professional testified about that
evaluation and no documentary evidence relating to that
evaluation was admitted at the trial. The state's case con-
sisted of the testimony of T's mother and Mastrisciano, the
surveillance videotape, and defendant's statements on cross-
examination.
T's mother stated that Twas three years old and she
identified T on the videotape. She testified that she and her
husband had been contacted by Mastrisciano about the alle-
gations concerning defendant, that they met Mastrisciano at
the police station, that they watched the videotape, and that
she 	subsequently took T to 	CARES for 	an 	evaluation.
Mastrisciano testified that he contacted T's parents. He
identified T and defendant in a still photo taken from the
12 "Sexual contact" is defined as "any touching of the sexual or other intimate
parts of a person or causing such person to touch the sexual or other intimate parts
of the actor for the purpose of arousing or gratifying the sexual desire of either
party." ORS 163.305(6).

368 	Statev.
videotape, and he testified that T was wearing a dress and
was sitting directly across from defendant in that picture.
The surveillance videotape was played for the jury. 13
The tape shows T entering the Kids Club, where defendant is
sitting on a plastic semicircular couch with his back toward
the camera. T walks up to defendant and sits down beside
him. When Tis sitting on the couch, only the back of her head
and shoulders can be seen. Defendant's back is flat against
the couch, but his face is turned toward T. Defendant leans
forward, and T gets up, walks in front of him, and sits on a
short wall directly across from him. Defendant picks up a ball
and begins to throw it back and forth with her. T comes back
and sits down beside defendant again. Defendant then gets
off the couch, picks up the ball, and goes to his knees on the
floor in front of her. A few seconds later, defendant lowers his
upper body so that his head is at the level with the seat of the
couch. The frame at that moment does not show what direc-
tion defendant is looking, and it only shows the back of T's
head and shoulders. A few seconds after that, defendant sits
back on the couch next to T. A few seconds later, defendant
again picks up the ball and turns his upper body toward T.
He then moves to T's other side on the couch and lowers his
head in front of hers, while she lowers her head at the same
time. The camera's view of defendant's head at that point is
blocked by the back of T's head. When they raise their heads
two or three seconds later, defendant is holding the ball.
Defendant and T lower and raise their heads once more. T
again goes to the small wall across from defendant and sits
down, and they begin throwing the ball back and forth again.
A few seconds later, T comes back to the couch and sits down
beside defendant. Then, less than nine minutes after T
walked into the Kids Club, another adult comes and leads T
away and defendant leaves the Kids Club.
During the state's cross-examination of defendant,
defendant vigorously denied having touched any child or try-
ing to look at her underwear, but he did admit that he was
sitting next to T, that they both looked down at two points,
that he was sitting close enough to T to touch her genital
As noted, the tape consists of a series of still photographs. It includes a clock
that permits time intervals to be identified. There is no audio portion.

Cite as 348 Or 346 	369
area, and that, when he and she were looking down, he could
have been looking at her lap, among many other things.
To prove that defendant committed the crime of
attempted first-degree sexual abuse of T, the state had to
prove beyond a reasonable doubt that defendant intended to
engage in conduct that constitutes a substantial step toward
subjecting T to sexual contact. ORS 163.427; ORS 161.405. If
the state failed to do so, the trial court was required to grant
defendant's motion for judgment of acquittal.
As discussed above, T never personally stated to
anyone that defendant had done anything that could be con-
strued as a substantial step toward subjecting her to sexual
contact. Viewed in the light most favorable to the state, the
surveillance videotape and defendant's testimony on cross-
examination demonstrate only that defendant had the oppor-
tunity to commit the crime of first-degree sexual abuse. The
tape and defendant's testimony prove that defendant sat
near enough to touch T and that he looked in the direction of
her lap. Proximity alone, however, is not a substantial step;
instead, it is a circumstance that makes a substantial step (if
one is taken) meaningful. A rational trier of fact was not enti-
tled on this record to find beyond a reasonable doubt facts
that constituted not only opportunity, but also a substantial
step toward subjecting T to sexual contact.
The state argues in the alternative that defendant's
conduct toward the other children constituted a pattern or
practice of abuse, and therefore was admissible under OEC
404(3) 14 to establish his propensity or intent to commit the
crime. In our view, however, the state's argument misses the
point. To prove an attempted crime, the state must present
evidence that a defendant engaged in conduct constituting a
"substantial step" toward committing that crime. Even when
viewed in the light most favorable to the state, however, the
videotape of defendant's conduct with respect to SM, SO, and
OEC 404(3) provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident."

370
W does not show that, with respect to T, defendant had pro-
ceeded beyond having the opportunity to commit a crime to
actually taking a "substantial step" toward the commission of
that crime.
We hold that a rational jury could not have found
beyond a 	reasonable 	doubt 	that 	defendant intended to
engage in conduct that constituted a substantial step toward
the commission of the crime of first-degree sexual abuse ofT.
We therefore hold that the trial court erred in failing to grant
defendant's motion for judgment of acquittal on that count
and that the Court of Appeals erred in affirming that convic-
tion. Defendant's conviction for attempted first-degree sexual
abuse of T therefore must be, and it is, reversed.
The decision of the Court of Appeals and the judg-
ments of the circuit court are reversed as follows: The judg-
ment of conviction against defendant for attempted first-
degree sexual abuse of victim T is reversed, and the case is
remanded to the circuit court for entry of a judgment of
acquittal on that charge. The judgments of conviction against
defendant for first-degree sexual abuse of victims SM and
SO, and the judgment of conviction against defendant for
attempted first-degree sexual abuse of victim Ware reversed,
and the case is remanded to the circuit court for further
proceedings.