On review of the Court of Appeals.*fn1 CC C051693CR; CA A135246;
The opinion of the court was delivered by: Walters, J.
Argued and submitted June 12, 2012.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
In this criminal case, we consider whether a physician's conclusion that defendant physically had abused a child met the requirements for admissibility of scientific evidence. We hold that it did not, that the trial court erred in admitting the evidence , and that the error was not harmless. Consequently, we reverse defendant's convictions and remand for further proceedings.
The child in this case, C, was approximately 18 months old when he
arrived at the emergency room with multiple injuries, including a
golf-ball-sized lump on his forehead and a fractured skull. The state
accused defendant of causing C's injuries and charged him with two
counts of criminal mistreatment and first- and third-degree assault.
To prove first-degree assault, the state had to show that defendant
had caused C "serious physical injury," defined as injury that
"creates a substantial risk of death." ORS 163.185,*fn2
At trial, defendant acknowledged that he had caused C's forehead injury but claimed that he had done so accidentally and that that injury had not created a "substantial risk of death." As to C's more serious injury -- the skull fracture -- defendant asserted that it was not he, but C's aunt, who was the responsible actor.
The state called a physician employed by CARES Northwest, a child abuse assessment center, as one of its witnesses. Over defendant's OEC 702*fn4 and OEC 403*fn5 objections, the trial court admitted the physician's testimony and her written report diagnosing C as victim of child abuse and concluding that "[defendant] clearly caused [C's] injuries" and that "[C] was physically abused by [defendant]." The jury convicted defendant of third-degree assault and two counts of criminal mistreatment. The jury acquitted defendant on the charge of first-degree assault, but found him guilty of the lesser-included offense of second-degree assault. Like first-degree assault, second-degree assault requires a finding that the inflicted injury created a substantial risk of death. ORS 163.175;*fn6 ORS 161.015(8).
On appeal, the Court of Appeals affirmed defendant's convictions. State v. Sanchez-Alfonso, 238 Or App 160, 162, 241 P3d 1194 (2010). The court separately considered the two aspects of the physician's diagnosis -- that C had been physically abused, and that defendant had been the perpetrator of that abuse. The court concluded that the former was scientifically valid and admissible, but declined to decide whether the same was true for the latter. Id. at 167-68. Even if the trial court had erred in admitting the physician's conclusion that defendant had caused C's injuries, the Court of Appeals reasoned, the error was harmless because defendant "never posited that anyone other than defendant himself caused the physical injuries." Id. at 170. The issue "[a]t the heart" of the case, the court opined, was defendant's mental state when he injured C; the challenged evidence, by contrast, "went to a part of the case that was not meaningfully at issue, namely, defendant's role as the causal agent of those injuries." Id.
We allowed defendant's petition for review. Defendant contends that the physician's diagnosis that "[C] was abused by [defendant]" was not admissible under OEC 702 and OEC 403 and State v. Brown, 297 Or 404, 687 P2d 751 (1984), State v. O'Key, 321 Or 285, 899 P2d 663 (1995),and State v. Southard, 347 Or 127, 218 P3d 104 (2009). Although the state acknowledges that the physician's conclusion that defendant had been the perpetrator of C's injuries was not admissible under those standards, it argues that that conclusion was not a part of the physician's medical diagnosis. Rather, the state asserts, the physician was only relating a fact that she considered to be undisputed at the time of her report -- that defendant was the sole individual present when C was injured. The state contends that the admission of the physician's conclusion was harmless because the jury would have considered the physician's testimony in that light.
The facts necessary to our review of the parties' arguments are undisputed. On the evening of May 12, 2005, defendant was living in an apartment with his girlfriend (mother) and C, his girlfriend's approximately 18-month-old son. C's aunt (aunt) also frequently spent time in the home. Mother was feeling ill and asked aunt and aunt's boyfriend to take her to the hospital, leaving C in defendant's care. Mother stayed at the hospital overnight. Early the next morning, defendant called mother and reported that he had fallen while holding C. Mother sent aunt back to the apartment to check on C. When aunt arrived, she found that C had a golf-ball-sized lump on his forehead.
Aunt took C to the hospital. In addition to the forehead injury, the emergency room physician found that C had swelling around the back of his head and ear, a contusion on his chin, and bruises on his back and right leg. A CAT scan revealed a fractured skull beneath the bruising behind C's ear. Suspecting child abuse, the physician contacted CARES Northwest. Dr. Skinner, a CARES physician, evaluated and treated C.
Skinner's report, prepared about two weeks after she examined C, stated: "[Defendant] clearly caused [C's] injuries which caused his hospitalization on May 13. [Defendant] provided at least three versions of what happened to [C] on May 12/May 13. His latest story is that he threw [C] into a dresser; [C] hit the dresser and slid down. Though this may have happened, I do not believe this is the whole story. When I saw [C] on Friday evening, he had approximately 10 areas of injury on his head and neck alone -- in addition to a skull fracture. If [C] had only one impact injury (the dresser -- then the floor) I would expect one or two areas of his head to be injured; not 10. I believe there were more injuries which took place that night. " * * * * *
"[C] was physically abused by [defendant]. This medical diagnosis is based on [C's] physical exam on Friday May 13, accompanied by review of statements ...