Submitted on February 21, 2013.
Washington County Circuit Court C092770CR Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.
Defendant appeals a judgment of conviction for second-degree unlawful sexual penetration, ORS 163.408, and first-degree sexual abuse, ORS 163.427. He assigns error to the trial court's admission of a nurse practitioner's testimony that she found the child complainant "highly concerning for sexual abuse based on what [the child] had previously said * * * [a]nd what [the child] told [her], " where there was no confirming physical evidence of sexual abuse. Defendant acknowledges that defense counsel did not move to strike the "highly concerning for sexual abuse" testimony after the witness offered it during defense counsel's cross-examination of her, but now argues that the trial court's failure to strike that testimony sua sponte represents an "error of law apparent on the record, " ORAP 5.45(1),  in light of State v. Southard, 347 Or 127, 218 P.3d 104 (2009), and State v. Lupoli, 348 Or 346, 234 P.3d 117 (2010). Although we agree that the nurse's testimony would have been inadmissible, we conclude that the trial court's failure to strike it is not plain error because it is plausible that counsel, aware of both Southard and Lupoli but nevertheless directing questions and argument at the nurse practitioner's ability to evaluate the child's credibility, made a strategic decision not to move to strike the testimony. Accordingly, we affirm.
The child, M, lived with her mother, her two brothers, and defendant, who had been romantically involved with M's mother since M was about five years old. On August 20, 2009, when M was 12 years old, defendant got into M's bed and pulled down M's pajama pants and underwear. Defendant touched her vagina, put his finger inside her vagina, and touched her breasts and bottom.
On December 11, 2009, M told her middle school counselor about an incident earlier that summer where defendant had inappropriately touched her chest and vagina. When a detective spoke with M later that day, M told her about the August 20, 2009, incident. M also told the detective about another encounter where defendant had touched her breast and three other encounters where defendant had touched her breast and her vagina. The officers discussed those claims with defendant, and he denied sexually abusing M. Later that day, however, defendant told police that one time he had touched M by accident and that he had an erection at that time. Defendant was arrested.
On December 21, 2009, M was evaluated by Daly, a nurse practitioner for CARES Northwest, a regional center that conducts child abuse assessments. Daly found no physical evidence of sexual abuse but, during the physical examination, M told Daly that M's "stepfather" had touched her in her vaginal area. Although Daly normally would have engaged in a "lengthy video taped forensic interview" as part of the CARES evaluation, M told Daly that she did not want to talk further about what had happened to her. About a month after Daly evaluated M, in January 2010, M told two police officers that she had previously lied about what defendant had done to her.
Defendant was charged with four counts of second-degree unlawful sexual penetration and 10 counts of first-degree sexual abuse. At trial, the state offered Daly as "an expert in child sexual abuse." On direct examination, Daly did not reveal any diagnosis or any recommendations she made for M, and the prosecutor specifically stated that he was not asking for a diagnosis. Daly did testify, however, that she "did not diagnose sexual abuse" because she did not get "additional detail" from the formal interview.
Defense counsel pursued that lack of detail on cross-examination. Daly admitted that, as summarized in the CARES evaluation she prepared, M reported to the Department of Human Services (DHS) that defendant "did this only one time, " but "the police report [was] different than what [Daly] received in the DHS report." Defense counsel sought to emphasize that, given the lack of a formal interview, Daly's evaluation was based largely on the police and DHS reports:
"Q. So you try and make them feel comfortable? Right?
"A. Well, * * * I do an examination with them, and generally they've been there since 8:30, and * * * the interview doesn't usually start until 10:30, so I offer them something to eat at that point.
"Q. Okay, in this case as you testified, [M] did not want to participate in that next portion of the evaluation, did she?
"A. She didn't want to talk about it at all.
"Q. Did you make any attempt to encourage her to talk about it?
"A. I asked her * * * as I said she was whispering, hunched up and appeared terrified, and as I stated previously she had provided significant detail about this previously. So, when she said no, I did not try to push her.
"Q. So, for the purpose of this [CARES] evaluation you relied on almost complete[ly] the DHS report and the police report?
"A. If you note I said this was highly concerning for sexual abuse based on what she had previously said.
"Q. And you base--
"A. And what she told me.
"Q. Right, and again we're not going to talk about any diagnosis as you--
(Emphases added.) Defense counsel offered no objection to the testimony highlighted above, nor did counsel move to strike that testimony or seek a curative instruction.
Ultimately, the jury found defendant guilty on three counts of second-degree unlawful penetration and eight counts of first-degree ...