Argued and Submitted: September 5, 2013.
Umatilla County Circuit Court. CV101065. Linda Louise Bergman, Senior Judge.
Rankin Johnson, IV, argued the cause for appellant. On the brief were Erin Galli and Chilton & Galli, LLC.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge. Nakamoto, J., dissenting.
[261 Or.App. 761] EGAN, J.
Petitioner appeals a general judgment that denied him post-conviction relief. In 2007, petitioner was convicted on four counts of first-degree sexual abuse following a jury trial at which a doctor testified that he had diagnosed sexual abuse in three of the five alleged child victims. Petitioner appealed to this court; his appellate counsel argued that admitting those diagnoses was error because they amounted to improper comments on the truthfulness of the child witnesses. We affirmed petitioner's conviction; the Supreme Court subsequently denied review. Petitioner sought post-conviction relief, asserting, among other things, that his appellate counsel
was constitutionally inadequate for failing to raise an argument that the admission of the doctor's diagnoses of sexual abuse violated OEC 403. Petitioner asserts that his appellate counsel should have raised that issue in this court after the Supreme Court accepted the petition for review in State v. Southard, 347 Or. 127, 218 P.3d 104 (2009). We affirm.
The facts are not in dispute. Petitioner was charged with six counts of first-degree sexual abuse and two counts of sodomy. One of the sexual abuse counts and the two sodomy counts were dismissed, and petitioner was tried by a jury on the remaining five sexual-abuse counts. The state alleged that petitioner touched the breasts of five children, S, C, T, H, and A, while working as a receptionist at a children's health clinic. All five of the children testified at trial.
During the state's case, it sought to introduce the testimony of Dr. Oddo, a pediatrician and the director of the Jackson County Children's Advocacy Center. Petitioner objected to Oddo's testimony. Following an offer of proof outside the jury's presence, the trial court overruled petitioner's objection and allowed Oddo to testify.
Oddo began by stating that he had extensive experience in child sexual abuse cases and that he had conducted interviews and examinations of approximately 1,500 to 1,800 children over a seven-year period. He also stated [261 Or.App. 762] that he had attended national conferences specializing in child abuse and that he was responsible for training others to diagnose sexual abuse. Oddo testified that he had interviewed S, C, T, H, and A for the purpose of evaluating whether they had been sexually abused. Oddo outlined the procedure he generally followed in assessing a sexual abuse claim. He explained that he began by interviewing each child's parent or caregiver; he would then interview the child to gather his or her " history" in order " to find out what has happened to them to figure out what I'm go[ing to] do with them when I'm done examining them and taking the history." Finally, Oddo would perform a " head to toe" physical exam, which ordinarily included an inspection of the child's genitalia and rectal area for signs of sexual abuse.
S reported to Oddo that there had been an incident at petitioner's place of employment. With respect to the results of S's physical exam, Oddo stated that " [S] had a normal exam in regards to sexual abuse." The state then asked Oddo whether he had been able to make a diagnosis of S. He replied, " Yes. My assessment was[,] based on the history and physical exam[,] she was sexually abused."
The state next asked Oddo about C, who had refused to allow him to perform an examination of her genitalia or rectal area. When asked whether he was able to make a diagnosis with respect to C, Oddo replied, " Yes. I'm able to make a diagnosis that she was sexually abused based on her history."
When asked about T, Oddo stated that he obtained " the same background information" from her as he had from S. He then stated that " [s]he had a normal physical exam." The state then asked whether he had been able to make a diagnosis of T; he replied, " She was sexually abused."
With respect to H, Oddo stated that he had performed an examination of her pursuant to the same procedures described above. Oddo noted that H reported an incident of abuse that took place many months before the other alleged incidents. The state asked Oddo whether the delay in H's reporting " play[ed] into [his] diagnosis in any way." He replied that such a delay was not " worrisome" and stated " [t]hat's the most common thing we see that they do." Aside [261 Or.App. 763] from the reference to a " diagnosis" in the above-quoted question, the state did not directly ask Oddo whether he had diagnosed H as having been sexually abused.
Similarly, Oddo stated that he had performed an examination of A and that A had reported an incident of abuse at petitioner's workplace. Oddo was not asked to provide a diagnosis for A.
After he had outlined his examinations of the children, the state asked Oddo whether
he had experience with children fabricating incidents of sexual abuse:
" [ODDO]: Yes.
" [THE STATE]: Could you describe that please. Is that unusual? And just in your training and experience why that phenomenon would happen?
" [ODDO]: The most common cases we see are actually in teenagers for a variety of reasons. If they have sexual contact with someone and they decide that that was not a bad [ sic ] idea, or if they think they could potentially be in trouble with their parents for that reason, or--there's a lot of reasons. But we have teenagers that will come in and report sexual assault when it does not happen.
" There are cases where, due to a caregiver wanting to get back at someone[,] or custody disputes, where a child could potentially be coached into a false disclosure of sexual abuse. We see those as well.
" [THE STATE]: You said teenagers. Are the girls whose exams you've already spoken about here, are those latency age children?
" [ODDO]: Yeah. They're preteens.
" [THE STATE]: Okay. In your training and experience, have you had a child of that age make up an incident?
" [ODDO]: A child of that age.
" [THE STATE]: Latency age. Tell us what that is, latency age?
" [ODDO]: Well, I mean really, you know, it's sort of like for medicine when you become a teenager is when puberty starts, but for most people's diagnosis, it's gonna be like 12 [261 Or.App. 764] and above for girls, they're gonna be started to consider to be teenagers. So, prior to age 12 would be pre-teen.
" [THE STATE]: Have you had children in that age range make up a sexual abuse incident?
" [ODDO]: Yes.
" [THE STATE]: And in your training and experience, are there particular factors or red flags that you look for?
" [ODDO]: Yeah. In pre-teens, it would be because they are out to get someone. I mean, if they have a stepfather that they did not like, didn't want to live with, or something like that where they're out to get them, they can make a false report of sexual abuse.
" [THE STATE]: They're out to get somebody. You said a stepfather or someone else. In your training and experience, have those people been related to the false reporter?
" [ODDO]: As best as I can remember. There's actually not that many cases. But as best I can remember in pre-teens, most of them will be an issue of someone living in their home, making up that story.
" [THE STATE]: In your training and experience, has the false incident regarding children that age included more than one child?
" [ODDO]: It is possible that there [will] be siblings in those cases. I don't remember a specific case where there are siblings, but there is a possibility. 'Cause I don't remember the ages.
" [THE STATE]: Oh, that's okay. What about unrelated, back to the--I'm still referencing the last question. In your training and experience, more than one reporter that's not related to each other?
" [ODDO]: In pre-teens, I haven't seen that.
" [THE STATE]: It is possible?
" [ODDO]: It is possible.
" [THE STATE]: How long have you been doing this again?
" [ODDO]: Since 1993.
" [THE STATE]: Approximately 14 years?
[261 Or.App. 765] " [ODDO]: Yes.
" [THE STATE]: And you've never seen the phenomenon I've just described?
" [ODDO]: I mean, one of the issues is it can be difficult for me to tell whether for sure if someone is making it up.
" [THE STATE]: Why is that?
" [ODDO]: Because I'm not really an investigator. I'm not gonna talk to the suspect, I'm not going to go and talk to corroborating witnesses. I'm just gonna take a history from the patient. There are times when we have teenagers that are friends that come in and make a report of sexual abuse. And for me to know that
they were fabricating it, it's gonna be hard for me to know, just ...