Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Murillo-Bejar

Court of Appeals of Oregon

February 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
BERNABE MURILLO-BEJAR, Defendant-Appellant.

          Submitted March 22, 2018

          Marion County Circuit Court 15CR57827; Courtland Geyer, Judge.

          Ernest G. Lannet, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Criminal Appellate Section, Office of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment convicting him of three counts of first-degree sexual abuse. He contends that the trial court committed plain error in admitting, in the absence of supporting physical evidence, a police officer's testimony that the victim had received a diagnosis of "highly concerning for sexual abuse." Held: The trial court committed plain error in admitting the testimony regarding the diagnosis and it is appropriate for the Court of Appeals to affirmatively exercise its discretion to correct the error.

         Reversed and remanded on Counts 1, 2, and 3; otherwise affirmed.

         [296 Or.App. 15] HADLOCK, P.J.

         Defendant appeals a judgment of conviction for three counts of first-degree sexual abuse.[1] ORS 163.427. In his single assignment of error on appeal, defendant contends that the trial court plainly erred when it admitted a police officer's testimony that the victim, A, had received a diagnosis of "highly concerning for sexual abuse." See ORAP 5.45(1).[2]In defendant's view, in light of the Supreme Court's decision in State v. Southard, 347 Or. 127, 218 P.3d 104 (2009) (holding that evidence of an expert's diagnosis of child sexual abuse is inadmissible under OEC 403 in the absence of physical evidence of abuse), the court had an obligation to sua sponte strike that testimony. As explained below, we agree with defendant that the trial court plainly erred in admitting that evidence and that it is appropriate to exercise our discretion to correct that error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). Accordingly, we reverse and remand defendant's convictions for first-degree sexual abuse.

         The charges in this case arose as a result of disclosures of sexual abuse that A, a seven-year-old girl, initially made to her mother, M. Defendant and M had been involved in a romantic relationship on and off for several years and had one child together. Several months after M had given birth to that child, and when she and defendant were no longer in a relationship, A informed M that defendant had "raped" her. A later told M that defendant touched and smelled "her parts." M, who was a Spanish speaker, reported the disclosure to the police with the help of an English-speaking neighbor in October 2015. A deputy sheriff, Rejaian, responded to the call. Because her office does not interview children As age who are alleged to be victims of child abuse, Rejaian referred the case to Liberty House, a child abuse assessment center, so that A could be interviewed there. Rejaian received a report from Liberty House [296 Or.App. 16] on November 16, 2015, and she arrested defendant a week later. Defendant was ultimately charged with, among other things, several counts of first-degree sexual abuse.

         At trial, A testified that defendant had inappropriately touched her on several occasions. Perez, a forensic interviewer from Liberty House also testified about her interview of A. She described her education and experience, the interview process, and the disclosures A made during the interview. Perez also explained that a medical provider watches the interviews and conducts a physical examination of the child; that examination consists of a "head-to-toe checkup, including private parts."

         During the interview, A told Perez that defendant had "smelled her where he wasn't supposed to," that another time he touched her inappropriately, and that, on another occasion, defendant had licked her private part over her clothing. Given the type of contact A described, Perez testified that she would not expect a physical examination to result in any physical evidence of the touching and, indeed, the examination of A conducted by the medical provider did not reveal any physical evidence of sexual abuse.

         At trial, defendant testified that he had broken up with M a short time before A disclosed the abuse. According to defendant, M was upset and threatened him. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.