Submitted March 22, 2018
County Circuit Court 15CR57827; Courtland Geyer, Judge.
G. Lannet, Chief Defender, and Kristin A. Carveth, Deputy
Public Defender, Criminal Appellate Section, Office of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Rolf C. Moan, Assistant Attorney General, fled
the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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.
and remanded on Counts 1, 2, and 3; otherwise affirmed.
Or.App. 15] HADLOCK, P.J.
appeals a judgment of conviction for three counts of
first-degree sexual abuse. 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).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.
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
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."
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.
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. ...