Summary
In State v. Childs, 243 Or.App. 129, 132, 259 P.3d 77, rev. den., 350 Or. 573, 258 P.3d 1240 (2011), we held that, although allowing the testimony was error, it was harmless, because the case was tried to the court, the court expressly stated that it “did not particularly rely” on the diagnosis, and the testimony about abuse was corroborated by photographs.
Summary of this case from State v. Volynets-VasylchenkoOpinion
Nos. 07C51844, A141225.
Argued and submitted April 11, 2011.
May 25, 2011.
Appeal from the Marion County Circuit Court, John B. Wilson, Judge.
Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French Thompson, LLP.
Andrew Morgan Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Rroger, Attorney General, and Mary H. Williams, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Rosenblum, Senior Judge.
ORTEGA, P. J.
Affirmed.
Following a trial to the court, defendant appeals from a judgment convicting him of two counts of first-degree unlawful sexual penetration, ORS 163.411; one count of first-degree sexual abuse, ORS 163.427; and one count of using a child in a display of sexually explicit conduct, ORS 163.670. We write only to address defendant's contention that the trial court erred in admitting, in the absence of any physical signs of abuse, a physician's diagnosis that the victim had been sexually abused, see State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), and reject defendant's other assignments of error without discussion.
Although defendant acknowledges that, before the trial court, he did not challenge the admission of the diagnosis, he contends that its admission was plain error under Southard, and we agree. See State v. Merrimon, 234 Or. App. 515, 520, 228 P.3d 666 (2010) (a "trial court's admission, following Southard, of a medical expert's diagnosis of child sexual abuse in the absence of physical evidence satisfies the requisites for `plain error' under ORAP 5.45"); see also State v. Jury, 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev den, 335 Or. 504 (2003) (plain error is evaluated under the law at the time the appeal is decided). However, given the existence of evidence in this trial to the court that corroborated the victim's account, and given the court's comments regarding the relative insignificance of the physician's diagnosis, we are convinced that that diagnosis did not likely affect the court's verdict in this case. Accordingly, we decline to affirmatively exercise our discretion to remedy the alleged error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).
Pursuant to ORAP 5.45(1), "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may consider an error of law apparent on the face of the record."
First, and in contrast to several of our recent cases relating to this issue, this case did not amount to merely a "swearing contest" between the victim, who was 11 years old at the time of trial, and defendant. See State v. Potts, 242 Or App 352, ___ P.3d ___ (2011) (discussing in plain error context); State v. Davilia, 239 Or. App. 468, 477-78, 244 P.3d 855 (2010); see also State v. Marrington, 335 Or. 555, 73 P.3d 911 (2003). Instead, in this case there was photographic evidence that corroborated the victim's account of the alleged abuse; specifically, a photograph of the victim's genital area, taken by defendant around the same time as the other alleged abuse, was admitted into evidence at trial. Indeed, the court noted that it considered the photographic evidence to fit in with the rest of the victim's account and to be "very damaging" to defendant's case as a whole.
Second, in explaining its verdict, the court specifically indicated that it did not particularly rely on the sexual abuse diagnosis in reaching its decision:
"I * * * note that we had testimony from Dr. McNaughton. * * * In this particular case she really didn't have much of value that she could tell me. I respect her judgment with regard to whether or not she can offer a medical opinion on sex abuse, but frankly I think the value of that is diminishing; particularly in light of recent case law. * * * I'm just saying I really — she offered [a] diagnosis but there's not physical evidence in the case that I can look at, so that doesn't help very much, if at all."
Taken together, those circumstances convince U.S. that the admission of the diagnosis did not likely affect the court's verdict in this case.
Given those considerations, we conclude that this case is not one where it is appropriate for U.S. to affirmatively exercise our discretion to correct any error in the admission of the diagnosis of child sexual abuse.
Affirmed.