State v. Feller
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FILED: December 29, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. DOUGLAS ALFRED FELLER, Defendant-Appellant. Clackamas County Circuit Court CR0800575 A141928 Ronald D. Thom, Judge. Argued and submitted on November 15, 2011. Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before Ortega, Presiding Judge, and Brewer, Chief Judge, and Sercombe, Judge. ORTEGA, P. J. Reversed and remanded. 1 ORTEGA, P. J. 2 Defendant appeals a judgment convicting him of two counts of first-degree 3 sodomy, ORS 163.405, one count of first-degree unlawful sexual penetration, ORS 4 163.411, and six counts of first-degree sexual abuse, ORS 163.427. He contends that, in 5 the absence of supporting physical evidence, the trial court erred in admitting a 6 physician's diagnosis of "concerning" for sexual abuse. See State v. Southard, 347 Or 7 127, 218 P3d 104 (2009). Although defendant acknowledges that he did not raise that 8 issue before the trial court, he argues that admission of that diagnosis was plain error 9 under Southard. See ORAP 5.45(1).1 We agree with defendant that the trial court 10 committed plain error in admitting the diagnosis and that it is proper for us to 11 affirmatively exercise our discretion to correct the error. See Ailes v. Portland Meadows, 12 Inc., 312 Or 376, 382, 823 P2d 956 (1991). Therefore, we reverse and remand.2 Defendant was a friend of the victim's family and co-owned a piece of 13 14 property with the victim's father. The victim's family lived in a house on the property, 15 and defendant also lived on the property in a travel trailer. The victim, a five-year-old 16 boy, told his babysitter that defendant had licked his "pee-pee" and that "he had to touch 17 [defendant's] pee-pee." He repeated those statements the next day to his mother, who 18 soon thereafter called the child abuse hotline, and eventually scheduled an appointment 1 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 record." 2 Because we reverse and remand based on the admission of the diagnosis, we do not address defendant's remaining contentions on appeal. 1 1 for the victim at CARES Northwest and also talked with a detective about the victim's 2 statements. At CARES, the victim was examined by Dr. Dan Leonhart and interviewed 3 by a child abuse interviewer. The examination revealed no physical evidence of abuse. 4 However, based on the victim's spontaneous disclosure of abuse to his babysitter as well 5 as his statements to his mother, Leonhart made a diagnosis of "concerning" for sexual 6 abuse. Leonhart testified about that diagnosis during the trial with no objection from 7 defendant. 8 9 In his testimony, Leonhart explained that "concerning" and "highly concerning" are in the "same ballpark" and that he often uses the terms 10 "interchangeably." He testified that his diagnostic terminology is to address whether he 11 does not "think there's anything to suggest [the abuse] happened" or whether he is 12 "concerned that something happened, or [is] actually diagnosing that something 13 [happened]--* * * child maltreatment, in this case it would be sexual abuse." According 14 to Leonhart, in this case, the most concerning thing was the victim's "accidental" 15 disclosure to the babysitter, and he noted that "the child isn't intending to say something 16 that's really going to get this process going, they are just saying something in [the] 17 context of interacting with someone[.]" There was also testimony presented at trial 18 regarding the CARES treatment recommendations following the examination. Those 19 recommendations included that the victim have no contact with defendant and receive 20 individual counseling, as well as a support group for the victim's parents, and that the 21 victim's parents not question the victim further about the abuse. 22 As noted, defendant argues on appeal that the admission of Leonhart's 2 1 diagnosis, in the absence of physical evidence of abuse, was plain error and that we 2 should exercise our discretion to correct the error. The state responds that because the 3 doctor's diagnosis was "concerning" for sexual abuse rather than a straight sexual abuse 4 diagnosis, there is no plain error under Southard. Furthermore, the state contends that 5 there are "competing inferences about whether defendant wanted Leonhart's 'diagnosis' 6 admitted into evidence." (Boldface omitted.) We disagree. 7 Since Southard, this court had repeatedly held that, in the absence of 8 physical evidence of abuse, a trial court's admission of a medical expert's diagnosis of 9 sexual abuse is plain error. See, e.g., State v. Potts, 242 Or App 352, 353, 255 P3d 614 10 (2011); State v. Clay, 235 Or App 26, 30, 230 P3d 72 (2010) ("[T]he trial court's 11 admission, following Southard, of a medical expert's diagnosis of child sexual abuse in 12 the absence of physical evidence satisfies the requisites for 'plain error' under ORAP 13 5.45(1)[.]"); State v. Lovern, 234 Or App 502, 508-12, 228 P3d 688 (2010) (it is plain 14 error to admit a diagnosis of child sexual abuse in the absence of physical evidence). We 15 have so held even in circumstances where the diagnosis was "highly concerning" for 16 sexual abuse. See State v. Arriaza, 236 Or App 456, 457-58, 237 P3d 222 (2010) (the 17 trial court's admission of a doctor's diagnosis of "highly concerning for sexual abuse" was 18 error apparent on the face of the record); State v. Merrimon, 234 Or App 515, 517, 228 19 P3d 666 (2010) (the trial court committed plain error in admitting, in the absence of 20 physical evidence, a diagnosis of "highly concerning of sexual abuse"). Most recently, in 21 State v. Volynets-Vasylchenko, 246 Or App 632, ___ P3d ___ (2011), a case where the 22 diagnosis itself was not admitted into evidence, we held that the trial court committed 3 1 plain error under Southard in admitting, in the absence of physical findings, treatment 2 recommendations that implied that a diagnosis had been rendered. 3 In Merrimon, the state attempted to distinguish the circumstances from 4 those presented in Southard, pointing to the fact that the diagnosis was not a "definitive 5 diagnosis" like that at issue in Southard. Merrimon, 234 Or App at 520. We explained 6 that, "[l]ike the definitive diagnosis at issue in Southard--indeed, perhaps more so--a 7 diagnosis of 'highly concerning of sexual abuse' without confirming physical evidence 8 has marginal probative value." Id. at 520-21. Furthermore, "such a diagnosis carries 9 with it 'the expert's implicit conclusion that the [alleged] victim's reports of abuse are 10 credible.'" Id. at 521 (quoting Southard, 347 Or at 141) (brackets in Merrimon). 11 Similarly here, the fact that the doctor made a diagnosis of "concerning" for sexual abuse 12 is not a basis on which to distinguish this case from the many cases in which we have 13 concluded that the admission of a diagnosis of sexual abuse in the absence of physical 14 evidence is plain error. The doctor in this case explained that he uses the terms 15 "concerning" and "highly concerning" for child sexual abuse interchangeably. As in 16 Merrimon, such a diagnosis has marginal probative value and carries with it the implicit 17 conclusion that the victim's report is credible. 18 Nor do we find convincing the state's assertion that there are competing 19 inferences regarding whether defendant wanted the diagnosis admitted. In support of its 20 contention, the state points to defendant's discussion of the diagnosis during opening and 21 closing arguments, which emphasized that the doctor was only "concerned" about sexual 22 abuse. According to the state, "it is inferable that defense counsel intended to allow Dr. 4 1 Leonhart's 'diagnosis' and testimony to create reasonable doubt as to whether [the victim] 2 had been sexually abused." We rejected a similar argument in Lovern. In that case, the 3 state contended that "the defense may have made a tactical choice not to properly object 4 to [the medical expert's] diagnosis so that it could use that evidence to its own 5 advantage[.]" 234 Or App at 511. Based on the circumstances, we concluded that the 6 inference that the state proposed was implausible. Similarly here, we are unpersuaded 7 that there is a plausible inference that defendant did not object to the evidence because he 8 wanted to use it to support his case. At the time of the trial in this case, which occurred 9 before Southard was decided, this type of diagnosis evidence was understood to be 10 admissible. See State v. Wilson, 121 Or App 460, 465-66, 855 P2d 657, rev den, 318 Or 11 61 (1993) (the trial court did not err in admitting, in the absence of physical evidence, 12 expert testimony that diagnosed a child as a victim of sexual abuse). Given that state of 13 the law, the only inference that we draw from defendant's failure to object is that counsel 14 understood that an objection would be futile and, instead, attempted, as much as possible, 15 to combat any adverse effect the expert evidence would have on the jury's view of the 16 case.3 In sum, as we have concluded in "dozens of cases involving unpreserved 17 18 claims of error under Southard," Volynets-Vasylchenko, 246 Or App at 638, we conclude 19 that the trial court committed plain error in admitting the evidence in question. 3 For the same reasons, we are unpersuaded by the state's assertion that we should not exercise our discretion to correct the error in this case because "the record supports the inference that defendant made a conscious tactical decision not to object to Dr. Leonhart's diagnosis." 5 1 Furthermore, for the reasons set forth in Lovern and Merrimon, we conclude that it is 2 appropriate to exercise our discretion to correct the error in this case. 3 Reversed and remanded. 6
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