State v. Vidal
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FILED: September 21, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. DAVID GEORGE VIDAL, Defendant-Appellant. Clackamas County Circuit Court CR0801614 A142579 Jeffrey S. Jones, Judge. Argued and submitted on July 28, 2011. David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief was John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Kristen G. Williams, Assistant Attorney General. Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.* BREWER, C. J. Affirmed. *Brewer, C. J., vice Sercombe, J. 1 BREWER, C. J. 2 Defendant was convicted on two counts of first-degree rape, three counts of 3 first-degree unlawful sexual penetration, and one count each of first-degree sodomy and 4 first-degree sexual abuse. ORS 163.375; ORS 163.411; ORS 163.405; ORS 163.427. 5 The victim of the crimes was a neighbor child who was approximately eight years old 6 when the crimes occurred. On appeal, defendant raises numerous challenges to his 7 convictions and sentences. We reject without discussion each of defendant's arguments 8 except his argument that the trial court committed plain error by admitting into evidence 9 expert medical testimony concerning a diagnosis of child sexual abuse. As explained 10 below, because we conclude that any error in that respect is not apparent on the face of 11 the record, we affirm. 12 Because defendant was convicted, we summarize the pertinent facts in the 13 light most favorable to the state. State v. Gibson, 338 Or 560, 562, 113 P3d 423, cert 14 den, 546 US 1044 (2005). The victim, MH, regularly came to defendant's apartment to 15 play with defendant's son when both children were approximately eight years old. 16 Defendant and the victim's family became friends, and the victim was permitted to spend 17 the night at defendant's apartment when his son was there. On several different 18 occasions, defendant sexually assaulted the victim. The victim told her mother about the 19 assaults, and the victim subsequently was interviewed and physically examined at The 20 Children's Center, a private nonprofit organization that specializes in the assessment of 21 child sexual abuse. 1 1 In her interview at The Children's Center, MH described the sexual abuse in 2 a manner consistent with her later testimony at trial. After the interview was conducted, 3 O'Dell, a pediatric nurse practitioner employed by The Children's Center, examined the 4 victim. She observed several irregularities in MH's hymen. In particular, she observed 5 decreased hymenal tissue and what she described as "angularities" at several locations on 6 the posterior of the hymen. O'Dell testified that a person can be born with such 7 irregularities on the anterior part of the hymen, but that irregularities on the posterior of 8 the hymen can indicate a penetrative injury caused by abuse or assault. Regarding the 9 irregularities in MH's hymen, O'Dell stated that "just looking at it by itself, yes, it would 10 be significant to me." When asked if that type of finding "is indicative of penetration," 11 O'Dell responded, "Yeah. It's suggestive of it, yes." She then explained that other types 12 of injuries to a child's genital region, such as an injury caused by falling on a bicycle, 13 would "not normally" cause an injury to the posterior region of a child's hymen. O'Dell 14 explained that the physical findings were "significant" because the victim's hymenal 15 irregularities could have been caused by a penetrating injury. She testified that she made 16 a diagnosis of child sexual abuse based on four factors: the history given to the 17 Children's Center, the "physical examination findings," the existence of factors that may 18 increase the risk of abuse, and MH's "clear, detailed statements." On cross-examination, 19 O'Dell was asked if the irregularities in MH's hymen "could be a variation of normal" or 20 "could be something besides abuse," and she responded, "Yes." 21 Defendant did not object to O'Dell's testimony concerning her diagnosis. 2 1 On appeal, he asserts that the admission into evidence of O'Dell's diagnosis constituted 2 plain error, citing State v. Southard, 347 Or 128, 218 P3d 104 (2009).1 3 In Southard, the issue was whether expert medical testimony diagnosing a 4 child with sexual abuse was admissible into evidence "in the absence of any physical 5 evidence of abuse." Id. at 142. The alleged sexual offenses in Southard concerned oral 6 sodomy; the medical examination of the victim "did not reveal any physical evidence of 7 sexual abuse." Id. at 130-31. The physician who examined the child nonetheless 8 diagnosed sexual abuse "after consulting with the social worker who had interviewed the 9 boy[.]" Id. at 132. As an initial matter, the court concluded that the medical diagnosis of 10 sexual abuse was scientifically valid evidence, in light of the various factors set out in 11 State v. Brown, 297 Or 404, 687 P2d 751 (1984). Southard, 347 Or at 133-39. 12 The court in Southard then turned to the question whether the evidence 13 should nonetheless have been excluded as unduly prejudicial under OEC 403. The court 14 determined that the medical diagnosis in that case did not tell the jury anything that it was 15 not capable of determining for itself, because "the criteria that the staff used to decide 16 whether to credit the boy's testimony are essentially the same criteria that we expect 17 juries to use every day in courts across this state to decide whether witnesses are 18 credible." Id. at 140. On balance, the court assessed the risk of prejudice as great, 19 because "the diagnosis came from a credentialed expert, surrounded with the hallmarks of 20 the scientific method[.]" Id. The court concluded: 1 The trial in this case occurred before Southard was decided. 3 1 2 3 4 5 6 7 8 9 "Our holding today is narrow. The only question on review is whether a diagnosis of 'sexual abuse'--i.e., a statement from an expert that, in the expert's opinion, the child was sexually abused--is admissible in the absence of any physical evidence of abuse. We hold that where, as here, that diagnosis does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403." Id. at 142. Defendant relies on Southard and our subsequent decision in State v. Lovern, 234 Or App 502, 228 P3d 688 (2010), for the proposition that the admission of 10 the medical diagnosis in the present case constituted plain error that obviates the 11 necessity of preservation of the error before the trial court. See State v. Brown, 310 Or 12 347, 355, 800 P2d 259 (1990) (an error is apparent on the face of the record if the error is 13 one of law, the legal point is not reasonably in dispute, and the court need not go outside 14 the record or choose between competing inferences to find it). In this case, we conclude 15 that the legal point is reasonably in dispute, and, accordingly, we do not treat the 16 unpreserved claim of error as error apparent on the face of the record. ORAP 5.45(1). 17 As noted, Southard itself announced a rule that concerned an expert 18 medical diagnosis of sexual abuse "in the absence of any physical evidence of abuse," 19 and it narrowly limited its holding to those circumstances. 347 Or at 142. The present 20 case does not fall within the court's narrow holding. O'Dell testified that her physical 21 findings concerning MH's hymen were "significant." Indeed, she listed those findings as 22 one of the four factors that contributed to her diagnosis of sexual abuse. Defendant 23 remonstrates that our decision in Lovern, in which we held that admission of a medical 24 diagnosis of sexual abuse qualified as "plain error" under Southard, supports his position. 4 1 2 As explained below, we conclude that Lovern is materially distinguishable. In Lovern, the defendant was convicted of multiple counts of first-degree 3 sexual abuse, based on allegations that he had touched his 12-year-old daughter's vagina, 4 breasts, and buttocks. Id. at 504. The victim was evaluated at a child-abuse assessment 5 center, and a medical examination was conducted. The examining physician testified that 6 the child's hymen was "non-specifically abnormal," explaining that there were notches in 7 a part of the hymen, and that it "wasn't perfectly normal but it wasn't specifically 8 abnormal that I know for sure there's been an injury there." Id. at 505. She described the 9 condition as "unusual" but "not so specific that it indicates that there was clearly an injury 10 there before." Id. Although the physician indicated that her diagnosis included 11 consideration of the physical examination, we noted: 12 13 14 15 16 "[T]here is no relationship between the 'unusual appearance' of the complainant's hymen and the type of sexual abuse charged in this case; accordingly, [the physician's] general reference to the complainant's anal/genital examination cannot be understood to indicate reliance on that abnormality as corroborating the abuse alleged here." 17 Id. at 506 n 2; see also id. at 511 n 6 ("Given the nature of the charged conduct, which 18 did not involve penetration of the complainant's vagina, the results of the physical 19 examination did not corroborate the alleged abuse.") 20 We concluded that there was "no material legal distinction between the 21 admissibility of the expert's diagnosis of sexual abuse in Southard and the admission of 22 the diagnosis in this case." Id. at 510-11. We noted that the expert herself had stated that 23 she could not "really tell one way or the other" from the physical examination whether an 5 1 2 3 4 5 6 injury had occurred. Id. at 511. We concluded: "In sum, as in Southard, the physician's diagnosis of sexual abuse in this case was based solely on the complainant's statements and history, without any physical evidence corroborative of the charged sexual abuse." Id. (emphasis added). Defendant asserts that the challenged evidence in this case is comparable to 7 the evidence at issue in Lovern, noting that both involved evidence of notches in the 8 victims' hymens. We disagree. Lovern does not stand for the proposition that notches in 9 a child's hymen can never be sufficiently corroborative of sexual abuse to cause a 10 diagnosis to fall outside the "narrow" rule of law announced in Southard. As noted, the 11 alleged abuse at issue in Lovern was not the sort that would lead to penetrative injuries. 12 The child in that case was 12 years old, and the expert certainly underplayed--if not 13 rejected outright--any significance of the appearance of the child's hymen in making the 14 diagnosis of sexual abuse. Here, by contrast, the child victim was younger, and the 15 expert, O'Dell, testified in great detail about the irregularities in the child's hymen and, 16 indeed, she provided photographic evidence showing the exact nature of the irregularities 17 that were significant to her diagnosis. She indicated that her findings were consistent 18 with a penetrative injury to the vagina; as noted, the charged abuse in this case involved 19 allegations of penetration of the victim's vagina. Moreover, and in marked contrast to the 20 evidence at issue in Lovern, in this case, O'Dell testified that "just looking at [the hymen] 21 by itself, yes, it would be significant to me." (Emphasis added.) Although O'Dell 22 acknowledged on cross-examination that the irregularities could have been "a variation of 6 1 normal" or caused by "something besides abuse," that caveat does not make this case 2 comparable to Southard or Lovern, which, as noted, involved no "physical evidence 3 corroborative of the charged sexual abuse." Id. at 511. 4 In sum, Southard left open the question of whether OEC 403 would require 5 exclusion of medical testimony of child sexual abuse where physical evidence supports 6 an expert's opinion. Lovern, likewise, left that question unanswered. We conclude that 7 the legal point at issue here is "reasonably in dispute," Brown, 310 Or at 355, and thus no 8 error is apparent on the face of the record. 9 Affirmed. 7
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