State v. Codon
247 Or. App. 756
Or. Ct. App.2012Background
- Defendant Ortega appeals a conviction for two counts of first‑degree rape; he challenges trial evidence and jury instructions.
- The State introduced a medical expert’s diagnosis that the victim had been sexually abused, despite a lack of physical findings.
- The victim testified to multiple rapes in Oregon; Ortega admitted one instance and claimed it was to avoid further probing.
- Ortega was convicted; trial court later faced preservation issues and argued plain error under Southard for the diagnosis.
- Court reverses on the diagnosis due to plain error, remanding for new proceedings; other assignments of error are not addressed further.
- The court notes prior decisions rejecting nonunanimous verdict challenges, which it treats as settled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of sexual abuse diagnosis without physical findings | State contends no plain error or discretion not to correct. | Ortega argues plain error under Southard. | Plain error; reversal and remand. |
| Admission of social worker red flags testimony | State relies on standard evidentiary rules and trial strategy. | Ortega asserts error in admitting the social worker's red flags testimony. | Not resolved on appeal. |
| Nonunanimous jury instruction and verdicts | State maintains previous rulings uphold nonunanimous verdicts. | Ortega argues trial court erred in nonunanimous instructions/verdicts. | Court rejects the argument based on prior Oregon authorities. |
Key Cases Cited
- State v. Feller, 247 Or App 416 (2011) (disallowing diagnosis of sexual abuse without physical findings)
- State v. Potts, 242 Or App 352 (2011) (plain error analysis in absence of physical corroboration)
- State v. Clay, 235 Or App 26 (2010) (plain error considerations in expert testimony)
- State v. Lovern, 234 Or App 502 (2010) (inference must be plausible in plain error context)
- State v. Merrimon, 234 Or App 515 (2010) (comparison of harmless and reversible error)
- State v. Volynets-Vasylchenko, 246 Or App 632 (2011) (unpreserved error analysis in Southard context)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (review of discretionary corrections for errors)
- State v. Bainbridge, 238 Or App 56 (2010) (rejection of nonunanimous verdict challenges)
- State v. Cobb, 224 Or App 594 (2008) (nonunanimous verdicts analysis reaffirmed)