State v. Davilia
239 Or. App. 468
Or. Ct. App.2010Background
- Victim, the defendant's three-year-old daughter, reported that father engaged in sexual contact; allegations investigated by police.
- CARES exam performed by Avila, a nurse practitioner, with no physical evidence of abuse.
- Avila diagnosed the victim as 'highly concerning for sexual abuse.'
- Detective and others interviewed the victim, mother, and staff; defendant was interviewed and charged with first-degree rape and first-degree sexual abuse.
- At trial, Avila's diagnosis and its basis were admitted over objection; no physical evidence supported abuse.
- Trial court convicted defendant; on appeal, the diagnosis was challenged as impermissible vouching and as comment on credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Avila's diagnosis was admissible scientific evidence. | State argues diagnosis aided fact-finder; Lupoli/Bainbridge permit such testimony when concrete evidence exists. | Davis contends diagnosis rested on credibility and lacked foundation; impermissibly vouched for the child and unsupported by physical evidence. | Diagnosis impermissibly vouched; error reversible. |
| Whether the diagnostic testimony was harmless error or required reversal. | Any error was harmless in a bench trial with no explicit reliance. | Evidence likely affected the court's credibility assessment and verdict. | Not harmless; requires reversal and remand for new trial. |
Key Cases Cited
- State v. Lupoli, 348 Or. 346 (2010) (diagnosis of child sexual abuse without physical evidence constitutes impermissible vouching)
- State v. Bainbridge, 241 P.3d 1186 (2010) (diagnosis based on credibility without physical evidence constitutes impermissible vouching)
- State v. Cafarelli, 456 P.2d 999 (1969) (trial-to-court harmless-error presumption discussed)
- State v. Marrington, 335 Or. 555 (2003) (harmless-error analysis for erroneously admitted evidence in court trial)