State v. Feller
247 Or. App. 416
Or. Ct. App.2011Background
- Feller was convicted of two counts of first-degree sodomy, one count of first-degree unlawful sexual penetration, and six counts of first-degree sexual abuse.
- Defendant argued the trial court erred by admitting a medical diagnosis of “concerning” for sexual abuse without physical evidence.
- The diagnosis was given by Dr. Dan Leonhart who treated the victim at CARES Northwest; no physical findings of abuse were found.
- Leonhart testified the terms “concerning” and “highly concerning” are interchangeable and used to indicate potential abuse without a definitive diagnosis.
- The trial court admitted the diagnosis; the Court of Appeals held admission to be plain error and reversed/remanded under Southard and related cases.
- Appellate review relied on prior decisions (Lovern, Merrimon, Arriaza, Volynets-Vasylchenko) that admit-ting such diagnoses without physical evidence is plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of a medical diagnosis without physical evidence was plain error | State argues diagnosis was not definitive; no plain error | Feller argues plain error under Southard | Yes, plain error; reverse and remand |
Key Cases Cited
- State v. Southard, 347 Or. 127 (2009) (admission of sexual-abuse diagnosis without physical evidence constitutes plain error)
- State v. Potts, 242 Or.App. 352 (2011) (admission of medical diagnosis of sexual abuse without physical evidence is plain error)
- State v. Clay, 235 Or.App. 26 (2010) (same rule; plain error in absence of physical evidence)
- State v. Lovern, 234 Or.App. 502 (2010) (plain error to admit diagnosis of child sexual abuse without physical evidence)
- State v. Merrimon, 234 Or.App. 515 (2010) (diagnosis of ‘highly concerning’ lacks probative value without physical evidence)
- State v. Arriaza, 236 Or.App. 456 (2010) (‘highly concerning’ diagnosis carries implicit credibility Conclusion)