State v. Gonzales
241 Or. App. 353
Or. Ct. App.2011Background
- Gonzales was convicted of multiple sex offenses and related charges including first-degree and second-degree sexual abuse, third-degree sexual abuse, attempted third-degree sexual abuse, first- and second-degree unlawful sexual penetration, and other counts involving furnishing alcohol and delivering a controlled substance to a minor.
- On appeal, Gonzales challenged several convictions as plain error, asserting issues with a jury instruction and with admission of medical diagnoses of child sexual abuse.
- A key issue was whether the first-degree unlawful sexual penetration count was proved, given CM testified touching occurred on the outside of the vagina (labia) and not necessarily inside the vagina.
- The state conceded the medical diagnoses were challenged by Lupoli and Southard, and the court found admission of those diagnoses to be plain error requiring relief.
- The court reversed and remanded the convictions for the counts involving first-degree sexual abuse, second-degree sexual abuse, third-degree sexual abuse, attempted third-degree sexual abuse, first-degree unlawful sexual penetration, and second-degree unlawful sexual penetration; other convictions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sua sponte acquittal on first-degree sexual penetration | Gonzales argues record requires acquittal | State contends no face-of-record error | No error apparent; no sua sponte acquittal required |
| Admissibility of medical diagnoses under Lupoli/Southard | Diagnoses were admissible as scientific evidence | Diagnoses based on credibility impermissibly bolstered the victims | Plain error; admission reversed and remanded for new trial on counts |
| Effect of the above errors on convictions | Error taints multiple counts | Need for targeted relief | Convictions for six listed counts reversed and remanded; others affirmed |
Key Cases Cited
- Southard v. State, 347 Or. 127 (Or. 2009) (admissibility of medical diagnoses in absence of physical evidence; unfair prejudice under OEC 403)
- Lupoli v. State, 348 Or. 346 (Or. 2010) (vouching concerns in expert testimony; credibility-based diagnoses)