State v. Potts
242 Or. App. 352
Or. Ct. App.2011Background
- Potts was convicted of two counts of first-degree sexual abuse under ORS 163.427.
- The trial was bench, not jury.
- The State introduced a medical diagnosis that the victim had been sexually abused, despite no physical signs of abuse.
- Defense argued the diagnosis and basis should be excluded under Southard and Lupoli as improper comment on credibility.
- Court acknowledged the issue as plain error and reversed and remanded for correction of the evidentiary error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of the medical diagnosis was plain error | Potts maintained the diagnosis was improper and prejudicial | Potts argued the diagnosis was error under Southard and Lupoli | Yes; admission was plain error and required reversal |
Key Cases Cited
- State v. Southard, 347 Or. 127 (2009) (admissibility of expert medical testimony on abuse with no physical signs)
- State v. Lupoli, 348 Or. 346 (2010) (basis of medical diagnosis as improper comment on credibility)
- State v. Gonzales, 241 Or.App. 353 (2011) (treating similar evidence as plain error when decisions require correction)
- State v. Merrimon, 234 Or.App. 515 (2010) (evidentiary error analysis in similar context)
- State v. Lovern, 234 Or.App. 502 (2010) (review of expert testimony as error)
- State v. Davilia, 239 Or.App. 468 (2010) (court relied on evidence in verdict; not undermining the credibility assessment)
- State v. Marrington, 335 Or. 555 (2003) (discussion of sworn-credibility contest in determining admissibility)
- State v. Clay, 235 Or.App. 26 (2010) (recognition of plain-error correction for evidentiary issues)