State v. Ramirez-Estrada
260 Or. App. 312
Or. Ct. App.2013Background
- Defendant convicted of second-degree unlawful sexual penetration and first-degree sexual abuse; appeals alleging trial error from nurse practitioner Daly's testimony describing the child as 'highly concerning for sexual abuse' without physical evidence.
- Daly testified during cross-examination; defense did not object to or move to strike the challenged testimony and argues the trial court committed plain error by not striking sua sponte.
- CARES Northwest nurse practitioner Daly evaluated the child; Daly found no physical evidence of abuse but stated the child’s disclosures made the case 'highly concerning for sexual abuse' based on statements.
- Daly’s evaluation relied largely on police and DHS reports, and Daly acknowledged she did not diagnose sexual abuse because of lack of additional interview detail.
- Defense highlighted lack of a formal interview and argued Daly’s conclusions were based on credibility, emphasizing that the CARES evaluation should be viewed with caution.
- Court concluded the testimony was inadmissible under Southard and Lupoli, but found no plain error because defense counsel plausibly chose not to object or strike, given trial strategy and questions raised about credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daly’s 'highly concerning for sexual abuse' testimony was properly admissible | State argues issue is in dispute; testimony could be based on credibility and not a diagnosis. | Defendant contends the testimony is inadmissible under Southard and Lupoli as a credibility-based diagnosis. | Not plain error; admissibility disputed but deemed not clearly beyond dispute due to strategic considerations. |
| Whether the trial court committed plain error by not striking the testimony sua sponte | State contends no obligation to strike absent defense request. | Defendant argues the court should have sua sponte struck or given curative instruction. | Not plain error; defense plausibly chose not to object for strategic reasons. |
| Whether defense strategy foreclosed a sua sponte strike | State emphasizes after Southard/Lupoli the court had no obligation to intervene absent forceful prompting. | Defendant asserts no plausible strategic reason; cannot assume strategic choice. | Plausible strategy found; not plain error to fail to strike. |
Key Cases Cited
- State v. Southard, 347 Or 127 (2009) (admissibility of sexual abuse diagnoses without physical evidence; balancing probative value and prejudice)
- State v. Lupoli, 348 Or 346 (2010) (prohibition on credibility-based opinions about other witnesses; lack of physical evidence renders diagnoses inadmissible)
- Milbradt, 305 Or 621 (1988) (sua sponte obligation to strike impermissible testimony to prevent jury contamination)
- B. A. v. Webb, 253 Or App 1 (2012) (trial courts may need to strike credibility-related testimony sua sponte)
- State v. Lowell, 249 Or App 364 (2012) (pleading and preservation considerations for trial court's response to improper testimony)
- State v. Hollywood, 250 Or App 675 (2012) (plain error when trial court failed to strike testimony that endorsed witness credibility)
- Higgins, 258 Or App 177 (2013) (sua sponte error analysis for non-objected vouching testimony)