State v. Volynets-Vasylchenko
246 Or. App. 632
Or. Ct. App.2011Background
- Defendant was convicted of multiple sexual offenses involving a child at a home daycare operated by Lyashenko.
- At trial, the state introduced treatment recommendations read aloud by CARES nurse supervisor Keltner, based on Riley's CARES evaluation notes.
- Riley conducted the physical evaluation; Bridenbaugh conducted the interview, with Riley observing; the physical findings were non-diagnostic.
- Defendant objected to Keltner's reading of Riley's recommendations as hearsay; the court admitted the testimony.
- The jury convicted on nine counts; on appeal, defendant challenged the admissibility of the treatment recommendations under hearsay, confrontation, and Southard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of treatment recommendations | Untrustworthy; not a proper business-records entry. | May be hearsay but also implicates Southard and Confrontation. | Plain error under Southard; reversible; remanded. |
| Confrontation Clause impact | Testimony infringes defendant's right to confront witnesses. | Factual burden similar to hearsay concerns; no reliable cross-examination. | Not reached separately; reversal based on Southard. |
| Southard applicability and harmlessness | Treatment recommendations may be treated as non-diagnostic and harmless. | Southard prohibits such testimony absent corroborating physical evidence. | Southard applies; error is plain and not harmless; reversed and remanded. |
Key Cases Cited
- State v. Lovern, 234 Or.App. 502 (2010) (plain-error review for uncorroborated sexual-abuse diagnosis)
- State v. Merrimon, 234 Or.App. 515 (2010) (diagnosis of sexual abuse without corroborating evidence is problematic)
- State v. Clay, 235 Or.App. 26 (2010) (multiple Southard-related errors analyzed)
- State v. Brown, 241 Or.App. 226 (2011) (no harmless-error relief when Southard applies)
- State v. Wedel, 245 Or.App. 12 (2011) (Southard error considerations in mixed fact patterns)
- State v. Potts, 242 Or.App. 352 (2011) (addressing preservation and harmless-error posture in Southard context)
- State v. Childs, 243 Or.App. 129 (2011) (Southard error deemed harmless in certain circumstances)
- Martinez-Sanchez, 244 Or.App. 87 (2011) (discretion to correct unpreserved Southard error)
- Pickett, 246 Or.App. 62 (2011) (refusal to address unpreserved Southard error where harmless)
- State v. Southard, 347 Or. 127 (2009) (restricts admission of expert sexual-abuse diagnoses absent corroboration)