Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree unlawful sexual penetration, ORS 163.408. On appeal, defendant contends that, under
State v. Southard,
The material circumstances for purposes of our review are not controverted. Defendant was charged with two counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree unlawful sexual penetration, ORS 163.408. As pertinent here, ORS 163.427(1) provides that a person commits first-degree sexual abuse if, among other things, the person “[s]ubjects another person to sexual contact.” ORS 163.408 provides, in pertinent part, that a person commits second-degree unlawful sexual penetration “if the person penetrates the vagina * * * of another with any object other than the penis or mouth of the actor * * *.”
At trial, defendant’s position was that he was not guilty of the charged conduct, but that, if he was, he was guilty but insane under ORS 161.295. Defendant did not admit that the alleged conduct occurred; rather, he testified that he did not remember engaging in that conduct. Alternatively, defendant took the position that he suffered from dissociative identity disorder and that, if the alleged conduct occurred, his other personality, “Josh,” was responsible for it. Specifically, the following exchange took place at trial:
“[Defense Counsel:] * * * So you don’t remember whether you did this to [the victim] or not?
*229 “[DEFENDANT:] No.
“[Defense Counsel:] Correct? Okay.
“[DEFENDANT:] I don’t remember.
* * * *
“[Defense Counsel:] * * * And if it happened, did you do it?
“[DEFENDANT:] No.
“[Defense Counsel:] Who did it?
“[DEFENDANT:] Josh.”
The state offered the testimony of several witnesses to prove that defendant engaged in the conduct constituting sexual abuse and unlawful sexual penetration. In addition to the testimony of the victim and her mother, the state introduced the testimony of Dr. Janey Purvis, a physician with specialized training in child abuse and neglect. Purvis testified, over defendant’s objection, to her diagnosis that “it was highly likely that [the victim] had experienced sexual abuse.”
The jury convicted defendant of all three charges. He appeals.
As previously indicated, on appeal, the state does not dispute that, under
Southard,
the trial court erred in admitting Purvis’s diagnosis of sexual abuse. Instead, relying primarily on our decision in
State v. Sanchez-Alfonso,
“Given that defendant did not seriously contest that the abuse occurred (he asserted only that he did not remember whether he had abused [the victim] and that, if the abuse in fact occurred, his alternate personality was responsible), there is little likelihood Dr. Purvis’s sexual-abuse diagnosis affected the verdict. At bottom, this case turned on whether the jury would accept defendant’s guilty-but-insane defense. Whether the abuse occurred was, for all practical purposes, not in dispute. At trial, [the victim] gave detailed testimony about the abuse and her mother testified that defendant — purportedly speaking to her through his other personality, Josh — had admitted to it. Defendant did not seriously challenge the credibility of their testimony. *230 Against that backdrop, admission of the sexual-abuse diagnosis was harmless error. That evidence was not relevant to, and thus could not have affected, the jury’s assessment of defendant’s guilty-but-insane defense. The challenged evidence went only to whether defendant had committed the alleged criminal acts (effectively undisputed), not to his mental state- — the question presented by his guilty-but-insane defense.”
For the reasons explained below, we disagree with the state that the error was harmless.
The Supreme Court’s decision in Davis frames the proper inquiry. In Davis, the Supreme Court determined that, under Article VII (Amended), section 3, of the Oregon Constitution, 1
“Oregon’s constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling.”
“[t]he Supreme Court further explained that a variety of considerations may properly inform that ‘single inquiry,’ including ‘the nature of the error that occurred below,’ id., and the ‘context of the legal error.’ Id. at 33. The court noted, for example, that the erroneous exclusion or admission of evidence would be harmless ‘if the particular issue to which the error pertains has no relationship to the jury’s determination of its verdict,’ id. at 32, or if the jury ‘would have regarded the * * * evidence as duplicative or unhelpful to its deliberations.’ Id. at 33. Ultimately, the Supreme Court in Davis concluded that the erroneous exclusion was not harmless, because it could not ‘say that the excluded statements were merely cumulative of admitted evidence — and, indeed, ‘were qualitatively different than the *231 evidence that the jury heard’ — and because ‘the excluded evidence goes directly to the heart of defendant’s factual theory of the case.’ Id. at 34.”
State v. Perkins,
Here, the state seeks to cast Purvis’s diagnosis as pertaining to an “effectively undisputed”
issue
— viz., whether defendant had committed the alleged criminal acts. As previously indicated — and as is inherent in the state’s own characterization — that issue was not undisputed. Defendant did not admit that he engaged in the alleged criminal conduct. Although the state is correct that defendant raised a guilty but insane defense in this case, the state was not relieved of its burden to prove the elements of the crime beyond a reasonable doubt. For that reason, Purvis’s diagnosis of sexual abuse went “directly to the heart of [the state’s] factual theory of the case.”
Davis,
Our decision in
Sanchez-Alfonso
is not to the contrary. In that case, we held that, even if “an expert witness’s diagnosis of physical child abuse at the hands of a particular actor — [the] defendant — is [not] admissible scientific evidence,” the trial court’s “admission of the challenged evidence was harmless.”
“[a]t the heart of this case was the parties’ disagreement about [the] defendant’s mental state when he injured [the victim] on the date in question. In contrast, the challenged evidence went to a part of the case that was not meaningfully at issue, namely, [the] defendant’s role as the causal agent of those injuries.”
Id. at 170.
In Sanchez-Alfonso, unlike in this case, the physical evidence of abuse — including evidence that the victim suffered a skull fracture — was patent, and the defendant did not dispute that physical injuries occurred or that he was the causal agent. Id. at 162, 170. By contrast, in this case, there were no diagnostic physical findings of abuse. Rather, as *232 noted, defendant’s position was that, if the alleged conduct occurred, his other personality, “Josh,” was responsible for it.
Further, to the extent that the state contends that the diagnosis was merely cumulative of the testimony of lay witnesses that defendant had engaged in the unlawful conduct, we disagree. The physician’s medical diagnosis was “qualitatively different than the [other] evidence that the jury heard.”
Davis,
In sum, we cannot say that there was “little likelihood” that the erroneously admitted diagnosis affected the verdict given the scientific nature of the diagnosis and its relationship to a disputed element of the charged crimes— that is, whether defendant actually engaged in the unlawful conduct. Accordingly, the admission of the diagnosis was not harmless and we must reverse defendant’s convictions. 2
Reversed and remanded.
Notes
Article VII (Amended), section 3, provides, in part:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial[.]”
Our disposition in that regard obviates the need to address defendant’s second assignment of error concerning the trial court’s admission of the physician’s nondiagnostic physical findings.