Defendant appeals a judgment convicting him of two counts of first-degree sodomy, ORS 163.405, one count of first-degree unlawful sexual penetration, ORS 163.411, and six counts of first-degree sexual abuse, ORS 163.427. He contends that, in the absence of supporting physical evidence, the trial court erred in admitting a physician’s diagnosis of “concerning” for sexual abuse.
See State v. Southard,
Defendant was a friend of the victim’s family and co-owned a piece of property with the victim’s father. The victim’s family lived in a house on the property, and defendant also lived on the property in a travel trailer. The victim, a five-year-old boy, told his babysitter that defendant had licked his “pee-pee” and that “he had to touch [defendant’s] pee-pee.” He repeated those statements the next day to his mother, who soon thereafter called the child abuse hotline, and eventually scheduled an appointment for the victim at CARES Northwest and also talked with a detective about the victim’s statements. At CARES, the victim was examined by Dr. Dan Leonhart and interviewed by a child abuse interviewer. The examination revealed no physical evidence of abuse. However, based on the victim’s spontaneous disclosure of abuse to his babysitter as well as his statements to his mother, Leonhart made a diagnosis of “concerning” for sexual abuse. Leonhart testified about that diagnosis during the trial with no objection from defendant.
In his testimony, Leonhart explained that “concerning” and “highly concerning” are in the “same ballpark” and that he often uses the terms “interchangeably.” He testified that his diagnostic terminology is to address whether he does not “think there’s anything to suggest [the abuse] happened” or whether he is “concerned that something happened, or [is] actually diagnosing that something [happened] — * * * child maltreatment, in this case it would be sexual abuse.” According to Leonhart, in this case, the most concerning thing was the victim’s “accidental” disclosure to the babysitter, and he noted that “the child isn’t intending to say something that’s really going to get this process going, they are just saying something in [the] context of interacting with someone[.]” There was also testimony presented at trial regarding the CARES treatment recommendations following the examination. Those recommendations included that the victim have no contact with defendant and receive individual counseling, as well as a support group for the victim’s parents, and that the victim’s parents not question the victim further about the abuse.
As noted, defendant argues on appeal that the admission of Leonhart’s diagnosis, in the absence of physical evidence of abuse, was plain error and that we should exercise our discretion to correct the error. The state responds that because the doctor’s diagnosis was “concerning” for sexual abuse rather than a straight sexual abuse diagnosis, there is no plain error under Southard. Furthermore, the state contends that there are “competing inferences about whether defendant wanted Leonhart’s ‘diagnosis’ admitted into evidence.” (Boldface omitted.) We disagree.
Since
Southard,
this court had repeatedly held that, in the absence of physical evidence of abuse, a trial court’s admission of a medical expert’s diagnosis of sexual abuse is plain error.
See, e.g., State v. Potts,
In
Merrimon,
the state attempted to distinguish the circumstances from those presented in
Southard,
pointing to the fact that the diagnosis was not a “definitive diagnosis” like that at issue in
Southard. Merrimon,
Nor do we find convincing the state’s assertion that there are competing inferences regarding whether defendant wanted the diagnosis admitted. In support of its contention, the state points to defendant’s discussion of the diagnosis
during opening and closing arguments, which emphasized that the doctor was only “concerned” about sexual abuse. According to the state, “it is inferable that defense counsel intended to allow Dr. Leonhart’s ‘diagnosis’ and testimony to create reasonable doubt as to whether [the victim] had been sexually abused.” We rejected a similar argument in
Lovern.
In that case, the state contended that “the defense may have made a tactical choice not to properly object to [the medical expert’s] diagnosis so that it could use that evidence to its own advantage!.]”
In sum, as we have concluded in “dozens of cases involving unpreserved claims of error under
Southard,” Volynets-Vasylchenko,
Reversed and remanded.
Notes
Pursuant to ORAP 5.45(1), “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may consider an error of law apparent on the record.”
Because we reverse and remand based on the admission of the diagnosis, we do not address defendant’s remaining contentions on appeal.
For the same reasons, we are unpersuaded by the state’s assertion that we should not exercise our discretion to correct the error in this case because “the record supports the inference that defendant made a conscious tactical decision not to object to Dr. Leonhart’s diagnosis.”