Following a jury trial, defendant was convicted of one count of first-degree rape and two counts of first-degree sexual abuse of a child, S. D. On appeal, defendant contends that it was plain error, under State v. Lupoli,
We set out only those facts that are necessary to address the parties’ arguments. Defendant was a friend of S. D.’s family. Over a period of time when she was nine years old, S. D. disclosed to various relatives that defendant had sexually abused her. S. D.’s mother took her to a hospital emergency room for a medical examination, which led to her further evaluation by several health care professionals, including representatives of CARES, a child abuse assessment center. None of the examinations disclosed any physical evidence of sexual abuse. Among the CARES evaluators was Reilly, a pediatric nurse-practitioner. Reilly did not perform a medical examination, but she did interview S. D., who told Reilly that “[defendant] was touching me in the wrong places.” Reilly learned that S. D. was taking medication for ADHD; was on an individual education plan in school; was delayed in reading, writing, and math; and was in speech therapy. Reilly explained that S. D. had difficulty with timing in sequence in recounting the abuse but that “doesn’t mean she’s lying about something, she’s just not capable of framing it in that context.” Reilly then testified to her diagnosis that S. D. had been sexually abused.
At this point, we briefly digress to set the stage for the testimony that followed. Before trial, defendant had filed a motion in limine to permit him to impeach S. D. and a CARES investigator with evidence that the Department of
Pursuant to the trial court’s pretrial ruling on defendant’s motion in limine, after eliciting the sexual abuse diagnosis, the prosecutor asked Reilly “how” or “why,” in light of the alleged recantation, she nevertheless had made such a diagnosis in this case. Reilly explained that children often recant allegations of abuse for various reasons. She concluded:
“But, in this case, what we know about [S.D.], she does not have a problem with lying; in fact, she’s not taking back anything that she said to us, to [another examining physician], or to her mother about abuse by [defendant]. She’s very consistent in those core details.
“So, there is no lying going on about what she’s telling us in this evaluation.”
Defendant’s counsel did not object to the foregoing testimony, and the trial court did not strike it.
An error is plain if it is a legal error that is obvious or not reasonably in dispute and the court need not go outside the record or select among competing inferences to discern it. State v. Brown,
The state argues that the trial court did not plainly err in failing sua sponte to strike Reilly’s quoted testimony. First, the state argues that the prosecutor had not invited Reilly’s challenged testimony in response to her general “how” or “why” question and that the trial court had no duty sua sponte to strike such unsolicited testimony after it was given. Second, the state argues that the challenged testimony was “not so much a comment on S. D.’s credibility as it was an explanation as to why S. D.’s prior recantation did not contradict Reilly’s diagnosis.” It follows, the state reasons, that the trial court did not err in failing to strike it in the absence of an objection or motion to strike.
We disagree with those arguments. First, the prosecutor’s open-ended question about why Reilly’s sexual abuse diagnosis was not affected by S. D.’s recantation of physical abuse by her father risked — indeed it logically countenanced — precisely the type of explanation that Reilly gave in response. In the end, Reilly’s diagnosis hinged on her perception of S. D.’s credibility, and it was foreseeable that, in response to the prosecutor’s question, she would return to that foundation for her opinion. Nor is the plainness of the error affected by the fact that the challenged testimony was not explicitly elicited by the prosecutor’s question. See Milbradt,
The state next asserts that the admission of that testimony does not qualify for plain error review because the court would have to choose between competing inferences— “one of which is that defendant made a conscious decision not to object” to the testimony — to decide the issue. See State v. Gornick,
The question remains whether we should exercise our discretion to correct it. In determining whether to exercise our discretion to correct such an error, we consider, among other things,
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way[.]”
Ailes,
Reversed and remanded.
Notes
In additional assignments of error, defendant challenges as plain error the trial court’s admission of two expert medical diagnoses of child sexual abuse and related testimony, as well as the court’s exclusion of certain impeachment evidence. In view of our disposition of defendant’s first assignment of error, we decline to address his remaining challenges.