Following a jury trial, defendant was convicted of three counts of first-degree rape, ORS 163.375, and two counts of first-degree sexual abuse, ORS 163.427. He appeals from those convictions, raising numerous assignments of error. We reject all but one of those assignments without discussion, writing only to address his contention that the trial court erred in admitting, in the absence of supporting physical evidence, evidence of a medical expert’s diagnosis of sexual abuse.
See State v. Southard,
Although defendant concedes that he did not challenge admission of the diagnosis before the trial court, he asserts that admission of the evidence is error apparent on the face of the record and that we should exercise our discretion to correct the error. Assuming that admission of the evidence was plain error under the circumstances presented in this case,
see State v. Clay,
According to the state, defendant’s conduct at trial brought about any error in admitting the diagnosis. Specifically, the state points to the fact that it did not offer evidence of the diagnosis on direct examination of the expert and, in fact, the prosecutor had indicated that the state did not expect to have that expert discuss a diagnosis. However, on cross-examination, defendant asked the expert questions about whether children ever fabricate accounts of sexual abuse and also
“We don’t make a determination about whether or not a child is lying per se. The medical examiner will make a diagnosis and there’s three possible diagnoses: Abuse — and actually there’s levels of abuse. So child sexual abuse highly — highly probable. And then there’s levels of certainty. So concerning for abuse, highly concerning for abuse. We also will diagnose unable to determine, which means we really can’t tell. Either the child’s statements are not as — as clear or consistent for us to make a diagnosis. And when I say ‘us,’ I mean Liberty House[ 1 ] and the medical examiners. And so, we can’t determine if something has happened[.]”
Defendant later asked about whether generally “the most frequent scenario of fabrication is in a custody dispute[.]” (Defendant’s theory in this case was that the sexual abuse allegations were fabricated as the result of a custody dispute between the victim’s mother and defendant, who is the victim’s father.) As a result of those questions, the state contended, and the court agreed, that defendant had opened the door to the expert’s testimony “with regard to the [specific] conclusions drawn by Liberty House” and “the fact that a diagnosis was made[.]” On redirect examination, the state elicited testimony from the expert regarding the diagnosis of child sexual abuse.
The state notes that defendant “did not move to strike” any of the expert’s testimony on cross-examination, did not object to the trial court’s ruling that defendant had “opened the door” to admission of the specific conclusions that the expert had drawn about the victim in this case, and did not object when the state questioned the expert about the diagnosis.
1
2
Given all of the circumstances, the state contends that defendant was actively instrumental in bringing about any error and that we therefore should not exercise our discretion to correct it.
See Ailes,
Here, the state did not have the expert testify on direct examination as to a diagnosis of child sexual abuse and alerted defendant and the court in advance that it did not intend to ask the expert about a diagnosis. Instead, the evidence was offered only as the result of defendant’s trial tactics, which called into question the issue of whether Liberty House had been able to make a diagnosis of the victim. Where, as here, it was solely defendant’s conduct at trial that led to the error in question, we cannot conclude that the policies requiring preservation have been served, or that correction of the error would serve the ends of justice.
See id.
at 382 n 6. Accordingly, this case is not like those cases in which we have concluded it was appropriate to exercise our discretion to correct trial court errors in admitting diagnoses like that at issue here.
See Clay,
Affirmed.
Notes
Liberty House is a child abuse assessment center.
Interestingly, before the trial court, defendant offered as evidence an assessment report from Liberty House that includes the sexual abuse diagnosis. Although the trial court allowed defendant to use the reports “for the purpose of impeaching someone as to a specific statement” or to “refresh someone’s recollection,” it concluded that they were hearsay and “could not come in in totality on their own.” As one of his assignments of error on appeal, defendant contends that the trial court erred in excluding that report as hearsay.
Because we do not exercise our discretion to correct any error, we need not address whether the admission of the evidence was plain error in the circumstances presented here — particularly in light of the state’s argument that defendant “opened the door” to the testimony.
Cf. State v. Miranda,