Following a trial to the court, defendant was convicted of five counts of first-degree sodomy, ORS 163.405; 10 counts of first-degree sexual abuse, ORS 163.427; nine counts of first-degree encouraging child sexual abuse, ORS 163.684; nine counts of second-degree encouraging child sexual abuse, ORS 163.686; and two counts of using a child in a display of sexually explicit conduct, ORS 163.670. He appeals those convictions, contending that the trial court erred in admitting, in the absence of any physical signs of abuse, a medical expert’s diagnosis that the victim had been sexually abused.
See State v. Southard,
Although defendant acknowledges that, before the trial court, he did not challenge the admission of the diagnosis, he contends that the admission of that evidence was plain error under
Southard.
1
See State v. Clay,
The state nonetheless asserts that “the overwhelming evidence of defendant’s guilt, including his own admissions, make it highly unlikely that [the] diagnosis” affected the verdict. We agree that the admission of the diagnosis did not likely affect the court’s verdict in this case and, accordingly, we decline to affirmatively exercise our discretion to correct the error.
See Ailes v. Portland Meadows, Inc.,
As was the case in
Childs,
this case did not amount to merely a “swearing match” between the victim, who was 18 years old at the time of trial, and defendant.
In addition to defendant’s own statements, photographic evidence also substantiated the abuse. Specifically, several sexually explicit photographs of the victim were admitted at trial and corroborated her account. The court noted that defendant’s own statements supported the verdict and described the evidence in the case as “overwhelming.” Given the circumstances presented here, we are convinced that the admission of the diagnosis did not likely affect the court’s verdict.
In light of that determination, we conclude that it would not be appropriate for us to affirmatively exercise our discretion to correct the error in admitting the diagnosis of sexual abuse.
Affirmed.
Notes
Under 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.”