Defendant appeals his judgment of conviction for assault in the second degree, assault in the third degree, and two counts of criminal mistreatment. The ultimate issue on appeal is whether, in the circumstances of this case, an expert witness’s diagnosis of physical child abuse at the hands of a particular actor — defendant—is admissible scientific evidence. However, on the record before us, we need not answer that question because, even if the answer is “no,” the admission of the challenged evidence was harmless. Accordingly, we affirm.
The charges concerned abuse of C, the 18-month-old child of defendant’s girlfriend, T. Defendant was residing with T and C. Two other people, J and M, also lived in the home or frequently spent time there. On the night of the charged incident, T became ill and was taken to the hospital by J and M. They left C in the care of defendant. While T was at the hospital, defendant called her, explaining that he had “tripped with [C] and he fell.” J went back to the residence to check on C and found that he had a golf-ball-sized lump on his head that had been covered with make-up. The child had a vacant expression, was unresponsive to communication, and would not eat.
J took C to the hospital. The emergency room physician found that C had an injury to the forehead and swelling on the back of the head and around the ear. C also had a contusion on his chin, bruises on his chest and back, and bruises on his right leg. The physician ordered a CAT scan, which showed that C had suffered a fractured skull. Suspecting
As a result of that contact, C was transferred to a different hospital where a CARES unit was located. A CARES pediatrician, Dr. Skinner, evaluated and treated C. In her evaluation, Skinner reviewed C’s emergency room CAT scan results, conducted a physical examination, and gathered statements from C’s family and defendant. Based on her review of the CAT scan, Skinner concluded that C had suffered a “parietal occipital” fracture, meaning that the fracture “crossed up and over the midline” and “over the top of the head and * * * down toward the base.” In her opinion, it would have taken “significant force” to cause that type of fracture.
A police officer contacted defendant, who, over a period of multiple interviews, gave the officer two additional and different explanations of how C was injured. First, defendant said that he blacked out while checking on C, and the next thing he remembered was that he was on the floor and C was bleeding. Defendant speculated that perhaps C had fallen off the dresser or that defendant had tripped on toys while holding C. In a later interview, defendant stated that, because he was angry with T, defendant threw C four feet into a dresser and left the room. He returned after a minute to find C on the floor and nonresponsive.
In a written report that she prepared about two weeks after first seeing C, Skinner opined:
“[Defendant] clearly caused [C’s] injuries which caused his hospitalization on May 13. [Defendant] provided at least three versions of what happened to [C] on May 12/May 13. His latest story is that he threw [C] into a dresser; [C] hit the dresser and slid down. Though this may have happened, I do not believe this is the whole story. When I saw [C] on Friday evening, he had approximately 10 areas of injury on his head and neck alone — in addition to a skull fracture. If [C] had only one impact injury (the dresser— then the floor) I would expect one or two areas of his head to be injured; not 10.1 believe there were more injuries which took place that night.
* * * *
“[C] was physically abused by [defendant]. This medical diagnosis is based on [C’s] physical exam on Friday May 13, accompanied by review of statements made by [defendant].”
Defendant moved for a hearing under OEC 104 to determine whether Skinner’s medical diagnosis was admissible scientific evidence under
State v. O’Key,
Defendant took the stand in his own defense at trial and admitted that he had lied in several versions of his account of the cause of C’s injuries. However, he testified that he was not guilty of any of the charged offenses. Defendant disavowed his pretrial statement that he had thrown C against the dresser as a lie that he told at T’s request to protect her from legal trouble because she had fallen ill while under the influence of methamphetamine. In closing argument, defendant’s attorney summarized defendant’s trial testimony about how C’s injuries occurred as follows:
“[Defendant] really didn’t know much until the next morning when he hears [C] and he’s trying to get moving and get out there to find out what’s going on with [C] and is listening at the door and then goes in and [C’s] laying down and then he’s gesturing wanting to be held.
“And [defendant] takes him and picks him up in his arms and, as he turns, he falls and he can’t describe exactly how his feet got tangled up, whether it was a box or the toys or the shoes and the way that they’d been put on as he’d come out of the bedroom, but he went down. He went down hard and [C] was below him.”
In the state’s closing argument, the prosecutor emphasized the quoted portion of Skinner’s written report, among other things, quoting her opinion that “[defendant] clearly
On appeal, defendant assigns error to the trial court’s admission of the portions of Skinner’s report and testimony in which she opined that defendant physically abused C. Defendant reiterates his argument that Skinner’s medical diagnosis, identifying defendant as the perpetrator of abuse against C, was not admissible scientific evidence.
Under
O’Key
and
Brown,
“scientific evidence” is admissible if it is relevant under OEC 401, helpful to the trier of fact under OEC 702, and not subject to exclusion under OEC 403. In
State v. Southard,
In this case, defendant acknowledges that a medical diagnosis of nonaccidental physical abuse that is buttressed by an adequate foundation would constitute admissible scientific evidence. We agree. A medical diagnosis of physical child abuse is “scientific evidence.”
See State v. Marrington,
In
Southard,
the ultimately dispositive question was “whether a diagnosis of‘sexual
abuse’
— i.e., a statement from an expert that, in the expert’s opinion, the child was sexually abused — is admissible in the absence of any physical evidence of abuse.”
The defendant was subsequently charged with two counts of sodomy involving the child. Id. Before trial, the defendant moved in limine to preclude the state from presenting evidence of the physician’s diagnosis of sexual abuse. Id. In so moving, the defendant contended that the diagnosis was “scientific evidence” under OEC 702 but did not satisfy the foundational requirements for such evidence. The trial court denied that motion, and, at trial, the physician did, in fact, testify that she had diagnosed the child as having been sexually abused. Id. at 132. The jury convicted the defendant and, on appeal, we affirmed the judgment. Id. at 129.
On review, the Supreme Court reversed. In doing so, however, the court began by rejecting the defendant’s predominant contention that, “without physical evidence of abuse, a diagnosis of child sexual abuse is too unreliable and not sufficiently verifiable to be considered scientifically valid.”
Id.
at 132. In rejecting that argument, the court first reiterated the well-established criteria for the admissibility of scientific evidence. Applying those principles, the court then examined the specific methodologies used by the physician and the assessment center in making the diagnosis of sexual
The court further determined that the diagnosis of child sexual abuse was relevant, reasoning, “[w]hether sexual abuse has occurred is a material fact in proving a charge of sodomy, and the doctor’s diagnosis that the boy had been sexually abused increased the probability of that fact’s occurrence.” Id. at 139. However, the court ultimately concluded that the expert’s diagnosis of sexual abuse was nonetheless inadmissible because, under OEC 403, the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. Id. at 141. As the court observed, because the doctor’s diagnosis “did not tell the jury anything that it was not equally capable of determining” on its own its probative value was “slight.” Id. at 140. Conversely, the risk of prejudice was great:
“The fact that the diagnosis came from a credentialed expert, surrounded with the hallmarks of the scientific method, created a substantial risk that the jury ‘may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence.’ ”
Id.
at 140-41
(quoting Brown,
In light of Southard, we agree with the state that Skinner’s medical diagnosis that C was a victim of physical child abuse was scientifically valid. As a medically trained pediatrician specializing in the field of child abuse treatment for 14 years, Skinner was qualified. In addition, she testified that the diagnosis and treatment of child abuse was generally accepted in the medical field, explaining that there had been “an explosion” in the area of child abuse treatment “since the seventies” involving an emergence of literature, studies, and training. She explained that professional literature existed on the clinical study of child abuse, including at least one journal exclusively devoted to the subject. Skinner also testified how her diagnostic approach involved both subjective and objective analysis. She considers objective factors such as physical examination, laboratory and radiologic test results, and social history to rule in and out potential causes for a subject’s injuries. According to Skinner, that diagnostic approach was amenable to peer review, because another professional could use the same techniques to arrive at the same conclusion. In short, much like the diagnosis of sexual abuse that the court held was scientifically valid in Southard, the diagnosis of physical child abuse in this case — involving a comparable scientific methodology that included the gathering of social history — was scientifically valid.
However, as defendant observes, Skinner and the state both claimed more for Skinner’s diagnosis, which included an opinion that defendant was the perpetrator of the abuse. Some courts have held that an expert’s identification of the defendant as the perpetrator of abuse is not valid scientific evidence.
See, e.g., State v. Alberico,
We need not determine whether the challenged evidence was admissible in this case, because any error in admitting it was harmless. Under Article VII (Amended), section 3, of the Oregon Constitution an appellate court must “affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the verdict.”
State v. Gibson,
“must focus 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. That inquiry requires us to examine the nature of the error that occurred below and the context of that error. If the particular issue to which the error pertains has no relationship to the jury’s determination of its verdict, then there is little likelihood that the error affected the verdict.”
Id.
(internal quotation marks and citations omitted). “The foregoing statement of the law does not purport to establish a separate or different inquiry when the evidence in question is, as it is in this case, scientific evidence. The test is equally applicable whether the evidence in question is scientific or ordinary.”
State v. Willis,
The state asserts that any error in admitting the challenged evidence in this case was harmless because
“[h]ere the prosecution’s case was strong and, in the context of the state’s case, the child-abuse diagnosis was relatively unimportant. The state’s theory of defendant’s culpability primarily focused on defendant’s wildly differing accounts of how the victim was injured. * * * The prosecutor’s discussion of Dr. Skinner’s child-abuse diagnosis in his closing argument was limited to one and a half pages in the transcript. In sum, the child-abuse diagnosis was of minor significance to the state’s theory of the case.”
The state also asserts that any error was harmless because the challenged evidence was cumulative of other persuasive evidence that defendant caused C’s injuries. The state points to defendant’s admission that he threw the child against a dresser, and his multiple, conflicting, explanations of how C was injured while in his care.
We agree that the error, if any, was harmless. In reaching that conclusion, we consider the asserted error in context. Defendant took the stand in his own defense at trial and admitted that he had lied in several versions of his account of the cause of C’s injuries. Defendant disavowed his pretrial statement that he had thrown C against the dresser as a he that he told at T’s request to protect her from legal trouble because she had fallen ill while under the influence of methamphetamine. In closing argument, defendant’s attorney summarized defendant’s trial testimony about how C’s injuries occurred as follows:
“[Defendant] really didn’t know much until the next morning when he hears [C] and he’s trying to get moving and get out there to find out what’s going on with [C] and islistening at the door and then goes in and [C’s] laying down and then he’s gesturing wanting to be held.
“And [defendant] takes him and picks him up in his arms and, as he turns, he falls and he can’t describe exactly how his feet got tangled up, whether it was a box or the toys or the shoes and the way that they’d been put on as he’d come out of the bedroom, but he went down. He went down hard and [C] was below him.”
Although defendant’s counsel also argued that J was not a credible witness and that J might have injured C on another occasion, defendant never posited that anyone other than defendant himself caused the physical injuries that C suffered on or about May 13, 2005, that is, the physical injuries at issue in the indictment in this case.
In determining the possible influence of the error on the jury’s verdict, we consider whether the erroneously admitted evidence went to “the heart of * * * the case.”
State v. Davis,
“In light of the other evidence in this case, a chemical analysis was necessary to establish the identity of the substance in the vial in a persuasive way, which presumably is why the state offered the laboratory report. Science either can turn suspicion into probability, or it can establish that the substance was not the specific controlled substance alleged in the indictment (or, indeed, was not a controlled substance of any kind). Any juror would wish to have the scientific answer, and could be expected to give it weight. Far from being able to say, on this record, that there was ‘little likelihood’ that any error in admitting the laboratory report ‘affected the verdict,’ we conclude that there was a high likelihood that the improperly received report did affect the verdict. The error was not harmless.”
Willis,
Here, the state’s evidence on the central issue of whether C was physically abused was very strong, defendant’s theory of the case on that issue was inherently problematic, and Skinner’s opinion refuted that theory in a forceful way. However, the portion of her report and testimony that defendant challenges on appeal did not go to the heart of any disputed issue in the case. We conclude that there is little likelihood that its admission affected the jury’s verdict, and the error — if any — in admitting it, was harmless.
Affirmed.