State v. Hollywood

282 P.3d 944, 250 Or. App. 675, 2012 WL 2405193, 2012 Ore. App. LEXIS 794
CourtCourt of Appeals of Oregon
DecidedJune 27, 2012
DocketC082970CR; A143885
StatusPublished
Cited by11 cases

This text of 282 P.3d 944 (State v. Hollywood) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hollywood, 282 P.3d 944, 250 Or. App. 675, 2012 WL 2405193, 2012 Ore. App. LEXIS 794 (Or. Ct. App. 2012).

Opinion

BREWER, P. J.

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, 348 Or 346, 234 P3d 117 (2010), for the trial court to have admitted a diagnosing nurse-practitioner’s testimony, with respect to S. D., that “there is no lying going on about what she is telling us in this evaluation.”1 We agree, and we exercise our discretion to correct the error. We reverse and remand.

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 [677]*677Human Services (DHS) had become involved with the family when S. D. and her sister told school staff that their father had thrown them against the wall and that the girls had later admitted that they had fabricated that story. Defendant argued in support of the motion that, if the CARES investigator were allowed to give a diagnosis in this case, “which we don’t think she’d be allowed to do * * * we should be able to cross-examine her concerning the basis of that diagnosis.” The trial court ruled that, if the state adduced evidence of a sexual abuse diagnosis from a CARES professional, then defendant would be allowed to cross-examine the witness regarding the alleged previous recantation. The court reserved any ruling on whether defendant otherwise would be entitled to adduce evidence concerning the recantation.

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, 310 Or 347, 355, 800 P2d 259 (1990). If we conclude that an asserted error is plain, we must determine whether to exercise our discretion to address the error. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991). Under Oregon law, “a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton, 294 Or 427, 438, 657 [678]*678P2d 1215 (1983); see State v. Milbradt, 305 Or 621, 629-30, 756 P2d 620 (1988) (“[t]he assessment of credibility is for the trier of fact” and an “opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend” is tantamount to an opinion on credibility and inadmissible); see also State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (“[A] witness may not testify about the credibility of another witness.”). “Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible.” Lupoli, 348 Or at 357; see also State v. Ferguson, 247 Or App 747, 271 P3d 150 (2012) (witness’s statement that he would not have called the police if he had not believed complaining witness was an impermissible comment on credibility).

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, 305 Or at 630 (‘We suggest in the future that if counsel attempts to elicit [testimony commenting on the [679]*679credibility of a witness] the trial judge, sua sponte, should summarily cut off the inquiry before a jury is contaminated by it.”); State v. McQuisten, 97 Or App 517, 520, 776 P2d 1304 (1989) (“[T]he trial court had a duty, sua sponte, not to allow testimony which commented on a witness’ credibility.”). Finally, the state’s contrary argument notwithstanding, it is difficult to envision a more explicit comment on the credibility of a witness than Reilly’s challenged testimony in this case. Although Reilly’s testimony was aimed at bolstering her own diagnosis that, despite S. D.’s recantation of a different accusation, S. D. had been sexually abused, that testimony entirely hinged on Reilly’s view of S. D.’s credibility, and the jury could not have inferred otherwise.

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Cite This Page — Counsel Stack

Bluebook (online)
282 P.3d 944, 250 Or. App. 675, 2012 WL 2405193, 2012 Ore. App. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hollywood-orctapp-2012.