State v. Lopez-Cruz

299 P.3d 569, 256 Or. App. 32, 2013 WL 1334197, 2013 Ore. App. LEXIS 365
CourtCourt of Appeals of Oregon
DecidedApril 3, 2013
Docket08C51661; A144721
StatusPublished
Cited by7 cases

This text of 299 P.3d 569 (State v. Lopez-Cruz) 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. Lopez-Cruz, 299 P.3d 569, 256 Or. App. 32, 2013 WL 1334197, 2013 Ore. App. LEXIS 365 (Or. Ct. App. 2013).

Opinion

WOLLHEIM, J.

Defendant, who was convicted after a bench trial of one count of first-degree sexual abuse, appeals, asserting that the trial court erred in admitting an emergency room doctor’s diagnosis that the complaining witness had suffered “abusive contact.” He further asserts that his mandatory minimum sentence of 75 months pursuant to ORS 137.700 is unconstitutional as applied. We reverse defendant’s conviction, and therefore do not address the sentencing issue.

We state the necessary facts, including all reasonable inferences, in the light most favorable to the state. State v. Cervantes, 319 Or 121, 873 P2d 316 (1994). In December 2008, the 10-year-old complainant was spending the night at her friend H’s house when defendant, the boyfriend of H’s mother, came into the room where the two girls were sleeping on the floor, knelt down beside the complainant, and started rubbing her thigh over her clothes, eventually moving up to her pubic area. The complainant was awake but pretended to be asleep. Defendant got on top of the complainant, placed his pelvis between her legs, and made a motion simulating sexual intercourse. The complainant could feel defendant’s penis against her. Defendant tried unsuccessfully to remove the complainant’s shorts. The complainant rolled over onto her stomach, and defendant left the room.

The complainant recounted the incident that night to her mother, who took her to the emergency room. Medical personnel could find no physical evidence of abuse. However, based on the complainant’s reports, the emergency room doctor, Van Eaton, diagnosed “abusive contact of an adult with a patient, no penetration or genital contact.”

In a police interview, defendant denied any sexual contact with the complainant. He said that he went into the room where the girls were sleeping to turn off the television and the light and then left.

Defendant was charged with several sex offenses, and his case came to trial on December 21, 2009. Among other witnesses, the defense called Van Eaton, who described his examination of the complainant in the emergency room. He testified that the examination lasted “no more than ten [34]*34to 15 minutes,” that the victim was not crying during the examination, and did not appear traumatized. He testified that he did not find any physical signs of trauma, and that a fluorescent black light did not reveal any semen on the complainant or her shorts. On the state’s cross-examination, the prosecutor asked Van Eaton whether he had made a diagnosis, and he testified without objection that he had diagnosed “abusive contact of an adult with a patient, no penetration or genital contact.” The prosecutor then asked, “So you saw her — [you did the] black light [to check for semen], talkfed] to her, talkfed] to her mom, reviewed the situation and that’s the diagnosis you came up with?” Van Eaton responded, “Yeah. To be clear, it was a diagnosis based on history, not on any physical findings.”

The theory of the defense was that the victim made up the allegations, either to gain her mother’s attention or because she felt animosity toward her friend, H, and H’s family. Defense counsel offered many reasons why the evidence gave rise to reasonable doubt: The room was too small; there was no physical sign of abuse; the complainant’s reports were inconsistent; the complainant did not appear traumatized shortly after the alleged event; defendant had previously appeared uninterested in the girls and had behaved normally with them.

The court convicted defendant of one count of first-degree sexual abuse. Defendant contends on appeal that, under both State v. Southard, 347 Or 127, 218 P3d 104 (2009), and State v. Lupoli, 348 Or 346, 234 P3d 117 (2010), the court plainly erred in admitting the doctor’s diagnosis in the absence of physical evidence of abuse. To consider correcting a plain error, this court must first determine whether the purported error meets three requirements: (1) The error must be one of law; (2) it must be “apparent,” i.e., the point must be obvious, not reasonably in dispute; and (3) it must appear on the face of the record, i.e., the court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable. Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

[35]*35We describe briefly the underlying bases of defendant’s plain error argument. Under OEC 702, expert testimony is admissible if “specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” In Southard, decided on October 1, 2009, two and one-half months before defendant’s trial in December 2009, the Supreme Court considered the admissibility of a medical diagnosis of “sexual abuse” and whether it was “scientific evidence” that met the minimum standards for scientific validity under OEC 702, State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O’Key, 321 Or 285, 899 P2d 663 (1995). The court held that the diagnosis of sexual abuse, as made by a medical expert associated with KIDS Center, a nationally accredited medical facility, met the criteria for scientific evidence under OEC 702 and, further, that the evidence was relevant in a prosecution for sexual abuse. Southard, 347 Or at 138-39. The court explained, however, that the testimony showed that the methodology used to diagnose sexual abuse in the absence of physical evidence of abuse was largely dependent on an implicit credibility assessment. The court concluded that such a diagnosis is therefore inadmissible under OEC 403, because the probative value of the diagnosis is outweighed by the risk that a jury would determine the defendant’s guilt, based not on the its own credibility determination, but on the expert witness’s implicit conclusion that the victim’s reports of abuse are credible. Id. at 141-43. The court said:

“Our holding today is narrow. The only question on review is 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. We hold that where, as here, that diagnosis does not tell the jury anything that it could not have determined on its own, the diagnosis is not admissible under OEC 403.”

347 Or at 142. The court was careful to point out that its decision “does not resolve [ ] whether any subsidiary principles that inform that diagnosis are themselves admissible.” Id.

In Lupoli, decided after defendant’s trial, the court took on that question. The expert witnesses in that case had [36]*36explained that, in making a diagnosis of sexual abuse in the absence of physical evidence, they had evaluated the manner in which the child victim had reported the incident, and whether the victim’s disclosures were “clear,” “appropriate,” “detailed,” “consistent,” made in such a way that “you think that a kid is telling it like it is,” “developmentally appropriate,” and did not reflect risk factors such as “inappropriate sexual knowledge.” 348 Or at 353-56. In Lupoli, the defendant made no objection to the diagnosis of sexual abuse in itself. He did, however, object to the explanatory testimony concerning that diagnosis on the ground that it amounted to improper vouching by the experts for the victim’s credibility.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mosqueda-Rivera-Burdette
344 Or. App. 238 (Court of Appeals of Oregon, 2025)
State v. Reed
452 P.3d 995 (Court of Appeals of Oregon, 2019)
State v. Murillo-Bejar
437 P.3d 282 (Court of Appeals of Oregon, 2019)
State v. Cone
410 P.3d 347 (Court of Appeals of Oregon, 2017)
State v. Inman
366 P.3d 721 (Court of Appeals of Oregon, 2015)
State v. Ramirez-Estrada
317 P.3d 322 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
299 P.3d 569, 256 Or. App. 32, 2013 WL 1334197, 2013 Ore. App. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-cruz-orctapp-2013.