State v. Ovendale

292 P.3d 579, 253 Or. App. 620, 2012 Ore. App. LEXIS 1453
CourtCourt of Appeals of Oregon
DecidedDecember 5, 2012
Docket09C48935; A146835
StatusPublished
Cited by4 cases

This text of 292 P.3d 579 (State v. Ovendale) 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. Ovendale, 292 P.3d 579, 253 Or. App. 620, 2012 Ore. App. LEXIS 1453 (Or. Ct. App. 2012).

Opinion

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for one count of first-degree sodomy, ORS 163.405, and one count of first-degree sexual abuse, ORS 163.427. He raises four assignments of error, all but one of which we reject without discussion. We write to address only defendant’s contention that the trial court erred in admitting a diagnosis of “sexual abuse” into evidence during his jury trial. Defendant argues that, under State v. Southard, 347 Or 127, 218 P3d 104 (2009), a diagnosis of “sexual abuse” is never admissible in a criminal prosecution for sexual abuse. Alternatively, he argues that such a diagnosis is admissible only when supported by physical findings of an injury on the body of the alleged victim. We conclude that Southard did not bar the admission of the diagnosis and, accordingly, affirm.

Because defendant was convicted by a jury, we summarize the facts in the light most favorable to the state. State v. Vidal, 245 Or App 511, 513, 263 P3d 364 (2011), rev den, 351 Or 761 (2012). The facts underlying defendant’s conviction involve multiple episodes of abuse, involving different children. We set out only the facts necessary to address defendant’s remaining assignment of error.

One evening while his fiancée was at work, defendant was watching her 4-year-old son, A. When A’s mother returned home at approximately 11:00 p.m., she found A awake and downstairs with defendant, which was unusual. A’s mother took A upstairs into his bedroom to put him to bed. There, A told her that defendant had “put his peepee inside of his bottom.” A’s mother “freaked out” and took A into her bedroom, where, in front of her mirrored closet doors, she found fecal matter on the floor. A’s mother asked A what had happened, and A demonstrated that he had been on the bedroom floor, on all fours, and explained that defendant had assaulted him, that it had hurt, and that it “made him poop.”

A’s mother went downstairs and confronted defendant with A’s statements. Then, in front of A, defendant called the whole episode a misunderstanding. He said that A had wet his pants in the car, that defendant had given A a bath, and that A was probably talking about defendant’s actions in cleaning up after that accident. By that time, A’s [623]*623mother was noticeably upset and crying, and A said that he might have been mistaken. A’s mother was suspicious of defendant’s explanation, however, knowing that A had been potty trained for “quite some time”; she checked A’s clothing and car seat, and they were dry. A continued to vacillate on whether the abuse had occurred, but, after his mother stressed the importance of telling the truth, he ultimately confirmed that the assault had occurred.

That night, A’s mother took him to the emergency room. There, a doctor performed a brief visual examination and saw no signs of trauma. He explained, however, that the rectum expands to let large objects pass and, therefore, that the type of abuse described by A would not necessarily cause any physical trauma. The following day, after observing orange discoloration in A’s stool, A’s mother again took him to the emergency room. The same doctor performed a second examination, consisting of a rectal examination and chemical test of A’s stool. Neither examination revealed blood or signs of trauma.

Thereafter, a nurse practitioner at Liberty House examined A and found no physical irregularities or signs of trauma.1 Following the examination, the nurse observed another Liberty House employee conduct an interview with A, where A again stated that defendant had anally penetrated him and that “poop” had come out. The nurse also spoke with A’s mother, who confirmed that she had found feces on the bedroom floor. Ultimately, the nurse diagnosed A with “sexual abuse,” relying upon A’s statements and the fact that A had defecated on the floor.

Defendant was charged with one count of first-degree sodomy and four counts of first-degree sexual abuse. Two of the counts — one count of first-degree sodomy and one count of first-degree sexual abuse — arose out of defendant’s abuse of A. Defendant pleaded not guilty to all counts and proceeded to a jury trial.

At trial, A testified to spare, but consistent, details of the sexual abuse. He testified that defendant had touched [624]*624him in the “back side” with his “wiener” while they were upstairs in his mother’s bedroom. He testified that he and defendant had been naked and that he had defecated on the floor. A confirmed that, although he could remember only “a little” about the incident, he could confidently tell the jury that the abuse had occurred and that he had an independent memory of the events.

Given the absence of discernible physical trauma during A’s medical evaluations, the fecal matter that A’s mother discovered on her bedroom floor gained heightened significance at trial. The nurse practitioner, who had examined A at Liberty House, testified that she had found it “interesting and somewhat concerning” that feces had been found on the bedroom floor. She explained that any stimulation of the rectal muscles can elicit a bowel movement if there is stool in the rectum. Given that A had no prior history of defecating in inappropriate places, the nurse explained that she found the fecal matter “concerning that something had happened to his anal area.”

Likewise, the emergency room doctor who initially examined A acknowledged that the fecal matter was potential physical evidence that something had penetrated A’s anus. The doctor testified that he had not found the fecal matter relevant during his initial examination of A, but acknowledged that anal penetration may stimulate the rectal muscles and cause a bowel movement. He testified that he had not considered that possibility at the time of his initial examination.

The state ultimately sought to admit the Liberty House nurse practitioner’s diagnosis of sexual abuse as to A. Defendant objected, arguing that, under Southard, a medical expert cannot give a diagnosis of sexual abuse in the absence of physical findings of an injury. In response, the state argued that Southard's holding was narrow; the Supreme Court addressed only “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” 347 Or at 142 (emphasis added). The state argued that the [625]*625fecal matter on the floor constituted “physical evidence of abuse” and, therefore, that the nurse practitioner’s diagnosis fell outside of Southard’s holding.

In the subsequent colloquy, the nurse confirmed that she had reached a diagnosis of “sexual abuse,” based on A’s medical history — as reflected in the statements of A and his mother — and on the fecal matter found on A’s mother’s bedroom floor. Ultimately, the trial court allowed the diagnosis, after examining its basis:

“[Court:] So your opinion is based upon, one, the child’s statements, and, two, the fact that the child pooped on the floor.
“[Nurse:] Yes.
“[Court:] I’ll allow it. I think the poop on the floor goes beyond [Southard]

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Cite This Page — Counsel Stack

Bluebook (online)
292 P.3d 579, 253 Or. App. 620, 2012 Ore. App. LEXIS 1453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ovendale-orctapp-2012.