State v. Arreola

• Decision Date: 20 June 2012
• Docket Number: C023524CR; A144001.
• Citation: 250 Or.App. 496,281 P.3d 634
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jose Luis ARREOLA, Defendant–Appellant.
• Court: Oregon Court of Appeals

250 Or.App. 496
281 P.3d 634

STATE of Oregon, Plaintiff–Respondent,
v.
Jose Luis ARREOLA, Defendant–Appellant.

C023524CR; A144001.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 2011.
Decided June 20, 2012.

[281 P.3d 635]

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

[250 Or.App. 497]Defendant appeals from a judgment of conviction on one count of unlawful sexual penetration in the first degree and two counts of sexual abuse in the first degree. On the first day of defendant's trial, two medical expert witnesses testified that they had diagnosed the six-year-old child victim as having been sexually abused based on the credibility of her report; the next day, the Oregon Supreme Court issued its opinion in State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), holding that such evidence is inadmissible. Defendant moved for a mistrial; the court denied the motion and instead instructed the jury to disregard the experts' testimony regarding their diagnoses. On appeal, defendant assigns error to the trial court's denial of his motion for mistrial, arguing that the jury instruction did not cure the prejudice caused by the erroneous admission of the experts' testimony. We conclude that the medical diagnosis testimony was so prejudicial that defendant's ability to obtain a fair trial was impaired. We therefore reverse and remand.

Because defendant was convicted, we summarize the facts in the light most favorable to the state. State v. Vidal, 245 Or.App. 511, 513, 263 P.3d 364 (2011), rev. den.,351 Or. 761 (2012). Defendant visited the home of his wife's sister (mother), where her two teenage sons and six-year-old daughter, B., were present. The boys were sitting on the floor playing video games while defendant and B. sat on a couch behind them playing a game that involved tickling. Defendant left the house when mother returned. Later that day, B. told mother that defendant had “put his fingers on me, underneath my shorts, and

[281 P.3d 636]

he was tickling me” and that defendant had touched her on “her back part.”

Mother took B. to a pediatrician, Dr. McNamara, who performed an anogenital examination. His only relevant finding was that B.'s vagina had “no obvious hymenal rim and notching [was] present.” When he asked where defendant had touched her, B. pointed to the area between her anus and vagina. McNamara referred B. to CARES, a child abuse assessment center, where a medical examiner and a social worker conducted an abuse assessment. McCready, a pediatric nurse practitioner, performed a physical evaluation of [250 Or.App. 498]B., and after that evaluation, a social worker interviewed B. while McCready observed from a separate room. During both the physical evaluation and the interview, B. indicated that defendant had put his fingers in her anus, but she denied that he touched her vagina. The examination of B.'s anus yielded no physical indication of abuse, though B.'s hymen was “not of a vast quantity or a vast amount,” a nonspecific finding that, according to the testimony, was not by itself definitively indicative of past trauma.

Defendant was arrested and charged with one count of unlawful sexual penetration in the first degree, ORS 163.411, and two counts of sexual abuse in the first degree, ORS 163.427. The sexual penetration charge specified that it related to the penetration of B.'s anus, and the charges for sexual abuse in the first degree related to the touching of B.'s buttocks and genital area. Before defendant's trial date, however, he was released on bail and fled the country. He was arrested on a warrant six years later, and this case was tried shortly thereafter.

At trial, McNamara and McCready testified for the state as medical experts regarding their findings. McNamara testified that he believed that B. had been sexually abused, and McCready testified that she, too, had made a diagnosis of sexual abuse. Additionally, the jury watched B.'s videotaped interview with the social worker at CARES. Also on the first day of trial, B. testified that she remembered that defendant touched her vagina with two of his fingers, but she did not remember or recall many details.

On the second day of trial, defendant testified, and he denied that he had abused B. That same morning, the Oregon Supreme Court decided Southard.¹ In that case, the Supreme Court considered 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 [250 Or.App. 499]absence of any physical evidence of abuse.” 347 Or. at 142, 218 P.3d 104. The court held that, where “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.” Id. The court reasoned that, in such circumstances, the probative value of the diagnosis is “marginal” in that juries routinely make those types of credibility determinations, but that “[t]he risk of prejudice, however, [is] great.” Id. at 140, 218 P.3d 104. The diagnosis of the child in Southard was “particularly problematic,” the court explained,

“because the diagnosis, which was based primarily on an assessment of the [child's] credibility, posed the risk that the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer to the expert's implicit conclusion that the victim's reports of abuse are credible.”
Id. at 141, 218 P.3d 104.

After the lunch break on the second day of trial, defendant's counsel moved for a mistrial, arguing that, under OEC 403 and Southard, defendant had been unfairly prejudiced by the jurors having heard inadmissible evidence. He also requested that, if the motion for mistrial were denied, the court instruct the jury to disregard the portions of McNamara's and McCready's testimony diagnosing sexual abuse. The trial court denied the motion for a mistrial. After defendant finished

[281 P.3d 637]

testifying, the trial court instructed the jury:

“Ladies and gentlemen, yesterday the Oregon Supreme Court rendered a decision stating that a diagnosis of child * * * sexual abuse is not admissible in cases such as this. Therefore, you are to disregard only the witness's statements that they made a diagnosis of child sexual abuse. All other portions of their testimony you are allowed to consider.”

Ultimately, the jury convicted defendant on all three counts.

Defendant now appeals, arguing that, in this case, the evidence of medical diagnoses of sexual abuse was so prejudicial that a curative instruction was insufficient and a mistrial should have been...