State v. Trager

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. George Edward TRAGER, Appellant. 9508-35239; CA A93245.
• Citation: State v. Trager, 974 P.2d 750, 158 Or.App. 399 (Or. App. 1999)
• Court: Oregon Court of Appeals
• Decision Date: 17 February 1999

Page 750

974 P.2d 750

158 Or.App. 399

STATE of Oregon, Respondent, v.George Edward TRAGER, Appellant.

9508-35239; CA A93245.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Nov. 26, 1997.

Resubmitted En Banc Nov. 19, 1998.

Decided Feb. 17, 1999.

Andy Simrin, Deputy Public Defender, argued the cause for appellant.With him on the brief was Sally L. Avera, Public Defender.

Kathryn H. Waldo, Assistant Attorney General, argued the cause for respondent.With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, Chief Judge, and WARREN, EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG and WOLLHEIM, Judges.

EDMONDS, J.

Defendant appeals his convictions on four counts of sexual abuse in the first degree, ORS 163.427.He assigns error to the admission of evidence of a medical doctor's diagnoses that the victims had been sexually abused based on the trial court's ruling that the state laid a proper foundation for scientific evidence under State v. Brown, 297 Or. 404, 687 P.2d 751(1984).¹The state cross-assigns error to the trial court's ruling that evidence of a physician's diagnosis that a victim has been sexually abused is scientific evidence for which a foundation must be laid under Brown.We affirm.²

Defendant was convicted of sexually abusing two young girls, both of whom were under 14 years of age.The children reported the abuse to their mother.Subsequently, Dr. Linda Lorenz, a board certified pediatrician who specializes in child physical and sexual abuse with Child Abuse and Response Evaluations Services (CARES), evaluated the children.

Defendant moved in limine to exclude any expert testimony concerning the medical diagnoses of sexual abuse of the victims.The court ruled that the evidence was admissible, subject to a proper foundation being laid for it under the criteria set forth in Brown.During trial, the state made an offer of proof out of the presence of the jury to demonstrate that Lorenz's testimony satisfied the Brown criteria.During the offer, Lorenz testified that she has evaluated more than 150 children in the past six years and has attended conferences on the subject of child sex abuse.She testified that a large body of specialized literature exists about child abuse and that child sexual abuse has been an accepted medical diagnosis "since the late sixties [or] early seventies."Lorenz indicated that some symptoms or behaviors exhibited by children who are examined would be "supportive" of a diagnosis of sexual abuse; however, no single behavior is considered by itself to be indicative of sexual abuse.

In her trial testimony, Lorenz also explained that "[s]tandard procedures and protocols are well defined in the field."Lorenz also discussed her evaluations of the victims.Before examining the younger child, Lorenz reviewed the police report and the hotline report from the Office for Services to Children and Families.She learned that the child's disclosure had been spontaneous.The younger child presented a history of bad dreams and toileting problems, which, according to Lorenz, were indicative of stress.Lorenz then conducted a physical examination of the child.The child reported to Lorenz that defendant had abused her.Lorenz described how the child's demeanor changed dramatically when the child began to speak about the abuse.She later learned that the older child had witnessed defendant sexually abusing the younger child.Lorenz conducted a similar evaluation with regard to the older child.That child also told Lorenz that defendant had abused her and pointed to her genital area to clarify where the abuse occurred.Defendant denied touching either of the girls in a sexual manner.Subsequently, defendant was convicted.

On appeal, defendant argues:

"A 'diagnosis' of sexual abuse is a type of evidence that is subject to the requirements for admissibility of scientific evidence.'Child sexual abuse' is not generally accepted as a medical diagnosis.The record in this case indicates that the error rate for making such an assessment is not subject to empirical verification.The 'diagnosis' is completely dependent on the expert's subjective assessment.A 'diagnosis' of sexual abuse does not meet the requirements for admissibility of scientific evidence, and instead operates as a low-tech polygraph impermissibly assessing the credibility of a witness.The erroneous admission of the doctor's testimony requires reversal."

The following cases inform our consideration of defendant's argument.In State v. Milbradt, 305 Or. 621, 756 P.2d 620(1988), an issue was whether a caseworker, who was not an expert on mentally retarded adults, could testify about the manner in which child victims ordinarily react to sexual abuse without meeting the Brown foundation requirements for scientific evidence.The defendant in Milbradt was charged with sexual offenses involving two mentally retarded adults.The caseworker was permitted to testify about the way in which child sex abuse victims typically react to sexual abuse.The court said:

"This case deals with two young adults who have had substantially different backgrounds and experiences and who are physically and mentally quite dissimilar to any child victims previously encountered by this witness.* * * We have set out in great detail in Brown, 297 Or. at 409-18, 687 P.2d 751, the necessary foundation that must be laid for the introduction of scientific evidence.Without repeating what we said there, we direct the attention of anyone who is offering a form of scientific evidence to the procedures for admission set forth in Brown.* * *

" * * * We suggest that in future cases involving 'syndrome' testimony, full foundations be established, if indeed it can be shown that the so-called 'typical' reactions can be demonstrated to be either typical or reliable.* * * " Milbradt, 305 Or. at 630-31, 756 P.2d 620.

Thus, the court implied that evidence of typical reactions is syndrome evidence that draws its convincing force from some scientific principle or empirical data.

We followed the court's holding in Milbradt in State v. St. Hilaire, 97 Or.App. 108, 775 P.2d 876(1989).In St. Hilaire, the defendant assigned as error the trial court's admission of a police detective's testimony "that victims of sexual abuse rarely report the crime immediately, often minimize the activity and often are imprecise about the dates of occurrences."97 Or.App. at 111, 775 P.2d 876.We agreed with the defendant's argument that "sex abuse syndrome" testimony is admissible only if an appropriate foundation is laid under Brown and Milbradt.We concluded that the state had laid a proper foundation for the detective's testimony and that his testimony was relevant to rebut the inference that the victim's testimony was not credible.³

In State v. Lawson, 127 Or.App. 392, 872 P.2d 986, rev. den.320 Or. 110, 881 P.2d 141(1994), where the defendant was charged with assault and criminal mistreatment of infants in her care, we again followed the holding in Milbradt.The defendant offered the testimony of a psychologist that she did not meet the profile of a child abuser.She also relied on psychological testing that indicated that she did not have the psychological characteristics of known, active child abusers.We explained:

"[T]he type of evidence proffered by defendant in this case involves comparing an individual's behavior with the behavior of others in similar circumstances who have been studied in the past.This comparison evidence purports to draw its convincing force from scientific principles.It requires an expert witness who can explain the data and test results, and, if necessary, the scientific principles that are said to give the evidence its reliability or accuracy."Lawson, 127 Or.App. at 395, 872 P.2d 986.

In Stafford, the question was whether the testimony of a licensed clinical psychologist about "grooming" behavior of pedophiles was required to meet the requirements for scientific evidence.The lead opinion held that the evidence at issue was not "syndrome" or "profile" evidence that drew its convincing force from empirical data or an empirical study, nor was such empirical information the source of the evidence's reliability or accuracy.Rather, the evidence was derived from the personal observations of an expert witness made in light of the witness's education, training and experience.The lead opinion held that the psychologist's testimony was relevant under OEC 401 and that, because the force of his testimony was not drawn from psychological testing or any other scientific methodology but was derived from personal observations made in light of his education, training and experience, it was not "scientific evidence."

In this case, Lorenz's testimony concerning the diagnoses of sexual abuse is not "syndrome" or "profile" evidence because it does not draw its convincing force from generalizations based on empirical data or an empirical study.Moreover, unlike in Stafford, Lorenz's testimony concerned differential diagnoses made in light of her education, training and experience after personally examining the victims.The weight or force of those diagnoses was derived from Lorenz's technical and specialized knowledge as a medical doctor.In that light, we conclude that Lorenz's testimony in this case was not "scientific evidence" within the meaning of Brown.The trial court erred in ruling to the contrary, but it correctly admitted Lorenz's testimony.

Affirmed.

WARREN, J., concurring.

I agree with the majority that this is not "scientific evidence" within the meaning of State v. Brown, 297 Or. 404, 687 P.2d 751(1984).I continue to believe that the Brown test should apply only when the methodology for gathering scientific evidence is novel.State v. Stafford, 157 Or.App. 445, 467, 972 P.2d 47(1998)(Warren, J., concurring).

LANDAU, J., concurring.

At issue in this case...