State v. Wilson

Decision Date27 October 1993
Citation855 P.2d 657,121 Or.App. 460
PartiesSTATE of Oregon, Respondent, v. Carl Duane WILSON, Appellant. 90-05-33176; CA A69589.
CourtOregon Court of Appeals

David E. Groom, Salem, argued the cause and filed the brief, for appellant.

Janie M. Burcart, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, Chief Judge, and DEITS and DURHAM, JJ.

DEITS, Judge.

Defendant appeals his convictions of three counts of sodomy in the first degree, ORS 163.405, and four counts of sexual abuse in the first degree, ORS 163.427, involving a ten-year old child. He assigns error to the trial court's decision to allow a medical doctor to testify that she diagnosed the child as having been sexually abused. He also assigns error to the trial court's admission, under OEC 803(4), of a video taped interview of the child made by personnel at Emanuel Hospital's Child Abuse Response and Evaluation Services (C.A.R.E.S.) Unit. Finally, he argues that the trial court erred in denying his motion for a new trial, or in the alternative for a mistrial, on the ground that the prosecutor made improper remarks during closing arguments. We affirm.

Defendant and the victim's mother had a sporadic relationship. Defendant would stay with her when he was in town, which was usually at least once a year. The child testified that defendant first touched her "private parts" when she was five years old and that the touching continued during his subsequent visits. Defendant last stayed with the child and her mother in December, 1989, for two weeks. The child testified that defendant repeatedly sodomized and sexually abused her during that visit. Shortly after defendant's last visit, the child told two school friends about the sexual abuse. In January, 1990, the child moved to her father's house. When the parents of the child's friends learned that the child had said that she was sexually abused, they told her father. The child's parents reported the abuse to Childrens Services Division (CSD) and took the child to the C.A.R.E.S. Unit at Emanuel Hospital, where the child was examined by Dr. Bays. Bays' examination of her revealed no physical evidence of abuse. The child was also interviewed by a C.A.R.E.S. staff member and that interview was video taped. On the basis of her evaluation of the child's interview, history and physical examination, Bays diagnosed sexual abuse.

In a motion in limine, defendant objected to a "state's expert [making] any comment regarding any alleged diagnosis * * * upon the ground * * * that any comment on an alleged diagnosis * * * would be a direct comment with regards to the credibility of the complainant in this case." The trial court denied the motion. On appeal, defendant argues:

"Dr. Bays' testimony and diagnosis was [sic ] based entirely on what the child told her. It is therefore abundantly clear that Dr. Bays was telling the jury in every way possible that she believed the child's story, short of saying, 'I believed the child's story.' "

According to defendant, because there was no physical evidence of abuse, the jury could infer from Bays' diagnosis of sexual abuse that she believed the child, making that diagnosis an impermissible comment on the child's credibility. 1 At trial, Bays was qualified, without objection, as an expert witness on child sexual abuse. 2 She testified to the following:

"Q [I]s there a medical diagnosis, a recognized medical diagnosis called sexual abuse?

"A Yes, there is.

"Q All right. Tell us a little bit about that, please.

"A Well, it's a diagnosis like any other diagnosis, like heart attack or a gall bladder problem or low back pain. If the diagnosis--usually the general diagnosis is child abuse and neglect and then under that there are different categories. So there would be child physical abuse, child neglect, failure to thrive, non-organic failure to thrive, child sexual abuse and so on.

"Q Is it--you've indicated that the diagnosis that you would reach is based on both a physical exam and the history of the patient. Is that--is that an accurate description of what you use as information?

"A That's correct.

"Q And is that a common approach in the medical profession generally, to use that type of information to reach a diagnosis?

"A That is always the approach in medicine to use the history, the physical and sometimes laboratory or x-ray information.

" * * * * *

"Q In seeing and examining [the child], did you reach a diagnosis as to whether that child had been sexually abused?

"A Yes.

"Q And will you tell the jury, please, what your diagnosis is.

"A My diagnosis was that [the child] had been sexually abused."

OEC 702 delineates the permissible bounds of expert testimony:

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."

The decision to admit expert testimony is within the discretion of the trial court. State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).

In Middleton, the court noted that there are limitations on opinion testimony. It explained that "in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." 294 Or. at 438, 657 P.2d 1215. The court concluded, however, that the fact that a jury could infer from an expert's testimony that another witness is or is not telling the truth is not necessarily an impermissible comment on the credibility of a witness:

"It is true that if the jurors believed the expert's testimony, they would be more likely to believe the victim's account. Neither of the experts directly expressed an opinion on the truth of the victim's testimony. Much expert testimony will tend to show that another witness either is or is not telling the truth. See State v. Stringer, 292 Or 388, 639 P2d 1264 (1982). This, by itself will not render evidence inadmissible." 294 Or. at 435, 657 P.2d 1215.

In Middleton, the court allowed two expert witnesses to testify, after defendant impeached the victim with her retraction of the allegations, that the victim's conduct was consistent with typical reactions of victims of familial child sexual abuse. The court rejected the idea that expert testimony concerning an ultimate issue usurps the function of the jury, because the jury is not bound by that testimony but must make the ultimate decision itself. 294 Or. at 435, 657 P.2d 1215.

In State v. Keller, 315 Or. 273, 844 P.2d 195 (1993), the court again applied the rule that one trial witness may not comment on the credibility of another trial witness. In that case, the defendant assigned as error the admission of specific portions of a doctor's testimony on the ground that it was a comment on the credibility of the complaining witness. The court agreed with the defendant that the doctor's testimony evaluating whether the child, who was an alleged victim of sex abuse, had been coached, led or had fantasized the incident was an impermissible comment on the credibility of the child, because each of those statements amounted to testimony that the child was credible.

Here, defendant argues that Bays' diagnosis of the child should have been excluded, because the jury could have inferred from that diagnosis that Bays believed the child's statements. We do not agree that the testimony was impermissible. Unlike the doctor in State v. Keller, Bays did not testify that the child had not been coached or led and had not fantasized the incident. As the court in Keller concluded, those statements were a direct comment on the credibility of the complainant. In this case, Bays testified that, on the basis of her evaluation of the child's interview, physical examination and history, she diagnosed the child as having been sexually abused. Although, if believed, Bays' testimony supported the child's testimony, that does not render it a direct comment on the child's credibility. It was an opinion as to the proper medical diagnosis. A medical doctor is not precluded from testifying as to her medical diagnosis simply because the jury may infer from that testimony that another witness is or is not telling the truth. Defendant had the opportunity to cross-examine Bays regarding the basis of her diagnosis. In addition, defendant produced his own expert witness who testified that there was insufficient evidence to support a diagnosis of sexual abuse. The trial court did not err in admitting Bays' diagnosis of the child as a victim of sexual abuse.

Defendant also assigns error to the admission of Bays' testimony regarding the percentage of cases evaluated by the C.A.R.E.S. Unit in which sexual abuse is diagnosed. Bays testified:

"Q Of the cases that come in at the CARES program, child sexual abuse cases, how many are founded, how many are determined to be unfounded, give us the breakdown, please.

"A Well, first it varies from month to month, depending on the cases that we see. And second, we usually have three categories. One is where we make a diagnosis of child abuse, either based on the history, the physical or both. Second is where we are uncertain or cannot decide, but we have concerns. And third is where we find no evidence of abuse. And it varies month to month. I try every year to look at the results for a few months every year and I can give you an example. In July, '89, forty-two percent of the cases we found evidence of abuse. In June, '89, twenty-two percent. In September '88, sixty-five percent.

"Q Can I ask you this: When you give us the percent where you found where the case was founded, can you give us the percent where cases were not...

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