State v. Murillo-Bejar
State v. Murillo-Bejar
Opinion of the Court
*15Defendant appeals a judgment of conviction for three counts of first-degree sexual abuse.
The charges in this case arose as a result of disclosures of sexual abuse that A, a seven-year-old girl, initially made to her mother, M. Defendant and M had been involved in a romantic relationship on and off for several years and had one child together. Several months after M had given birth to that child, and when she and defendant were no longer in a relationship, A informed M that defendant had "raped" her. A later told M that defendant touched and smelled "her parts." M, who was a Spanish speaker, reported the disclosure to the police with the help of an English-speaking neighbor in October 2015. A deputy sheriff, Rejaian, responded to the call. Because her office does not interview children A's age who are alleged to be victims of child abuse, Rejaian referred the case to Liberty House, a child abuse assessment center, so that A could be inter-viewed there.
*284Rejaian received a report from Liberty House *16on November 16, 2015, and she arrested defendant a week later. Defendant was ultimately charged with, among other things, several counts of first-degree sexual abuse.
At trial, A testified that defendant had inappropriately touched her on several occasions. Perez, a forensic interviewer from Liberty House also testified about her interview of A. She described her education and experience, the interview process, and the disclosures A made during the interview. Perez also explained that a medical provider watches the interviews and conducts a physical examination of the child; that examination consists of a "head-to-toe checkup, including private parts."
During the interview, A told Perez that defendant had "smelled her where he wasn't supposed to," that another time he touched her inappropriately, and that, on another occasion, defendant had licked her private part over her clothing. Given the type of contact A described, Perez testified that she would not expect a physical examination to result in any physical evidence of the touching and, indeed, the examination of A conducted by the medical provider did not reveal any physical evidence of sexual abuse.
At trial, defendant testified that he had broken up with M a short time before A disclosed the abuse. According to defendant, M was upset and threatened him. He denied ever having inappropriately touched A.
Rejaian also testified at trial, and it is her testimony that is the subject of defendant's assignment of error on appeal. Among other things, Rejaian testified about referring A to Liberty House for an interview. She described Liberty House as being "specially trained in interviewing children" and further testified as follows:
"[The State]: And was that interview scheduled and attended by [A]?
"[Rejaian]: Yes.
"[The State]: And what was your next step?
"[Rejaian]: I received the report back from Liberty House on November 16 of 201[5], and in that report they said there was a diagnosis of highly concerning for child sexual *17abuse. So after that, I went and contacted [defendant] at a home in Woodburn."
Defendant did not object to Rejaian's testimony regarding the diagnosis contained in the report from Liberty House.
On appeal, defendant asserts that, in the absence of physical evidence of abuse, the trial court's admission of Rejaian's testimony that A had received a diagnosis of highly concerning for child sexual abuse constituted plain error. Since Southard was decided, we have repeatedly held that the admission of a diagnosis of sexual abuse in the absence of physical evidence is plain error. See, e.g. , State v. Lopez-Cruz ,
Second, the state contends that the admission of the diagnosis evidence is not plain error because Rejaian's "reference to the Liberty House diagnosis did not identify the person making the diagnosis. It thus was not clear that the diagnosis had been made by a credentialed expert, surrounded with the hallmarks of the scientific method." (Internal quotation marks omitted.) In other words, the state asserts that this case differs from Southard and the cases following it because the diagnosis evidence came in through a police officer. We disagree; in our view, that factual difference does not meaningfully distinguish this case from Southard .
In Southard , the diagnosis at issue had come out of an assessment of an allegedly abused child at a child abuse assessment center similar to the one at issue in this case. See Southard ,
Here, Perez, the forensic interviewer from Liberty House, testified that a forensic interviewer has "gone through specialized training in order to be able to talk to a child to obtain reliable information, and to do so in a way that meets that child's specific developmental needs, as well as to minimize any kind of interviewer interference." She detailed her own education, training, and experience, and discussed the guidelines regarding which forensic interviewers in Oregon are trained. Perez also explained that, at Liberty House, in addition to a forensic interview, a physical examination which was a "head-to-toe checkup, including private parts" was conducted by a medical provider. She also explained that there was no physical evidence of sexual abuse and that, in the circumstances presented, no such evidence would be expected. Rejaian then testified that the report she received from Liberty House said "there was a diagnosis of highly concerning for child sexual abuse."
In our view, that testimony falls directly within the prohibition of Southard and the cases that follow it. As in Southard , in the *286absence of physical evidence, the diagnosis was necessarily based on the professionals at Liberty House having credited the child's account of having been inappropriately touched. And, although the diagnosis testimony itself came from a law enforcement officer, it is clear from the context that, like in Southard , it had the aura of expert testimony surrounding it. There was no question that the "diagnosis" came from Liberty House's report, and that report arose from an examination by both a medical provider along with a forensic examination by an expert interviewer *20whose methods had been detailed to the jury. Thus, in our view, the evidence in question is indistinguishable from the diagnosis evidence in those cases in which we have repeatedly concluded that admission of diagnoses of child sexual abuse in the absence of physical evidence is plain error.
Finally, the state contends that the admission of the diagnosis evidence in this case was not plain error because the record is susceptible to competing inferences about why defendant failed to object to the evidence, and one plausible inference is that defendant made a strategic decision not to do so. The state proposes that because the diagnosis did "not definitively state that the victim had been subjected to sexual abuse," but, instead, was only "highly concerning" for sexual abuse, counsel could have "concluded that the diagnosis would help defendant persuade jurors that reasonable doubt about defendant's guilt existed." The state also suggests that the fact that Southard was decided long before the trial in this case supports its assertion that counsel may have had strategic reasons for not objecting to the admission of the diagnosis evidence. That contention is unavailing. As we have explained, "competing inferences, for purposes of plain error analysis, must be plausible." Lovern ,
We turn, finally, to the question whether we should exercise our discretion to consider and correct the plain error in this case. See Ailes ,
Reversed and remanded on Counts 1, 2, and 3; otherwise affirmed.
Defendant also had been charged with one count of first-degree sodomy and one count of fourth-degree assault. The judgment reflects that those counts were dismissed.
Pursuant to ORAP 5.45(1), "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * * provided that the appellate court may, in its discretion, consider a plain error."
We are likewise unpersuaded by the state's attempts to distinguish the "highly concerning" diagnosis from similar diagnoses addressed in other cases. See Feller ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.