DocketNumber： C110695CR; A153759
Judges： Duncan, Flynn, Lagesen
Filed Date： 11/18/2015
Status： Precedential
Modified Date： 11/13/2024
Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427. Defendant assigns error to the trial court’s pretrial exclusion of expert testimony that defendant offered to support his contention that his admissions to touching the victim were a product of an adjustment disorder and were misunderstood as confessions of abuse. We conclude that the trial court erred in excluding that testimony regarding diagnoses of defendant’s mental health issues, and we further conclude that the error was not harmless. We therefore reverse and remand.
I. BACKGROUND
Defendant and his wife, S, were married for eight years and have two children, M and L. Defendant was indicted in April 2011 for one count of sexual abuse in the first degree based on an allegation of sexual contact with M between March 2009 and March 2010. Because defendant argues that the excluded expert testimony would have helped to explain statements and behavior to which the state pointed as admissions of guilt, we describe those statements and behavior in detail. M was four years old in November 2009, when S returned home from work one morning and found defendant extremely upset. As S later described the discussion, defendant told her that she would never forgive him, handed over his wedding ring, and then told her that he had touched M over her diaper.
Defendant acknowledged that he was very emotional when S came home and that he had thoughts about “my cousin and my mom being molested as a kid, and I felt that that was pretty disgustingU” He testified, however, that he told S he only accidentally touched M’s diaper while pulling up her covers and that S “freaked out.” He insisted that he “really didn’t think much of it other than the fact it was an accident” and that he took off his ring and left the house because of S’s reaction. He described his thoughts as, “[Y]ou know, you’re freaking out at me, I’m done, I’m going to walk away here.”
S agreed to stay married to defendant for a short time so that he could seek counseling using her health insurance. S insisted, however, that she “needed some sort of proof that says that [defendant] did this so that * * * he couldn’t come back later and say that he wanted the kids.” S testified that she wrote the following statement for defendant to sign:
“I, [defendant], am admitting to touching my oldest daughter, [M], in an inappropriate way. I went in her room early in the morning and was tucking her into bed when I ran my hand over her diaper, over her pubic area. I then walked out and went to bed. My daughter did not wake up. I have never done this before. When my wife came home from work, I told her. She told me to leave and I agreed to that and to get counseling. I am writing this so my wife, [S,] has proof for the protection of our children.”
S testified that she read the document out loud to defendant, and then defendant read and signed it. At trial, defendant took the stand and denied that S showed him the document and claimed that his signature was forged.
S and defendant divorced in March 2010. On September 11, 2010, M told S, “Well, one time I was in bed with daddy and — and he put his hand down my diaper.” M moved her hand over her pubic area to show S how defendant had touched her and said that defendant’s hand was on “her private.” M said that defendant did not take his hand out, so M pulled his hand out of her diaper. M told S that she
A few days later, before S called the police, she had M repeat the story. M’s story was the same except for an added detail about defendant saying, “I’m sorry.” M described the incident similarly in a recorded interview with a medical examiner at CARES Northwest on September 20, 2010, and in testimony at trial. The CARES medical examiner did not find any physical signs of abuse, but testified that that was consistent with an allegation of touching the outside of the vagina.
Before the disclosure by M, defendant attended counseling with Dr. Callum, a licensed psychologist, for 15 sessions between December 2009 and July 2010. Defendant discussed with Callum issues of anxiety and marital difficulties. He told Callum that he was concerned about “thoughts” of touching his children but assured Callum that he had “never” acted on the thoughts. Defendant later insisted that he never had inappropriate thoughts but that he and S agreed that he would tell Callum otherwise in order to avoid telling her about the touching incident, which defendant feared Callum might have to report to the authorities. Callum was not aware of the signed statement during the time that she was providing therapy.
Defendant was arrested on April 3, 2011. Nearly a year later, defendant was in the Medical Observation Unit of the Washington County Jail when he approached two deputies and asked, “What happens if I confess right now?” A few minutes later, defendant approached them again and said, “I did it. I confess.” A deputy told defendant that the matter was between him and the courts. Defendant continued to pace the unit, approached the deputies again, and said, “Okay. I touched my daughter. I admit [it]. I’m a jerk.”
Before trial, it became apparent to the state that defendant intended to call Callum as one of his witnesses to testify about her clinical observations and opinions about defendant. The state filed a motion in limine to exclude her testimony, arguing, among other things, that the evidence was inadmissible under OEC 702, which provides that, “[i]f scientific, technical or other specialized knowledge will assist
The court held a pretrial hearing at which defendant elicited extensive testimony from Callum as an offer of proof. On direct examination during that proffer, Callum testified that defendant
“had very low self-esteem. He was also plagued by fears and many of the cognitions of his childhood, which kept on just ruminating [in] his head, and those were the fears and negative thoughts that he was always having. And which continuously made him wonder if he was okay, what was wrong with him.”
Callum testified that, based on her clinical observations, defendant’s “level of rumination” could “definitely lead him to become obsessive” and, at times, “be unhealthy.”
Later in her direct examination, Callum returned to the subject of defendant’s mental health, and she was asked whether he had “adequate coping skills and self-esteem to deal with personal issues.” She testified, “No. No. A lot of the times he — he was very fearful, and he let * * * the rumination of his thoughts plague. He could not let those things go.” On cross-examination, she further explained the nature of defendant’s adjustment disorder and mental health issues:
“A. [CALLUM]: * * * I diagnosed him as adjustment disorder with depressed mood. And I also diagnosed him with a trauma related to childhood physical and emotional*7 abuse. And then the AXIS IV would be (indiscernible) experiencing marital difficulties or extramarital affairs.
“Q. [PROSECUTOR]: What is adjustment disorder?
“A. [CALLUM]: Adjustment disorder is when they have difficulty in [being] able to cope with the situation or where they have — just not being able to — to put everything together and they are letting it affect them. And you — and there’s several — you can have adjustment disorder not otherwise specified, you can have adjustment disorder with anxiety and depression. You can have adjustment disorder with anxiety alone, you can have it with depression alone. You can also have it — adjustment disorder with a variety of emotions. And that is a very typical diagnosis when people are having difficulty in bringing it all together.”2
Also on cross-examination, Callum addressed the relationship between defendant’s mental health diagnoses and his statement to the jail deputies:
“Q. [PROSECUTOR]: Were you aware that [defendant] confessed in March of 2012 to touching his daughter, to two jail deputies, without them asking any questions?
“A. [CALLUM]: I heard about that, yes.
“Q. [PROSECUTOR]: Okay. And that’s factoring into your equation as well, when you say to a reasonable degree of medical certainty, you can testify under oath that he did not molest any of his children or touch them in an inappropriate way?
“A. [CALLUM]: In regards to that confession-—
“Q. [PROSECUTOR]: I’m asking you whether you’re factoring that in.
“A. [CALLUM]: And that’s what I’m going to say. In regards to that confession, I would factor my knowledge*8 about him, about his adjustment, you know his high degree of distress and so that — that would be where with my medical certainty would be he was very distressed. And whether he’s confessing to something out of distress, that’s within the realm of possibility.
* * * %
“Q. [PROSECUTOR]: And all that [a signed confession, disclosure of thoughts of sexually touching children, and the jailhouse admissions], even knowing that, today you’re testifying under oath, that you believe to a reasonable degree of medical certainty that he did not abuse his children?
‘A. [CALLUM]: That’s correct.”
Following the offer of proof, the state argued, as it had in its written motion, that “there was no description by *** Callum, as to how this adjustment disorder would have affected [defendant’s] likelihood of confessing, making false confessions, writing false confessions, anything.” The state further contended that “there’s been no evidence that would connect his mental health issues, or whatever he’s going through, his adjustment disorder, to any sort of other behavior, of how that would affect his behavior throughout the course of trial — and again, that’s what * * * this witness is being proffered for.”
The trial court then expressed its view that defendant’s adjustment disorder was not “relevant” to the issues in the case. The court explained:
“I’m looking at the diagnosis of his adjustment disorder with depression, thinking well, what does that have to do with anything? I’m looking at the — he was there to be treated by — he was there to be treated by Dr. Callum, the wife wasn’t there for treatment, the child wasn’t there for treatment, she had very little contact with either one of them in a treatment phase. Certainly she is not going to be able to get — as you said yourself, she can’t give the opinion of what she — that she believes he didn’t do the act, and all that kind of stuff.
“But, you know, the fact that he suffers from adjustment disorder with depression, has really nothing to do with this case.
*9 “*** I’m having a hard time figuring out the rest of this, because I don’t know what the rest — you were talking about you wanted to get into his psychological profile, and I’m thinking well, how is that relevant to his not understanding what he signed or — I mean, other than that, I don’t know what it’s relevant to.”
(Emphases added.)
Defense counsel then tried to address the court’s concern about the connection between Callum’s testimony and his theory of the case. Counsel argued that defendant’s “psychological profile also applies to the statements of the guards, because of his poor coping skills and his excessive rumination and his hallucinatory behavior,” and that “this is the nexus right out of Nichols, is that people who have poor coping skills, try different strategies, and — and people make false confessions, and make false statements.”
Counsel emphasized that the theory of defense was that the defendant’s hand
“brushed the front of [M’s] diaper, and that what it was in fact, was an accidental touching, but that [defendant], because of his excessive rumination, as described by Dr. Callum, his poor life skills, his poor coping skills, his poor understanding of the way things work, I believe she described him as being very simplistic, he began ruminating over that and wondering because of his familial origin, if he was turning into the kind of person that would do something like this to his daughter.”
(Emphasis added.)
Counsel further emphasized that he was “not just coming up with this”; when defendant was evaluated by a different psychologist, Dr. Czar, defendant had denied any sexual motive in the touching and had insisted that
“what we said to Dr. Callum, which was 1 had bad thoughts,’ was something that he and his wife hatched together to get him services. That he was concerned, that because of his family origin, that he might have a subconscious motive that was in play.”3
The trial court agreed with the state and ruled that Callum “cannot get into his psychological diagnosis or profile.” The court explained that the “diagnosis is [not] helpful to the jury. There’s no nexus between that diagnosis and the defense in this case.” (Emphasis added.)
At trial, the state offered evidence of defendant’s conduct, as described above: repeated admissions to S about touching M and having sexual thoughts about his children, his admissions to Callum that he had sexual thoughts about his children, and testimony from M that defendant had abused her. Defendant took the stand and testified in his own defense. The jury found defendant guilty, and he was convicted of first-degree sexual abuse.
II. ANALYSIS
On appeal, defendant argues that the trial court erred by granting the state’s motion to limit Callum’s testimony concerning defendant’s mental health issues. Defendant argues, as he did below, that Callum’s testimony about his adjustment disorder and corresponding “very, very poor coping skills” were relevant to his theory that the disorder “led him to ruminate and obsess over the sexual abuse that occurred in his family when he was a child and to consequently overreact to and misinterpret his accidental touching of M.” Defendant’s theory, he argues, is that he “made statements to [S] and the jail guards. Others interpreted those statements as admissions of touching M with a sexual purpose though defendant did not acknowledge any sexual intent.” According to defendant, expert testimony
A. Standard of Review
“We review the trial court’s order to exclude expert testimony to determine whether the court applied the correct principles of law and did not abuse its discretion.” State v. Gherasim, 329 Or 188, 198, 985 P2d 1267 (1999). Discretion in the context of evidentiary rulings “refers to the authority of a trial court to choose among several legally correct outcomes.” State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000). Thus,
“we first must review evidentiary rulings without deference to determine whether proper principles of law were applied correctly. * * * Only if we determine that application of the correct legal principles leads to more than one correct outcome do we continue to review whether the trial court abused its discretion in choosing an outcome.”
Id.
B. OEC 702
In light of that standard of review, we begin by describing the legal principles implicated by the state’s motion to exclude Callum’s testimony. We have observed that the “test under OEC 702 has been stated rather simply as ‘whether the expert’s testimony, if believed, will be of help or assistance to the jury.’” Nichols, 252 Or App at 119 (quoting State v. Stringer, 292 Or 388, 391, 639 P2d 1264 (1982)). In application, however, the test is more complex. As the court explained in State v. O’Key, 321 Or 285, 298, 899 P2d 663 (1995):
“The requirement in OEC 702 that the evidence or testimony ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ is intended to serve multiple functions, such as:
*12 “(1) supplying general propositions which will permit inferences from data which the trier of fact would otherwise be forced to find meaningless; (2) applying general propositions to data so as to generate inferences where the complexity of the body of propositions applied, the difficulty of the application, or other factors make the expert’s conclusion probably more accurate or precise than that of the trier of fact; (3) modifying, qualifying, and refining general propositions which the trier of fact may reasonably be expected to use; and (4) adding specialized confirmation and, thus, confidence to general propositions otherwise likely to be assumed more tentatively by the trier.”
(Quoting John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 Or L Rev 349, 360 (1992).)
C. State v. Nichols
To serve any of those multiple functions, the expert’s testimony must be explained in a way that will permit a trier of fact to draw reasonable inferences about pertinent issues in the case.
In Nichols, the state tried the defendant on the theory that she had murdered her neighbor in the course of stealing the neighbor’s Oxycodone and other property. As
To counter that testimony, the defendant sought to introduce testimony from her counselor about her mental health. The defendant contended that, “because the state was using her inappropriate responses and behavior during the investigation to imply that she was guilty, she should be allowed to introduce evidence, in the form of expert testimony, of possible other explanations for her conduct.” Id. The counselor’s testimony was “relevant to show that her behavior was not an indication of guilt but, rather, was a result of her mental illness.” Id.
The counselor’s testimony was then presented during an offer of proof outside the jury’s presence. The counselor testified that he had performed a health assessment that revealed that the defendant suffered from bipolar disorder and borderline personality disorder, had a history of substance abuse and kleptomania, and demonstrated self-destructive behavior. Id. at 117-18. He also mentioned that he had observed “manifestations of [] defendant’s
The trial court excluded the proffered evidence as unhelpful, and we affirmed, concluding that the counselor’s testimony would have given the jury the diagnoses without “any explanation as to how those diagnoses might generally affect someone’s behavior, let alone how they might have affected [] defendant’s behavior.” Id. at 121.
In the course of our analysis, we distinguished Gherasim, 329 Or at 188, a case in which the Supreme Court concluded that the trial court should have admitted an expert opinion that “the victim likely suffered from dissociative amnesia and explained that, as a result, her capacity to remember what had occurred on the night she was assaulted was impaired.” Nichols, 252 Or App at 121. Our decision emphasized that the evidence in Nichols lacked the link between the defendant’s mental health issues and her behavior that, in Gherasim, made the diagnosis evidence helpful to the jury. Without such a link, we explained, the expert evidence would have left the jury “with diagnoses but no further explanation as to how those diagnoses might affect” the behavior at issue and, thus, “would not have assisted the jury in assessing defendant’s behavior.” Id. Again contrasting Gherasim, we explained:
“In [that case], the expert’s failure to explain his diagnosis in detail was not fatal to the admissibility of his testimony, but here defendant failed even to offer the level of explanation offered in Gherasim. That is, in Gherasim the expert explained that the victim’s condition affected her capacity to remember and to accurately recount what occurred on the night that she was assaulted. In this case, defendant’s counselor failed to offer even a rudimentary explanation that would link defendant’s behavior to her mental health issues. Accordingly, the trial court did not err in excluding the testimony of defendant’s mental health counselor.”
Nichols, 252 Or App at 121 (emphasis added).
In this case, the trial court excluded Callum’s testimony relating to defendant’s adjustment disorder on the ground that “[t] here’s no nexus between that diagnosis and the defense in this case,” presumably drawing on our decision in Nichols. However, Nichols does not support the court’s ruling.
As just described, Nichols involved a circumstance in which the defendant sought to introduce expert testimony to explain her behavior, but then failed to elicit testimony that supplied “even a rudimentary explanation that would link [] defendant’s behavior to her mental health issues.” Consequently, the counselor’s diagnosis, standing alone, was not pertinent to any issue in the case, because a fact-finder would have been required to speculate about how the diagnosis had any bearing on the facts at issue.
By contrast, defendant’s offer of proof in this case connected defendant’s diagnosis of an adjustment disorder to defendant’s behavior that was at issue. Callum testified that a person with an adjustment disorder might “have difficulty in [being] able to cope with the situation or where they have — just not being able to — to put everything together and they are letting it affect them”; that defendant had an adjustment disorder and “very, very, poor coping skills”; that, as a result of his poor coping skills, he had a “level of rumination” that at times led to unhealthy obsession; and that he was “plagued by fears and many of the cognitions of his childhood, which kept on just ruminating [in] his head, and those were the fears and negative thoughts that he was always having” and that “continuously made him wonder if he was okay, what was wrong with him.”
On this record, unlike in Nichols, it is clear that the expert testimony, if believed, could have helped the jury assess defendant’s behavior. As defendant points out, his theory of the case — which he articulated before trial when the court ruled on the motion in limine — was that he accidentally touched his daughter on her diaper while pulling up her covers; that he “began ruminating over “that accidental touching incident and then reported it to his wife out of concern,
In short, the record supplies a nexus between Callum’s testimony about defendant’s adjustment disorder and its effect on defendant. That testimony, if believed, would have helped the jury to assess defendant’s explanation for why he would have told his wife about touching M, why he would have signed the written confession, and why he would have later confessed to jail deputies, if defendant had only accidentally touched M, as he maintained. The trial court therefore erred in excluding Callum’s diagnosis testimony on the ground that it lacked a nexus to defendant’s behavior.
E. Harmless Error Analysis
The remaining question is whether that error was harmless. See Or Const, Art VII (Amended), § 3 (an appellate court must affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error
According to the state, the exclusion of Callum’s testimony was harmless in light of the fact that defendant himself took the stand and testified in a manner that was inconsistent with some parts of the defense theory that he advanced during the hearing on the motion in limine. The state points out that, with respect to his initial statements to his wife, defendant insisted at trial that he had described the incident as an accidental touching and his wife had overreacted. With respect to the written confession, defendant testified that he had only seen the document in preparation for trial and that his signature was forged. And, with respect to his statements to the jail deputies, defendant testified at trial that he was “processing just fine” and not under any stress when he made those statements. Given that testimony, the state argues, “Callum’s proposed testimony would not have helped the jury in understanding defendant’s conduct or statements, [and] any error in excluding her testimony was necessarily harmless.”
Although defendant’s own trial testimony muddled the theory initially advanced by defense counsel,
Moreover, although defendant testified that he was “processing” fine and not under stress at the time he confessed to jailhouse deputies, he also testified, “I honestly don’t know why I would have said that I had touched my daughter.” Callum’s testimony would have allowed defense counsel to supply an alternative explanation for defendant’s seemingly incriminating behavior — even if defendant was not consciously aware that he was under stress at the time that he made the statements.
Finally, this is not a case in which we can conclude that there was “overwhelming evidence” that defendant committed the abuse regardless of whether Callum’s testimony is considered. Cf. State v. Harding, 221 Or App 294, 302, 189 P3d 1259, rev den, 345 Or 503 (2008) (concluding that error in admitting the defendant’s inculpatory statements was harmless “in- light of the overwhelming evidence
The state’s closing argument repeatedly emphasized defendant’s own statements as proof that he was guilty. Thus, the determination of defendant’s guilt primarily depended on whether the jury believed defendant’s theory that his adjustment disorder, with its effect on his thought process and coping abilities, explains the incriminating statements. Callum’s testimony would have helped the jury assess defendant’s theory and “was evidence that defendant was entitled to present to the jury.” See Gherasim, 329 Or at 198; see also State v. Marquez-Vela, 266 Or App 738, 746, 338 P3d 813 (2014) (evidentiary error related to central factual issue in the case is less likely to be harmless). We do not suggest that the jury would have believed Callum’s testimony, but we cannot weigh that testimony, or assess the credibility of the other witnesses, in making the harmless error determination. See Davis, 336 Or at 32 (explaining that courts do not sit as factfinder when conducting harmless error review). Accordingly, we reverse and remand defendant’s conviction.
Reversed and remanded.
Although the challenged ruling was made following a pretrial hearing, our background discussion includes evidence presented during trial to provide context for our harmless error analysis.
On redirect examination, Callum was asked whether, based on her experience seeing defendant at the jail, he continued to suffer from poor coping skills. She testified:
“Very, very poor coping skills. This is where the adjustment disorder really comes into play more so.
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“He is unable to adjust to the situation, hence the disorder name, adjustment disorder. He has been very influenced by the distress level that he has been experiencing.”
Defense counsel represented to the court that one or more of defendant’s uncles were sex offenders and that defendant’s sister and his cousin were sexually assaulted by a family friend.
There is some overlap between the principles of relevance and helpfulness in that regard. See State v. Wright, 323 Or 8, 17, 913 P2d 321 (1996) (explaining that the concept of “helpfulness” subsumes a relevancy analysis, citing Strong, 71 Or L Rev at 361 n 48); O’Key, 321 Or at 302, 319 (explaining that, to be helpful to a jury, “the scientific evidence must be pertinent to the issue to which it is directed,” and concluding that “HGN test evidence also meets the helpfulness requirement in OEC 702. HGN test evidence is pertinent, to the same extent as are other field sobriety tests, to the issue to which it is directed, namely, whether a defendant was under the influence of intoxicating liquor. Moreover, such evidence may be of assistance to the trier of fact in one or more of the ways the ‘helpfulness’ standard in OEC 702 is intended to serve.”); cf. State v. Lillie, 222 Or App 512, 515, 193 P3d 1050 (2008), rev den, 345 Or 618 (2009) (characterizing the defendant’s argument under OEC 702' — “that, in the absence of an explanation of the meaning of ‘to a reasonable degree of medical certainty,’ the physicians’ testimony was not helpful to the jury in determining whether the state had met its burden to prove causation beyond a reasonable doubt” — as an argument “that the testimony was not relevant”).
The trial court did not analyze whether, even if helpful, the probative value of the testimony would have been substantially outweighed by its prejudicial effect, and we do not address that issue.
During his opening arguments, defense counsel advanced a theory that was consistent with the theory argued during the hearing on the motion in limine. He told the jury:
“[Defendant] didn’t think much of it at the time. He went back to bed, woke up early the next morning and started thinking about it, began ruminating over it, and it started taking over all of his thoughts. Now, why is that?”
Counsel then argued that defendant came from a family that had experienced sexual abuse and that “it weighed heavily upon him,” that he woke up, “started thinking about what occurred with his daughter, and started thinking about it and wondering whether or not there was something to it, whether or not there was something subconscious or something was there and it started bothering him.” Counsel continued:
“[Defendant], lacking the coping skills and understanding of what he did, and inspired by the fear that he was doing something to become something that he didn’t want to be, okay, was worried that there was something else there. Was worried there was a subconscious motive, and he began ruminating over it and his mind went crazy over it. It just went out of control.”
We do not address defendant’s challenges to the trial court’s exclusion of other aspects of Callum’s expert testimony (including testimony regarding the “child abuse potential inventory” and the expert’s observations of the victim), because those rulings were based on a record that could easily be different on remand.