Oregon Appellate Court 03-09-11

by: Abassos • March 8, 2011 • no comments

Read the full article for details about the following new cases:

• Sex Abuse - Sufficiency of Evidence of Penetration (Plain Error)
• Sex Abuse - Expert Diagnosis of Abuse w/o Physical Evidence (Plain Error)
• Civil Commitment - Sufficiency of Evidence of Risk of Harm
• Dependency: Sufficiency of Evidence for Judgment of Adoption)
• Failure to Report Accident- Mens Rea as to Triggering Injury

Today's COA offerings are relatively light on actual criminal law. They involve another Southard error, both a dependency and a commitment case, and one DMV license revocation for failure to report.

Sex Abuse: Sufficiency of Evidence of Penetration (Plain Error)

At defendant's trial for sex abuse, the alleged victim (CM) "testified that defendant penetrated 'in the lips' of her 'private'-but she was never asked precisely what she meant by her 'private.' She further testified that defendant did not penetrate 'all the way inside.'" In addition, the state offered testimony from the attending physician that "[t]he physician touched CM's labia and asked if defendant's fingers had been 'deeper inside' and CM responded that they had. The physician asked CM if defendant's fingers had been 'up inside her private part,' and CM responded that they had not. The physician opined that CM had been touched inside the labia but not inside the vagina."

On appeal, defendant argues that the trial court erred in failing, sua sponte, to acquit him because there was not evidence to establish penetration of the vagina. The COA, reviewing for plain error, assumes arguendo that ORS 163.411 requires penetration of the vagina rather than the labia. Nevertheless, the court concludes that "it would be sheer speculation to assume that, if the physician had been asked whether defendant's fingers could have penetrated slightly beyond CM's labia into her vagina, she would have said 'no.'" State v. Gonzalez

Sex Abuse: Expert Diagnosis of Abuse w/o Physical Evidence (Plain Error)

OK, the COA is serious about Southard. In reversing as plain error, the COA places heavy emphasis on the impact of such testimony where the occurrence and/or nature of physical contact is at issue even where all of the alleged victims testified concerning the abusive contact. In short, the COA concludes that, in light of defendant's contravention of the victim testimony, "we do not agree with the state that the bolstering effect of the expert testimony was 'insignificant' in this case." Reversed and remanded. State v. Gonzalez

Civil Commitment: Sufficiency of Evidence of Risk of Harm

The COA concludes that proof that petitioner hit a shovel against a door three and a half years prior to the hearing, pushed her husband a couple of times, and drove her car into a brick planter outside her husband's home was insufficient to establish a risk of harm to herself or others. This conclusion stems, in large part, from the fact that "there was no testimony about how her condition at the time of the hearing related to her prior acts or how it formed the basis for a prediction of future dangerousness." Reversed. State v. D.A.H.

Dependency: Sufficiency of Evidence for Judgment of Adoption

The mother first argues that the juvenile court violated ORS 419B.476(5)(a) by failing to include in the judgment for adoption a brief description of the efforts made by DHS to reunify the mother and child. As a result, the mother argues that the judgment is insufficient as a matter of law. The COA rejects this claim, concluding that the juvenile court satisfied the statutory requirement by adopting DHS's court report "as the Court's written findings" because that court report was a sufficiently "brief" account of the required information.

Second, "the mother contends that the juvenile court erred in its determination that there was no reason, under ORS 419B.498(2), to defer filing a petition to terminate her parental rights." According to the mother, the fact that the child had been permanently placed in the adoptive care of her grandmother required the application of the exception for permanent care in § 419B.498(2)(a). The COA rejects this argument as well, concluding that this exception "refers to a permanent placement with a relative other than an adoption." Affirmed. D.H.S. v. H.R.

Failure to Report Accident: Mens Rea as to Triggering Injury

Petitioner was involved in an accident that did not appear to involve any injuries at the time, and subsequently had her license revoked for failing to report an accident that involved an injury. In challenging the revocation, petitioner argues that ORS 811.725(1) requires a culpable mental state with regards to the triggering injury. The COA disagrees. Affirmed. Hazen v. D.M.V.