State v. Ovendale

Physical evidence giving rise to a "sexual abuse" diagnosis avoids the proscription in Southard when its significance is of the sort that requires a complex factual determination by an expert rather than a lay person, it corroborates the type of abuse alleged, and the medical expert relies on the physical evidence in making the diagnosis.

Defendant appealed a conviction for first degree sodomy and sex-abuse. Defendant argued the trial court erred in admitting evidence that the victim was diagnosed with "sexual abuse" by the medical expert. Defendant relied on the Oregon Supreme Court's holding in Southard and claimed the diagnosis was inadmissible because it was not based on findings of physical injury to the victim's body. Southard excluded the admissibility of a "sexual abuse" diagnosis when the diagnosis was not supported by any physical evidence of abuse. Physical evidence giving rise to a "sexual abuse" diagnosis avoids the proscription in Southard when its significance is of the sort that requires a complex factual determination by an expert rather than a lay person, it corroborates the type of abuse alleged, and the medical expert relies on the physical evidence in making the diagnosis. The Court held the diagnosis was properly admitted under OEC 403 because it was based on the aforementioned factors and was not subject to the evidentiary standard proscribed in Southard. Affirmed.