IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent v. THOMAS MICHAEL KELLY, Defendant- Appellant Clatsop County Circuit Court No. 061238 Court of Appeals # A139810 APPELLANT'S BRIEF Appeal from the Judgment of Conviction and Sentencing, by Cindee Matyas, Circuit Court Judge of Clatsop County, Oregon, Entered July 26, 2008 Raymond S. Tindell, OSB 87089 Attorney at Law 1122 NE 122nd Ave Ste B211 \ Portland, OR 97230 (503)257-9268 Attorney for defendant-appellant Jerome Lidz, OSB 77263 Solicitor' General 1162 Court Street NE Salem, OR 97301 (503)378-4402 Attorney for Plaintiff-Respondent 8/09 , IN THE COURT OF APPEjL\LS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v, THOMAS MICHAEl_ KELLY, Defendant-Appellant. Clatsop County Circuit Court 061238 A'i39810 NOTICE The opening brief was: Filed on: August 25, 2009 Next event due: Answerinq Brief on October 13, 2009. Questions regarding this notice should be directed to : Brief Clerk (503) 986-5555 Date: 08/27/2009 ~c: Raymond S Tindell Jerome Lidz rp NOTICE REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section, Supreme Court Buiiding, 1163 State Street, Salem, OR 97301-2563 " Page 1 of 1 IV. State V Wright, 97 Or App 401, 776 P2d 1294, rev den, 308 Or 593 (1989) 17,23 White V Illinois, 502 US 346 (1992) 12 STATUTES ORS 10.095(6) 21 ORS 40.030 (OEC 104) 12 ORS 138.040 1 ORS 138.053 1 CONSTITUTIONS US Constitution, Amendment 5,6,14 12,15,19,26 Oregon Constitution, Article 1, Sections 9, 10, 11, 13, 20 12,15,19,26 " 111 TABLE OF CASES AND AUTHORITIES CASES Page Idaho v Wright, 497 US 805 (1990) 12 Rock v Arkansas, 483 US 44 (1987) 12 State v Green, 271 Or 153,531 P2d 245 (1975) 13 Leland v State of Oregon, 343 US 790 (1952) 21 State v Martin, _ Or App _ (Feb 25, 2009) 17,23 State v Metcalfe, 172 Or App 501, 19 P3d 374 (2001) ..... 20 State v Nab, 245 Or 454,421 P2d 388 (1967) 17 State v Parker, 119 Or App 105,107, rev den 317 Or 584 (1993) 11,13,16 State v Rose, 311 Or 274,810 P2d 839 (1991) 20,25 State v Sanchez-Cruz, 177 Or App 332, 33 P3d 1037 (2001), rev den, 333 Or 463 (2002) 17,23 State v Snuggerud, 153 Or 100, (1998) 12 '. State v Wintzingerode, 9 Or 153 (1881) 13 " APPELLANT'S BRIEF TABLE OF CONTENTS Page INDEX OF AUTHORITIES iii-iv STATEMENT OF THE CASE Nature of the Action 1 Judgment to be reviewed 1 Statutory Basis of Appellate Jurisdiction 1-2 Questions Presented on Appeal 2-3 Summary of Argument 3-6 Summary of Facts 6-11 ASSIGNMENT OF ERROR #1. 11-12 The Court erred in denying defendant's Motion to Exclude Testimony of Complainant where the alleged victim has a history of mental illnesses, and making false claims including prior false claim. of physical abuse by her father, has a problem with lying, improper questioning occurred by Girlfriend of father Annie Reeves repeatedly after receiving a "No" answer to question of sex abuse, and improper questioning occurred by police and at the Lighthouse Assessment Center such that alleged victim's memory is so tainted that her testimony would be unreliable. Argument for Assignment of Error #1 12-16 ASSIGNMENT OF ERROR #2 16 The Court erred in denying Defendant's Motion to Limit or Exclude expert Testimony where said expert makes a diagnosis of "sexual abuse" even though not considered was alleged victim's history of lying, mental illness, I 1 APPELLANT'S BRlEF TABLE OF CONTENTS Page INDEX OF AUTHORITIES iii-iv STATEMENT OF THE CASE Nature of the Action 1 Judgment to be reviewed 1 Statutory Basis of Appellate Jurisdiction 1- 2 Questions Presented on Appeal 2-3 Summary of Argument 3-6 Summary of Facts 6-11 ASSIGNMENT OF ERROR #1. 11-12 The Court erred in denying defendant's Motion to Exclude Testimony of Complainant where the alleged victim has a history of mental illnesses, and making false claims including prior false claim. of physical abuse by her father, has a problem with lying, improper questioning occurred by Girlfriend of father Annie Reeves repeatedly after receiving a "No" answer to question of sex abuse, and improper questioning occurred by police and at the Lighthouse Assessment Center such that alleged victim's memory is so tainted that her testimony would be unreliable. Argument for Assignment of Error #1 12-16 ASSIGNMENT OF ERROR #2 16 The Court erred in denying Defendant's Motion to Limit or Exclude expert Testimony where said expert makes a diagnosis of "sexual abuse" even though not considered was alleged victim's history of lying, mental illness, I I' _ ~ 11. making prior false claims against her father for abuse which was not known to the expert, and the expert did not have nor considered prior extensive psychiatric and medical records regarding alleged victim's condition in making the diagnosis of "sex abuse" and said diagnosis is therefore merely an illegal comment on the credibility of another witness. Argument/or Assignment 0/ Error #2 17-20 ASSIGNMENT OF ERROR #3 19 The Court erred in denying defendant's Motion for Judgment of Acquittal where no evidence can place any dates on when these alleged sex offenses occurred, the "expert" evidence is tainted with incomplete records and is based upon findings of "sex abuse" wherein not considered was the alleged victim's prior extensive psychiatric and medical records, mental illnesses, hallucinations and conditions, prior false allegations, and the minimal DNA evidence merely puts defendant's DNA in the basement of defendant's residence and cannot account for the time nor manner of placement which has no connection to the alleged victim. Argument/or Assignment of Error #3 20-27 CONCLUSION 27 Excerpt of Record Er-1 Judgment and Conviction of Sentence Er-2 to Er-32 Court Rulings on Motion to Limit or Exclude Expert Testimony and Motion to Exclude Complaining Witness Er-33 to Er-37 Order Regarding Demurrers/Motions Er-38 1. STATEMENT OF THE CASE NATURE OF THE ACTION This case involves the appeal of conviction of defendant for Sodomy 1 x 12, Sex Abuse 1 x 12, after Jury Trial on May 20,21,22,23, 27, and 28, 2008 and Sentencing on July 28, 2008, all before Circuit Court Judge Cindee Matyas, Clatsop County Circuit Court, and Judgment of Conviction and Sentence entered by the Clerk of the Court on July 28, 2008. JUDGMENT TO BE REVIEWED The judgment to be reviewed is the Judgment of Conviction and Sentence, entered in this case on July 28, 2008 by Clatsop County Circuit Court Judge Cindee Matyas, and includes review of pre-trial Motions to Exclude Testimony of Complainant and Limit or Exclude Testimony of Expert Witness, which were heard before Clatsop County Circuit Court Judge Paula Brownhill on October 3,2007. STATUTORY BASIS OF APPELLATE JURISDICTION Appellate Jurisdiction is conferred by ORS 138.040, 138.053. The Notice of Appeal was timely filed on 8/27/08, and the Final Judgment I 2. in this case is dated July 28, 2008 , and the effective date of the conviction is the court entered date of July 28, 2008. QUESTIONS PRESENTED ON APPEAL Question # 1: Did the Court err in denying defendant's Motion to Exclude Testimony of Complainant where the alleged victim has a history of mental illnesses, and making false claims including prior false claim of physical abuse by her father, has a problem with lying, improper questioning occurred by girlfriend of father Annie Reeves repeatedly after receiving a "No" answer to question of sex abuse, and improper questioning occurred by police and at the Lighthouse Assessment Center such that alleged victim's memory is so tainted that her testimony would be unreliable? Question #2: Did the Court err in denying Defendant's Motion to Limit or Exclude expert Testimony where said expert makes a diagnosis of I "sexual abuse" even though not considered was alleged victim's history of lying, mental illness, making prior false claims against her father for abuse which was not known to the expert, and the expert did not have nor considered prior extensive psychiatric and medical records regarding alleged victim's condition in making the diagnosis of "sex abuse" and said 3. diagnosis is therefore merely an illegal comment on the credibility of another witness? Question #3: Did the Court err in denying defendant's Motion for Judgment of Acquittal where no evidence can place any dates on when these alleged sex offenses occurred, the "expert" evidence is tainted with incomplete records and is based upon findings of "sex abuse" wherein not considered was the alleged victim's prior extensive psychiatric and medical records, mental illnesses, hallucinations and conditions, prior false allegations, and the minimal DNA evidence merely puts defendant's DNA in the basement of defendant's residence and cannot account for the time nor manner of placement which has no connection to the alleged victim? SUMMARY OF ARGUMENT The Court should have granted the defendant's Motion to Exclude Testimony of Complainant. The alleged victim's memory is so tainted as a result of improper questioning that her testimony is completely unreliable. The complainant has a history of lying, making false allegations against her father for physical abuse, and a history of various mental illnesses including Autism Spectrum Disorder, Attention Deficit Disorder and Opposition 4. Defiant Disorder. In addition, prior to the alleged victim ever showing up before a Doctor for evaluation of sexual abuse, she had spoken to and was questioned extensively by her father's Girlfriend Annie Reeves, and despite saying that no sex abuse had occurred, the step mother continued her relentless questioning. Annie Reeves admittedly had been victim of sex abuse herself and changed in attitude towards the alleged victim in a very warm way when finally disclosures were made after repeated denials. After the questioning, Ms. Reeves called a Clatsop County Sheriff that came over and was not properly trained in the questioning and evaluation of sex abuse and further questioned alleged victim, with Ms. Reeves present. All this occurred before the alleged victim ever made her way to the Lighthouse Assessment Center for further evaluation. Complainant's testimony under all these circumstances should have been excluded from the trial. The Court should have granted the defendant's Motion to Limit or Exclude expert testimony in this case. As to the issue of a medical diagnosis, the prosecution called Dr. Roy Little who was present at the Lighthouse Assessment Center when the alleged victim gave her statements about what happened that form the basis of the allegations herein. 5. However, Dr. Little did not consider prior histories of this alleged victim for lying, making false allegations of physical abuse against her father, and had numerous mental diagnosis previously including opposition defiant disorder, and prior diagnosis as suffering from Asperger's Syndrome and due to her behavior had been removed from 2 daycare facilities in 2002. Actual diagnosis is required to establish relevance and the admissibility of such scientific evidence. Dr. Little is not competent to address the validity of the underlying scientific basis of the evidence since it is merely derived from f statements so tainted in nature as to not be credible. Dr. Little's diagnosis of "sex abuse" is merely a comment on the credibility of the alleged victim in this case. It was error not to exclude Dr. Little as a witness because it was error to allow Dr. Little to make diagnosis of "sex abuse", and since a diagnosis is required, all of the expert testimony should have been excluded. , It was error for the Court to deny Defendant's Motion for Judgment of Acquittal. All that the DNA evidence found at the residence of defendant does is place defendant at his own residence. The evidence brought by the prosecution fails to put a time in which the collected DNA evidence was deposited at the point of collection, and fails to establish how the DNA 6. evidence was deposited. With no time of placement nor manner of placement being definitive, and being mere speculation, the evidence does not go in any way towards any connection at all to this case and should not have been considered. In addition, the alleged victim's statements became so tainted as the result of improper questioning rendering her testimony so unreliable, and the illegal diagnosis of "sex abuse" by the examining expert and improper comment on credibility of the alleged victim, require the trial judge to grant the Motion for Judgment of Acquittal and this case should have been dismissed prior to submitting this case to the jury for deliberations. SUMMARY OF FACTS The alleged victim was 10 years old when this case went to trial on May 20,2008. Tr., P 331, L 1-7. These allegations of various crimes ofa sexual nature allegedly occurred between 2004 and 2006. Judgment, Exhibit A, Er-30 - Er-31. This alleged victim early in her life lived with her natural mother under circumstances involving abuse by biological mother, including neglect and abandonment in her household in Vancouver, Washington. Tr., P 418-419. As a result of the alleged victim's tumultuous -, 7. early life, she went and moved in with her natural father Tom Kelly and his girlfriend Annie Reeves in approximately 2001. Tr., P 417, L 16-23, P 384, L 1-8. The alleged victim throughout her testimony incorrectly refers to her father's Girlfriend Annie Reeves as her "mother" and this is allowed repeatedly and wrongfully to occur. Tr., P 331, L 18-19. At some point after living with her father and Annie Reeves she began to visit her grandfather, the defendant herein and stayed overnights, and when visiting stayed there with her brother Ireland. Tr., P 333, L 14-16, P 387, L 2-23. The alleged victim testified that her and defendant would spend a lot of time in the basement of his residence, and also that sexual abuse activity would occur in defendant's bedroom, Tr., P 334, L 10-14, Tr., P 344,-345. However, later the alleged victim testifies that no sex abuse or alleged conduct occurred at all in defendant's bedroom. Tr., P 371, L 10-12. Even prior to the allegations being made in August 2003 there was a psychiatric evaluation reflecting that the alleged victim had problems with fabrication and was given Ritalin and other medications. (pre-trial Hearing) Tr. P 108, P 18-20. The alleged victim describes alleged incidents of sexual abuse involving oral sex and sexual abuse at the defendant's residence, Tr., P 334- 8. 345. The alleged victim cannot remember when this all occurred and started. Tr., P 357, L 6-10, Tr., P 334-345. The alleged victim indicates she has trouble with telling lies. Tr., P 348, L 15-25. Annie Reeves, girlfriend of alleged victim's father, also testified that the alleged victim has trouble with telling lies, Tr., P 392-393. The alleged victim admits that she previously lied about physical abuse that she had told a teacher her natural father had hit her and caused a tear in her shirt and a large bruise next to it. Tr., P 349, L 17-25. Father's girlfriend Annie Reeves testified also to the lies that the alleged victim made up about her father physically abusing her. Tr., P 394. The alleged victim also testified she talked with her "mother" (alleged mother but actually non-married girlfriend of father) about her testimony many times prior to the trial. Tr., P 352, L 9-25. The suspicions of Annie Reeves of sex abuse were behavior problems, self blame, and inability to focus, despite Annie Reeves having no training in interviewing children who make claims of abuse. Tr., P 415, L 35-25, Tr., P 408, L 23-25, P 409-L 1-5. Annie Reeves testified that in approximately January 2004 the. alleged victim told Ms. Reeves that she had heard voices in different colors, 9. and they came from the markers that she had in her hands and was being treated by Clatsop Behavioral Health Care Clinic and was prescribed medications. Tr., P 434-435. After many times of questioning and denial the alleged victim decides to tell her Annie Reeves because Ms. Reeves was being nice and not angry, that the Ms. Reeves started telling the alleged victim about the law and that Ms. Reeve's step father had sexually abused Ms. Reeves when she was 12 or 13 years old. Tr., P 360, L 1-25, P 356, L 14-25, P 357, L 1-13. Tr., P 446, L 14-25. Annie Reeves testifies that she had her own suspicions that sexual abuse was occurring and within a 15-20 minute time frame asked the alleged victim 3 times if anybody was doing anything to her and received a "no" each time. Jr. P 398-401. Only after serious coaching by Ms. Reeves, the alleged victim finally makes statements about alleged sexual misconduct by defendant. Tr., P 398-401. Despite questioning 3 times about sex abuse by Ms. Reeves, the alleged victim said . "no" 3 different times, and Ms. Reeves continued to question her, and the alleged victim finally said yes, it had happened to her. Tr., P 358, L 1-11. The alleged victim never told anyone else prior to telling Ms. Reeves about 10. the sexual abuse, including her brother Ireland, no school friends, no teachers, not even the Clatsop Behavioral Health Care Center while seeing counselors there. Tr., P 364, L 1-9. After the disclosure was made Ms. Reeves called a police officer to the residence and Officer Hoover was questioning the alleged victim with Ms. Reeves present and participated in the questioning. Tr., P 368-369, Tr., P 467, L 14-25., Tr., P 468, L 20-24. Officer Hoover has no specialized training in interviewing children who claim sex abuse. Tr., P 473-474. Annie Reeves fails to mention to Officer Hoover that the alleged victim had said "no" 3 times, or that the alleged victim had made false allegations of physical abuse against her father in the past. Tr., P 476, L 17-22, P 477 L 8-14. The alleged victim has several diagnosis of mental illnesses, including autism, obsessive compulsive disorder, ADHD, and Oppositional Defiant Disorder. Tr., P 290, L 24, 25, P 391, L 1-10. After all this has occurred the alleged victim was referred to the Lighthouse Assessment Center and was seen by Dr. Roy Little on June 1, 2006 and a diagnosis is made of sexual abuse. Tr., P 234, L 22-25, Tr., P 241, L 14-16. Although aware that the alleged victim had been seen beginning in 2002 at the Clatsop Behaviour Health Care Clinic, Dr. Little 11. did not have any records from them to review. Tr., P 242-L 14-25, P 243, L 1-6. Father and Annie Reves told Dr. Little that the alleged victim had a history of lying but indicated it was not a major factor. Tr., P 243, L 9-16. Dr. Little was not aware that the alleged victim had made a false allegation of physical abuse in making his diagnosis, and that this would have certainly factored into the assessment had it been known. Tr., P 244, L 11- 25. Dr. Little was likewise unaware that alleged victim was suffering from Asperger's disease, and not aware that because of her defiant and oppositional behavior, alleged victim had been removed from 2 daycare facilities in 2002., Tr., P 245. Dr. Little was also not aware that in January 2004 Clatsop Behavioral Health Care Center reports the alleged victim was hearing voices identified as colors and the voices told her to do good and bad things. Tr., P 246, L 6-11. ASSIGNMENT OF ERROR #1 The Court erred in denying defendant's Motion to Exclude Testimony of Complainant where the alleged victim has a history of mental illnesses, and making false claims including prior false claim of physical abuse by her father, has a problem with lying, improper questioning occurred by Girlfriend of father Annie Reeves repeatedly after receiving a "No" answer 12. to question of sex abuse, and improper questioning occurred by police and at the Lighthouse Assessment Center such that alleged victim's memory is so tainted that her testimony would be unreliable ARGUMENT FOR ASSIGNMENT OF ERROR #1 a) Preservation of Error: Defendant timely filed a pre-trial Motion to Exclude Testimony of Complainant on or about May 8, 2007. A Hearing was had on the issue on October 3, 2007 and after considering the arguments of defense counsel and the prosecution, the Court denied the Motion by Opinion letter dated November 6, 2007, Er-36. b) Standard of Review: The Court of Appeals reviews the ruling for abuse of discretion. State v Parker, 119 Or App 105,107, rev den 317 Or 584 (1993). c) Argument: The Trial Court of course has a duty to provide the defendant with traditional notions of Due Process and a fair trial pursuant to Oregon Constitution, Article 1, Sections 9, 10, 11, 13,20, and the US Constitution, Amendments 5, 6 14. Inherent in this process is a pre-trial determination as the issue was raised herein of the competency of a witness intended to be called by the Prosecution. OEC 104 CORS 40.030) states that preliminary questions concerning the qualification of a person to be a witness shall be determined by the court. Also it is inherent upon the trial Court to determine reliability of the evidence as what it is purported to be. The trial 13. court has the responsibility of determining the pre-trial reliability of certain statements made by a witness. Rock v Arkansas, 483 US 44 (1987) . . Suggestive statements elicited by suggestive or coercive questioning are inadmissible. White v Illinois 502 US 346 (1992), Idaho v Wright, 497 US 805 (1990). OEe 104(1) provides that the court is not bound by the rules of evidence, except the rules of privilege, in making its determination. State v Snuggerud, 153 Or 100 (1998). The defendant is seeking herein a determination of reliability of the alleged victim in this case. Although the court has wide discretion in these matters, the court of appeals will review the matter for abuse of discretion. State v Parker, 119 Or App 105, 107, rev den 317 Or 584 (1993). Herein, there is such an abuse of discretion given all the facts and circumstances of this case. Evidence law has long provided for excluding certain evidence as a class when its questionable reliability vitiates the value of its possible truthfulness in the particular case, apart from any question of constitutional law. One familiar example is the exclusion of coerced confessions; others are the exclusion of evidence obtained by polygraph tests, hypnosis, or "truth drugs." See State v. Wintzingerode, 9 Or. 153 14. (1881 ) (confessions obtained by promises or by threats); State v. Green, 271 Or. 153, 164-171,531 P2d 245 (1975) (polygraph evidence). It is clear then that the trial court must examine the witness to determine if such a person can be called to testify at trial. Here, because of the facts and circumstances of this case, it was error for the court to deny defense Motion to exclude the alleged victim from testifying at trial, because of unreliability issues. Even at the Pre-trial Hearing on 10/3/07, Dr. Little testified at the Hearing that the child herein has a documented history of lying, and various mental illnesses including history of attention deficit disorder, oppositional defiant disorder, autistic spectrum disorder. Tr, P46, Tr., P 59, L 1-2. There were issues involved in contamination of this child's testimony because prior to being seen at Lighthouse Assessment Center, even Dr. Little admits it is possible that the alleged victim is simply being consistent with what she had told other people, and that coaching was possible. Tr., P 61, L 9-25. Even prior to the allegations being made in August 2003 there was a psychiatric evaluation reflecting that the alleged victim had problems with fabrication 15. and was given Ritalin and other medications. (pre-trial Hearing) Tr. P 108, P 18-20. Also, interviewing a child, particularly one under 10, suspected of being a victim of abuse, is very delicate task, requiring specialized training, that a layperson cannot do, and since Annie Reeves herself was abused and was not a skilled interviewer, that it is highly likely that she would bring both interviewer bias and lack of skill to her questioning of the alleged victim. Tr., P 56, L 21-25, P 57, L 1-24. Here, we have on May 27,2006 an interview of the child by Annie Reeves, with Officer Hoover present. This was made clear in the Motion to Exclude testimony of Complainant as alleged in the Motion, that the initial interviewer was Annie Reeves, talking with the alleged victim about Reeves' own abuse as a child and brought her own suspicious to her questioning of the child. After denying any sex abuse and further encouragement and nice warmth by Ms. Reeves 3 times, the child finally makes an admission. Ms. Reeves is neither trained as an , interviewer nor did she follow any protocols such as open-ended questioning, or providing an opportunity for the child to offer innocent possibilities. The officer conducting the interview at Reeves' residence was likewise unqualified in the issues of examination of a child purporting to be 16. a victim of sexual abuse. Also, Ms. Reeves was present in the questioning by Officer Hoover. On June 1, 2006, the child was interviewed an additional time during an examination at the Lighthouse and evaluated by Dr. Little. There had been prior lies and allegations about physical abuse by the child's father. Tr., P 67, L 1-4. The physical exam by Dr. Little was completely normal. There were no physical signs of abuse. Tr., P 48, L 4-6. Based upon all these facts and circumstances, it is a violation of fundamental fairness, due process, and rights to fair trial not to exclude this child from testifying as to unreliability of the witness, pursuant to Oregon Constitution, Article 1, Sections 9, 10, 11, 13, 20, US Constitution, Amendments 5, 6, 20. ASSIGNMENT OF ERROR #2 The Court erred in denying Defendant's Motion to Limit or Exclude expert Testimony where said expert makes a diagnosis of "sexual abuse" even though not considered was alleged victim's history of lying, mental illness, making prior false claims against her father for abuse which was not known to the expert, and the expert did not have nor considered prior extensive psychiatric and medical records regarding alleged victim's condition in making the diagnosis of "sex abuse" and said diagnosis is therefore merely an illegal comment on the credibility of another witness. . \ 17. ARGUMENT FOR ASSIGNMENT OF ERROR #2 a) Preservation of Error: Defendant timely filed a pre-trial Motion to Exclude Testimony of Complainant on or about May 8, 2007. A Hearing was had on the issue on October 3, 2007 , witness Dr. Little provided testimony at the Hearing, and after considering testimony and arguments of defense counsel and the prosecution, the Court denied the Motion by Opinion letter dated November 6, 2007, Er-33 b) Standard of Review: The Court of Appeals reviews the ruling for abuse of discretion. State v Parker, 119 Or App 105, 107, rev den 317 Or 584 (1993). c) Argument: A diagnosis of sexual abuse is scientific or medical evidence for the purpose ofOEC 412(2)(b)(B). State v. Sanchez-Cruz, 177 Or App 332, 337- 41,33 P3d 1.037 (2001), rev den, 333 Or 463 (2002). A diagnosis of sexual abuse is scientific evidence subject to the foundational requirements for such evidence. State v. Nab, 245. Or 454,421 P2d 388 (1967), and State v. Wright, 97 Or App 401,776 P2d 1294, rev den, 308 Or 593 (1989). Therefore, an actual diagnosis of sex abuse, is required to establish relevance and the admissibility of such scientific evidence. State v Martin, _Or App_(Feb 25, 2009). When Dr. Little is making a diagnosis of sexual abuse herein he is relying upon the known history as related by alleged 18. victim's father and his girlfriend Annie Reeves (incorrectly calling them the "parents" although Annie Reeves never married alleged victim's father) and his medical evaluation, which had no physical findings, and statements by the alleged victim herein. Here, Dr. Little was not at all apprised of the extent to which the alleged victim would lie, although her father and Annie Reeves reported lying and stealing. Tr., P 58, L 25, P 59, L 1-2. Dr. Little did not have the information at the time of the evaluation that the alleged victim made false allegations against her father for physical abuse. Tr., P 67, L 1-4. According to Dr. Little at the pre-trial Hearing, prior psychiatric records, prior medical evaluations were not part of the file at the time of the evaluation. Tr., P 67, L 17-20. The prosecution sought to call Dr. Little as an expert witness from Lighthouse, and the evaluation. The problem with his testimony is that Dr. Little makes a diagnosis of "sexual abuse", even though there is absolutely no physical evidence of sexual abuse at all in this case based on his examination of the alleged victim. There were issues involved in contamination of this child's testimony because of the prior questioning by Ms. Reeves and Officer Hoover Tr., P 61, L9-25. It was clear Dr. Little did not realize that the stepmother had described her own I 19. abuse and circumstances in which it occurred, and Dr. Little agreed that would possibly influence a child 8 years old at the time of the questioning. Tr., P 54, L 17-25. Dr. Little also was unaware, but agreed that it was possible that if Annie Reeves was an active participant in the law enforcement interview that would have an impact on the child's recitation of what she remembers particularly with respect to what she's been told by the stepmother about her own abuse. Tr., P 55, L 14-21. Based upon these facts and circumstances, the Court improperly allowed Dr. Little to testify at trial and to make a "diagnosis" of sex abuse. The Court erred by not excluding Dr. Little's testimony entirely. A diagnosis would be required to establish Dr. Little as an expert in this case, and such a diagnosis should not be allowed for all the reasons established herein. Therefore Dr. Little had no "scientific testimony" to offer the jury in this case and should have been excluded as a witness. In the alternative, it was abuse of discretion to , allow Dr. Little to testify as to a "diagnosis" of sex abuse, since based upon the facts and circumstances herein such a "diagnosis" is merely an impermissable and inadmissable comment upon the credibility of another ...... witness. Because of violation of these principles, defendant was denied 20. fundamental fairness, due process, and rights to fair trial pursuant to Oregon Constitution, Article 1, Sections 9,10,11,13,20, US Constitution, Amendments 5, 6, 14. ASSIGNMENT OF ERROR #3 The Court erred in denying defendant's Motion for Judgment of Acquittal where no evidence can place any dates on when these alleged sex offenses occurred, the "expert" evidence is tainted with incomplete records and is based upon findings of "sex abuse" wherein not considered was the alleged victim's prior extensive psychiatric and medical records, mental illnesses, hallucinations and conditions, prior false allegations, and the minimal DNA evidence merely puts defendant's DNA in the basement of defendant's residence and cannot account for the time nor manner of placement which has no connection to the alleged victim. ARGUMENT FOR ASSIGNMENT OF ERROR #3 a) Preservation of Error: After the conclusion of the State's Case, defendant argued a Motion for Judgment of Acquittal. After the Court heard argument from both defense counsel and prosecution, the Court denied the Motion. Tr., P 577, L 1-5. b) Standard of Review: The standard of review is in reviewing the denial of a motion for a judgment of acquittal, the Court shalt consider the evidence in the light most favorable to the state, including all reasonable inferences that can be drawn from that evidence, and determine whether any rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt. State v. Rose, 311 Or. 274,281,810 P2d 839 (1991). - 21. c) Argument: It is error for the Court to have denied this Motion for Judgment of Acquittal. In determining whether a trial court correctly denied a criminal defendant's motion for a judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether any rational trier of fact, accepting reasonable inferences and making reasonable credibility choices, could have found the essential elements of the offence. State v. Metcalfe, 172 Or. App. 501,503, 19 P3d 374 (2001). In reviewing the denial of a motion for a judgment of acquittal, we consider the evidence in the light most favorable to the state, including all reasonable inferences that can be drawn from that evidence, and determine whether any rational trier of fact could have found that the essential elements if the crime had been proved beyond a reasonable doubt. State v. Rose, 311 Or. 274, 281, 810 P2d 839 (1991). Fundamental to our system of criminal justice is that the burden of proof in any criminal case is on the prosecution to prove defendant's guilt beyond a reasonable doubt and does not shift, but rests upon the state throughout the trial. Leland v State of Oregon, 343 US 790 (1952). In addition, ORS 10.095(6) requires proof beyond a reasonable 22. doubt on each material element of the offense as required by the Due Process maintained in the determination of review of a Motion for Judgment of Acquittal. Here, how is it possible for the court to deny this Motion for Judgment of Acquittal? There simply is insufficient evidence based upon the Jury trial in this case, after the State rested its case, to submit this matter to the trier of fact. The State failed to present evidence showing defendant in any way committed any crimes against this alleged victim of a sexual nature. There were several categories of evidence introduced at this trial including the testimony of the alleged victim, and several instances of "scientific evidence" and diagnosis. This so-called "scientific evidence" included DNA testing and analysis. Forensic Scientist Dale Purcell testified at the trial that the samples collected at the residence of defendant show that at some time in all of history of man, that a minimal sample of sperm or semen stain belonging to defendant existed on a chair cushion at defendant's own residence and only 1 spermatozoa head detected. States Exhibit 3, Tr., P 308-P 17-20. Mr. Purcell testifies: • 23. "there's really no test available that will age a stain. So I have no idea of when it was deposited based off of that age. Now, there are some factors that will affect whether a stain is going to persist over time, but that depends on the humidity and things like. But they've also reported in the literature that stains have been identified in excess of 25 years. So there's really no way to know at what point that was deposited. All that we know is that semen was deposited there." Tr., P 307, L 7-17, emphasis added. There is no precise evidence as to how long defendant lived in the residence wherein these alleged crimes occurred and therefore no evidence to indicate when, in what manner, or how long the sperm sample had been deposited there. Certainly a stain 25 years old would be well earlier in time than any of the alleged incidents herein. There is no connection of this DNA evidence and the alleged crimes as to time, scope and manner. The DNA evidence merely proves that sometime in the last 25 years or longer, the defendant had an ejaculation in his own residence, certainly not uncommon an event for males of the human species in their own homes. None of this DNA evidence could have been applied to convict defendant of any sexual crimes beyond a reasonable doubt and it was error based upon the DNA evidence, even in the light most favorable to the State, to submit this case to the jury. r 24. The other so called "scientific evidence" produced by the State was from Dr. Little. As has been established herein, Dr. Little based his diagnosis of "sex abuse" on the interview with the alleged victim, the history as stated by her father and his girlfriend Annie Reeves, and no physical findings of sexual abuse. As was stated before, for there to be a scientific expert on this issue, the findings are of a medical nature, and there must therefore be a diagnosis or there can be no expert witness. State v. Sanchez-Cruz, 177 Or App 332, 337-41, 33 P3d 1037 (2001), rev den, 333 Or 463 (2002), State v. Wright, 97 Or App 401, 776 P2d 1294, rev den, 308 Or 593 (1989), State v Martin, _ Or App _ (Feb 25, 2009). Here, although aware that the alleged victim had been seen beginning in 2002 at the Clatsop Behavior Health Care Clinic, Dr. Little did not have any records from them to review. Tr., P 242-L 14-25, P 243, L 1-6. Father and Annie Reeves told Dr. Little that the alleged victim had a history of lying but indicated it was not a major factor. Tr., P 243, L 9-16. Dr. Little was not aware that the alleged victim had made a false allegation of physical abuse in making his diagnosis, and that this would have certainly factored into the • assessment had it been known. Tr., P 244, L 11-25. Dr. Little was likewise 25. unaware that alleged victim was suffering from Asperger's disease, and not aware that because of her defiant and oppositional behavior, alleged victim had been removed from 2 daycare facilities in 2002., Tr., P 245. Dr. Little was also not aware that in January 2004 Clatsop Behavioral Health Care Center reports the alleged victim was hearing voices identified as colors and the voices told her to do good and bad things. Tr., P 246, L 6-11. There were issues involved in contamination of this child's testimony because of the prior questioning by Ms. Reeves and Officer Hoover. It was clear Dr. Little did not realize that the Annie Reeves had described her own abuse and circumstances in which it occurred, and Dr. Little agreed that would possibly influence a child 8 years old at the time of the questioning. Dr. Little also was unaware, but agreed that it was possible that if Annie Reeves was an active participant in the law enforcement interview of Chanel, that would have an impact on the child's recitation of what she remembers .particularly with respect to what she's been told by Annie Reeves about her own abuse. It is clear therefore that the Court could not base Dr. Little's "scientific diagnosis" of "sex abuse" as a reason to submit this case to the jury sincel his testimony should have been excluded, or at a minimum that 26. the diagnosis should have been excluded as part of Dr. Little's testimony. Dr. Little was considered the State's "expert" witness. This again provides no basis to submit this case to the jury and the Motion for Judgment of Acquittal should have been granted. Remaining for consideration regarding the Motion for Judgment of Acquittal is the testimony of the alleged victim. Because of the history of lying, the mental illness of the alleged victim, the false accusation against her father for physical abuse in the past, the hallucinations about hearing voices in colors and telling her to do good and bad things, the contamination of Annie Reeves and Officer Hoover, Annie Reeves' own sex abuse in her past and encouragement of the alleged victim to state her own abuse even after denying it 3 times, the lack of dates when all this abuse allegedly occurred and the number of occurrences other than "21" being 1 more than all the fingers and toes of this child, this alleged victim should not have been allowed upon the witness stand to give testimony. Even prior to the allegations being made in August 2003 there was a psychiatric evaluation reflecting that the alleged victim had problems with fabrication • and was given Ritalin and other medications. (pre-trial Hearing) Tr. P 108, 27. P 18-20. Although normally credibility of a witness is not subject of a Motion for Judgment of Acquittal the standard as set forth in State v. Rose, 311 Or. 274, 281,810 P2d 839 (1991), still applies. If there was ever such a case where denial of the Motion for Judgment of Acquittal constitutes abuse of discretion by the trial Court based upon credibility of this child witness, this is such a case. It was error to deny the Motion for Judgment of Acquittal and such error constitutes a denial of fundamental fairness, due process and rights to a fair trial as guaranteed by the Oregon Constitution, Article 1, Sections 9, 10, 11, 13,20, and US Constitution, Amendments 5, 6, 14. CONCLUSION Based on the point of error herein, and arguments in support thereon, this court should reverse the convictions of defendant in this Case. DATED this t~ay of August, 2009. -==:::;;r;Z> > Raymond Tindell, OSB 87089 Attorney for Defendant-appellant 1122 NEl122nd Ave Ste B211 Portland, OR 97230 (503)257-9268 Excerpt of Record Judgment and Conviction of Sentence................................................................................. Er-2 to Er-32 Court Rulings Opinion Letteron Motion to Limit or Exclude ExpertTestimony and Motion to Exclude Complaining Witness.............................................................. Er-33 to Er-37 Order Regarding DemurrerslMotions.................................... Er-38