FILED August 17, 2011 02:58 PM 

Appellate Court Records 

IN THE COURT OF APPEALS OF THE STATE OF OREGON 

STATE OF OREGON, Clatsop County Circuit 
Court No. 061238 
Plaintiff-Respondent, 

v. 
THOMAS MICHAEL KELLY, CAA139810 
Defendant-Appellant. 

RESPONDENT'S PETITION FOR RECONSIDERATION 

Appeal from the Judgment of the Circuit Court 
for Clatsop County 
Honorable CINDEE S. MATYAS, Judge 

RAYMOND S. TINDELL #870893 

Attorney at Law 
1122 NE 122nd Ave., Ste B211 
Portland, OR 97230 
Telephone: (503) 257-9268 
Email: raypdxlaw@gmail.com 

Attorney for Defendant-Appellant 

JOHN R. KROGER #077207 
Attorney General 
MARY H. WILLIAMS #911241 
Solicitor General 
KARLA H. FERRALL #992074 
Assistant Attorney General 

1162 Court St. NE 
Salem, Oregon 97301-4096 
Telephone: (503) 378-4402 
Email: karla.h.ferrall@doj.state.or.us 

Attorneys for Plaintiff-Respondent 

8/11 


IN THE COURT OF APPEALS OF THE STATE OF OREGON 


STATE OF OREGON, 
Clatsop County Circuit 
Court No. 061238 


Plaintiff-Respondent, 
Appellate Court No. A139810 

v. 
THOMAS MICHAEL KELLY, RESPONDENT'S PETITION FOR 
RECONSIDERATION 

Defendant-Appellant. 
Pursuant to ORAP 6.25, the state seeks the court's reconsideration of its 
decision in this case, a copy of which is attached hereto. State v. Kelly, 244 Or 
App 105, _ _ P3d (2011). The state believes that an error by the court creates 
the need for reconsideration. 

Background 

Defendant was charged with multiple counts of first-degree sexual abuse 
and first-degree sodomy for offenses against his granddaughter, who was ten 
years old when she testified at his trial. In addition to the victim's testimony 
about the events that led to those charges, the state presented an audio recording 
of the victim's initial statements to a police officer and a video recording of her 
subsequent statements to a child abuse assessment interviewer. The state also 
presented physical evidence, found in defendant's basement, which 
•« 
corroborated specific details in the victim's descriptions of what occurred 
during the abuse. Finally, the state presented testimony from members of the 
victim's family that confirmed her account of sexual terminology used by 

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defendant and testimony from a doctor who diagnosed the victim with child 
sexual abuse. 

Defendant appealed his convictions on three grounds, only one of which 

is relevant on reconsideration: He argued that the court erred by allowing the 
doctor to testify that he diagnosed the victim with sexual abuse, over 

defendant's objection that it was not scientific evidence. He also included a 
conclusory statement that the testimony was an impermissible comment on the 
victim's credibility. But he did not develop or cite any authority for that 
statement. And although the supreme court decided State v. Lupoli, 348 Or 
346, 234 P3d 117 (2010), well before oral argument in this case, defendant did 
not bring that case to the court's attention, either with a memorandum of 
additional authorities or otherwise. As a result, the state addressed only his 
more developed argument regarding the scientific nature of the doctor's 
diagnosis in its brief—an argument that the supreme court had specifically 
rejected m State v. Southard, 347 Or 127, 137-39, 218 P3d 104 (2009). 
Reason for reconsideration 

In concluding that the trial court erred by admitting the doctor's 
diagnosis, the court relied on Lupoli, which holds that a sexual abuse diagnosis 
constitutes an inadmissible comment on the credibility of a witness. In 
rejecting the state's argument that the error was harmless, the court relied in 

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part on the analysis in Southard, in which the supreme court held that the 
admission of a sexual abuse diagnosis made in the absence of any physical 
evidence of abuse was unfairly prejudicial. 

This court's analysis of harmlessness here failed to take into account the 
considerable evidence in the record that the victim's account of the repeated 
abuse was credible and that the jury's credibility determination was unlikely to 
have been affected by the doctor's diagnosis. Because "the outcome of the case 
hinged on" a credibility-determination (Opinion at *4), the court should have 
considered the evidence in the record concerning the credibility of the victim's 

~_ 
testimony and her other accounts of the abuse, rather than looking only for other 
evidence of abuse, to determine whether the error was harmless. The weight of 
that credibility evidence, when compared to Dr. Little's statement that he had 
diagnosed "child sexual abuse," far exceeds the weight of that single, indirect 
comment implicating the victim's credibility at the time of his examination. At 
best, the challenged statement equates only to testimony that the doctor 
believed the victim then; it says nothing about the credibility of her trial 

_—— ^^-• ~~ 

testimony, which the jury was able to determine for itself. As explained below, 
because her trial testimony was quite strong (especially given her age), was 
consistent with her earlier, recorded statements, and was corroborated by 

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physical and other evidence, the admission of that diagnosis testimony was 
harmless. 

The evidence supporting the state's harmless error argument includes the 
victim's trial testimony. The victim gave clear, direct and consistent answers 
on both direct and cross examination. See, e.g., Resp Br at 11-14 (excerpts of 
victim's trial testimony). She also made sure she understood the question 
before answering. See Tr 337, 348, 369 (asking for clarification). The 

credibility of that testimony was bolstered by its consistency with her two prior 
recorded statements, including an audio tape of statements the victim made to 
Officer Hoover on the day she first disclosed the abuse (Exhibit 1) and a 
videotape of the victim's subsequent interview at the Lighthouse Center 
(Exhibit 2). The jury heard both tapes and thus was able to compare their 
contents to the victim's testimony. Resp Br 6-7 (citing Tr 468-42, 236-28). 

Furthermore, physical evidence from the basement of defendant's house 
corroborated some details in the victim's testimony. First, semen containing 
defendant's DNA was found on a chair in the basement, which corroborates her 
testimony that the abuse happened while she was sitting on that chair. Second, 
two pornographic videotapes found in the basement contained scenes that she 
had described in detail to the police. Finally, the victim's testimony that 
defendant used the phrase "the good stuff to describe semen was supported by 

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(503)378-5560 


testimony from both her father and grandmother concerning defendant's 
admission to using that term with regard to sexual matters. See Resp Br 17-18 
(citing that evidence). 

In short, despite the fact that the defense strategy was to show the victim 
to be an unstable liar, the credibility determination here was not a close call. 
Given that the doctor's diagnosis testimony, based on her statements to him, 
consisted of a single sentence—"The diagnosis that we made wag that of child 
sexual abuse"—its admission in the case was unlikely to have made any 
difference in the outcome. Tr 241. 

To the extent the court may discount the state's arguments in light of the 
record on appeal (including the court's observation, in note 3 of the opinion, 
that the state did not make a harmless error argument except in oral argument), 
it should consider the sufficiency of the state's response in light of defendant's 
arguments. While it is true that the state did not include a harmless error 
argument in response to defendant's second assignment of error, it is also true 
that defendant's argument in support of that claim focused almost entirely on 
the lack of a scientific basis for the diagnosis. His argument that the doctor's 
diagnosis constituted an unlawful comment on credibility consisted of one 
sentence: "In the alternative, it was abuse of discretion to allow Dr. Little to 
testify as to a 'diagnosis' of sex abuse [because it] is merely an impermissible 

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(503)378-5560 


and inadmissible comment upon the credibility of another witness." App Br 19. 

Furthermore, in addition to not citing any case law in support of his assertion, 

defendant did not attempt to demonstrate that the error was harmful to his case. 

This court should withdraw its prior opinion and reconsider its 

harmlessness determination in light of the significant information supporting 

the victim's credibility here. 

Respectfully submitted, 

JOHN R. KROGER #077207 
Attorney GeneralMARY H. WILLIAMS #911241 
Solicitor General 

/s/ Karla H. Ferrall 
KARLA H. FERRALL #992074 
Assistant Attorney General 
karla.h.ferrall@doj.state.or.us 

Attorneys for Plaintiff-Respondent 
State of Oregon 

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Department of Justice 
1162 Court Street NE 
Salem, OR 97301-4096 
(503)378-5560