State v. Allen

                                       271

       Argued and submitted September 23, 2019, affirmed May 12, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                THOMAS JOHN ROBERT ALLEN,
                      Defendant-Appellant.
                 Clackamas County Circuit Court
                      CR1401318; A166187
                                   

     Defendant appeals from a judgment of conviction for first-degree assault
and first-degree criminal mistreatment of his girlfriend’s three-year-old child.
The charges stem from an incident in which defendant called 9-1-1 after he was
unable to wake the child, who had to undergo life-saving brain surgery to treat a
subdural hemorrhage and brain swelling. On appeal, defendant primarily challenges the trial court’s denial of his pretrial motion to exclude expert testimony
that the child was diagnosed with abusive head trauma. Among other things, he
also challenges the trial court’s denial of his motions for judgment of acquittal
and request for special jury instructions based on his argument that a greater
mental state applied to the physical injury element of the charges. Held: The
trial court did not err in concluding that the abusive head trauma diagnosis evidence was admissible scientific evidence, under OEC 401, OEC 702, and OEC
403. Additionally, defendant’s arguments regarding the applicable mental state
for the injury element of his charges are foreclosed by State v. Barnes, 

,

 (1999).
    Affirmed.



    Susie L. Norby, Judge.
   Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Janis C. Puracal filed the brief amicus curiae for Forensic
Justice Project.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
272               State v. Allen

  ORTEGA, P. J.
  Affirmed.
Cite as 

 (2021)                             273

        ORTEGA, P. J.
          Defendant appeals from a judgment of conviction
for first-degree assault and first-degree criminal mistreatment of his girlfriend’s three-year-old child. The charges
stem from an incident in which defendant called 9-1-1 after
he was unable to wake the child, who had to undergo life-saving brain surgery to treat a subdural hemorrhage and
brain swelling. On appeal, defendant primarily challenges
the trial court’s denial of his pretrial motion to exclude
expert testimony that the child was diagnosed with abusive
head trauma. We conclude that the trial court did not err
in concluding that the evidence was admissible scientific
evidence. We also conclude that the trial court did not err
in denying defendant’s motions for judgment of acquittal
and in refusing to give defendant’s requested special jury
instructions, because defendant’s arguments regarding the
applicable mental state for the injury element of his charges
are foreclosed by State v. Barnes, 

, 

(1999). We reject the remaining assignments of error raised
in defendant’s opening brief without discussion.
         In a supplemental brief, defendant argues that the
trial court erred when it instructed the jury that it could
reach a nonunanimous verdict and that that error constitutes structural error, requiring reversal. Defendant preserved his objection to the instruction, but the jury returned
unanimous verdicts as confirmed through a jury poll. We
reject defendant’s structural error arguments as foreclosed
by State v. Flores Ramos, 

, 

 (2020), and
conclude that any error in giving the erroneous nonunanimous jury instruction was harmless beyond a reasonable
doubt based on the unanimous verdicts, as explained in
State v. Ciraulo, 

, 

 (2020).
        Accordingly, we affirm.
                FACTUAL BACKGROUND
        We recount the evidence introduced at trial that is
necessary to provide context for the issues we address on
appeal. We include the procedural facts and any additional
evidentiary context in our analysis of the issues.
274                                             State v. Allen

         At the time of the conduct at issue here, defendant
lived with his girlfriend and her two children—her fiveyear-old daughter and her son, R, who was almost three.
Defendant would look after the children while their mother
was at work. One morning while he was watching the children, defendant called 9-1-1 and reported that, when he
went to wake R, he found the child was not breathing. He
further reported that he tried CPR and put R into a cold
bath. He also reported that R had recently had pneumonia
and that, at the time of the call, he was breathing, but was
not awake, and defendant was unable to wake him. Upon
confirming that defendant had called 20 minutes after finding R, the 9-1-1 dispatcher asked why defendant did not call
sooner. He responded that it was because he rushed R into a
cold bath and performed CPR and “was freaking out.”
         During the call, defendant also reported that R “was
run over by the dogs.” Two days before the call, R went over
to the family’s two Labrador dogs while they were eating,
and they knocked him down under their raised dog dishes,
pressing his ear to the heater vent. Defendant reported that
the dogs had “stomped” on R “really hard.” Defendant did
not seek medical assistance at the time, and R said that he
was okay. R’s mother was at work during the incident with
the dogs, but defendant and R told her about it that day and
she observed that R’s ear “looked like it was pinched” and
that he had a half-dollar-sized bruise on his back. Defendant
later reported that R had also fallen and bumped his forehead on a concrete step a few days before, which gave R a
“knot” on his head.
         When first responders arrived following defendant’s
9-1-1 call, they found R unconscious, pale, and without
a detectable pulse. After they performed CPR, R’s color
improved, and they transported him by ambulance to the
hospital. R was diagnosed with an “acute left convexity subdural hemorrhage,” which means that he had subdural bleeding along the left side of his head. R’s initial CT scan showed
brain swelling and a hemorrhage on the left side of his brain,
with indications that both old and new blood was present.
        R underwent emergency surgery to decrease the pressure on his brain and remove the blood. His neurosurgeon,
Cite as 

 (2021)                             275

Dr. Grewe, also noted that R had bruising on his left ear.
The surgery, which involved removing a portion of R’s skull,
revealed that the hemorrhage consisted of all new blood and
no old blood, which indicated an acute, or recent, injury. An
acute injury would be one occurring within two days; it would
not be a week-old injury. Two doctors who became involved
in R’s care after his surgery, Dr. Leonhardt and Dr. Lang,
testified that, because the CT scan of R’s brain suggested
the presence of both old and new blood, it was likely that R
had suffered a hyperacute injury—an injury that was hours
old rather than days old; that would explain the impression
of both older and newer blood on the CT scan, despite there
being no “old” blood present, as observed during surgery.

         After surgery, the ICU doctor was concerned that
R would not survive the night and, because of the nature
of his injuries, called Leonhardt for an immediate consult.
Leonhardt is a pediatrician at Child Abuse Response and
Evaluation Services (CARES) and specializes in treating
abuse. Leonhardt observed that R did not appear to have a
skull fracture or lumps on his head, which would indicate
a contact injury. Leonhardt took photographs of bruises he
observed on R, which included bruising on both the inside
and outside of his left and right ear, on his back, and on his
elbow, and included petechia—small broken blood vessels—
on his lower neck near the collarbone. Leonhardt testified
that the ear bruising was particularly concerning, because
it was not in an area commonly injured by accident. He recommended additional medical evaluations and referred the
case to Lang, another pediatrician who specializes in treating abuse with CARES.

         R’s bloodwork did not reveal a bleeding disorder,
X-rays showed that R had no additional injuries, an MRI of
R’s brain confirmed the subdural hemorrhage and indicated
a “shear injury” to R’s brain itself, and an eye examination
found in both R’s eyes a few, scattered retinal hemorrhages,
or bleeding in the eye. The shear injury to R’s brain indicated
“that the brain had gone through some acceleration and
deceleration.” The retinal hemorrhages were less conclusive.
Lang explained that, in the case of abusive head trauma,
children can have “very significant” retinal hemorrhages, as
276                                                State v. Allen

in too many hemorrhages to count. R’s results showed “more
than what we would expect in an accident,” but he “certainly
[did not] have the retinal hemorrhages that are too many to
count or that would be clearly almost diagnostic of abusive
head trauma.”
         Grewe, R’s neurosurgeon, testified that a shear
injury is produced by trauma and that the type of injury
to R implied that he suffered an acceleration and sudden
deceleration. He also testified that he did not believe that
R’s fall on the concrete step or the incident with the dogs
could have resulted in R’s injury, because R did not experience loss of consciousness, scalp swelling, or skull fracture
from those incidents and because “it takes a big trauma to
produce what he had.”
         Leonhardt opined that all the results, including the
absence of a contact injury, suggested that R’s injury was
an “acceleration/deceleration injury,” which could occur if a
child is violently shaken or thrown down onto a soft surface.
Leonhardt testified:
   “So my opinion or diagnosis at that time was that [R’s] clinical presentation, so what brought him to the hospital and
   the findings that we had seen so far—the bruising, the subdural hemorrhage—were the result—were not the result of
   an accidental fall that I had been told about two days old—
   ago—earlier. That they were more consistent with child
   abuse or that—abusive head trauma, specifically, for his
   head injury and then child physical abuse for the bruises.”
         Lang testified that bruising on R’s torso, back, ears,
and neck are “significantly associated with abuse.” Lang
also testified that the bruising and swelling on R’s elbow
“was outside the range of normal.” In looking at R’s case,
Lang ruled out other causes for R’s injury. Ultimately, taking into account the bruising and lack of a contact injury,
Lang concluded that his brain injury “was most consistent
with abusive head trauma and child physical abuse.” Lang
testified that, based on the severity of the injury, R would
have become immediately symptomatic, indicating that his
injury had to be caused within a few hours before R’s first
CT scan, which indicated a hyperacute injury. Lang also
opined that R suffered “some sort of violent acceleration/
Cite as 

 (2021)                             277

deceleration injury” that could not have been caused by R
just falling on his own.
        The jury found defendant guilty of first-degree
assault and first-degree criminal mistreatment by unanimous verdicts. This appeal followed.
                  EXPERT TESTIMONY
         Before trial, defendant moved to exclude, as inadmissible scientific evidence, the introduction of expert testimony regarding “evidence of diagnosis of ‘shaken baby syndrome’ (SBS) or ‘abusive head trauma’ (AHT),” including the
diagnoses of abusive head trauma by Leonhardt and Lang
that ultimately were introduced at trial, as set out above.
Defendant argued that such evidence was not scientifically
valid under State v. Brown, 

, 

 (1984),
and State v. O’Key, 

, 

 (1995), which
require the proponent of scientific evidence to show that “the
proposed evidence is based on scientifically valid principles
and is pertinent to the issue to which it is directed.” O’Key,

. Defendant challenged all three aspects of
the Brown and O’Key inquiry, contending that the evidence
was not relevant under OEC 401, was not helpful to the
trier of fact under OEC 702, and was subject to exclusion
under OEC 403. See State v. Perry, 

, 

 (2009) (“Under Brown and O’Key, scientific evidence is
admissible if it is relevant under OEC 401, helpful to the
trier of fact under OEC 702, and not subject to exclusion
under OEC 403.” (Footnotes omitted.)). Defendant, however, did not challenge in his written motion how the abusive head trauma diagnosis was applied in R’s particular
case.
         The trial court conducted a pretrial evidentiary
hearing, under OEC 104, to determine whether the challenged evidence was scientific and whether it met the foundational standards for scientific evidence articulated in
Brown and O’Key. At the hearing, the state presented testimony from Lang about her credentials and the scientific
foundation for the abusive head trauma diagnosis—what
it is, how it is diagnosed, safeguards against misdiagnosis,
and its general acceptance in the pediatric medical field. We
278                                                 State v. Allen

summarize the portions of that testimony that are most pertinent to the arguments defendant raises on appeal.
         Lang is board-certified in general pediatrics and in
child abuse and neglect and works as a child abuse pediatrician at CARES. She testified that she first became familiar
with abusive head trauma during her pediatrics residency
when she did a rotation with a child abuse and neglect team.
Education regarding abusive head trauma is now included
in the medical school curriculum at some schools.
       Lang explained the difference between shaken baby
syndrome and abusive head trauma:
      “So the shaken baby term is actually only used now in
   prevention because it’s a very good prevention technique
   that people understand: Never shake a baby. And we certainly know, based on literature, that shaking a baby can
   have extremely profound effects on the child, even can be
   fatal.
       “The term is dated for a number of reasons. It doesn’t
   include all of the maltreatment or inflicted injury that could
   happen to a child’s head. So, for instance, if there was a
   contact injury or different types of injury, such as asphyxia,
   that is not necessarily shaking, but leads to inflicted injury
   of the child’s head and brain.
      “So by using a term such as abusive head trauma is
   more inclusive to all of the different mechanisms that can
   affect a child’s head, brain and its contents when a child is
   injured in an inflicted manner. It also—we try not to focus
   so much on a discrete mechanism so much as we try to be
   more correct in the diagnosis.”
         Lang testified that a recent study “concluded that
the diagnoses of shaken baby syndrome and abusive head
trauma were generally accepted by physicians who frequently encounter suspected child abuse cases[,] [a]nd they
were considered likely sources of subdural hematoma, severe
retinal hemorrhages and coma or death in young children.”
The vast majority of respondents—96.7 percent—indicated
that they considered abusive head trauma a valid diagnosis. Lang also testified that there are a “small number” of
dissenters in the medical community, but that they tend
to work in fields other than pediatrics and tend to be the
Cite as 

 (2021)                              279

same 10 or 20 people that come out with studies or testify as
experts in hearings against the diagnosis.

         With regard to the error rate for the diagnosis, Lang
testified that there have been well over 700 studies with “different strengths of association and rates.” A difficulty is that
it would not be ethically sound to expose a child to trauma
to see what happens. There is “quite a bit” of specialized
literature on abusive head trauma, as well as related topics, “such as retinal hemorrhages, cerebral edema, seizures,
apnea, histories, outcomes, [and] associated other injuries.”
She also explained that the studies since the 1960s have
evolved from just observational to case-controlled studies
and prospective studies that have “delineated what we see
with abusive head trauma and what we don’t see with abusive head trauma.”

         Lang also explained that, whenever there is an abusive head trauma diagnosis, it is always peer reviewed with
fellow physicians. She testified that the diagnosis is typically objective, although the child’s history will factor into
it. The objective data is the laboratory results and imaging
studies. The subjective component is the history and social
history provided by the family. She stated that “we use both
objective markers and the history provided to make our
diagnosis because we do things based on the entire picture.”
She explained that there are standards applied, which
include the typical tests to look for injury and to rule out
other diagnoses. The particular tests will vary somewhat
depending on the precise injury that the child presents with.
The safeguards against a misdiagnosis are the peer review
process, keeping up with the literature, and also attending
conferences “to make sure that we’re practicing in the realm
of what’s accepted.”

           As part of that discussion, Lang also explained
that relying solely on the traditional “triad” of symptoms—
subdural hematomas, retinal hemorrhages, and brain
dysfunction—to diagnose abusive head trauma has been
discarded as a methodology. She explained that “what we
really look at now is just the overall picture of everything
…[;] there’s a lot more methodology to it.”
280                                                State v. Allen

         With regard to distinguishing head trauma and
abusive head trauma, Lang testified that, for example, a
baby who has been accidentally dropped may have a subdural hematoma, “but it’s a very different-looking subdural hematoma than in a child that has the acceleration-deceleration.” She explained that, “for instance, we have
studies that show an acceleration-deceleration, it’s typically over the convexities, which is basically this part of the
brain, versus in contact, it’s going to be right over the point
of contact.” They also look at other things to rule out, such
as whether the child has a bleeding disorder, brain atrophy,
a condition that would predispose the child to have a subdural hematoma like enlarged spaces in the skull or a previous surgery, or other potential medical conditions that could
cause the injury. Lang testified that
   “it’s pretty similar to basically any differential diagnosis
   that any doctor would make for any condition. And it’s
   pretty well known that once you get to the point of retinal
   hemorrhages and a subdural hematoma that’s over the convexity. And if you don’t have that history of trauma and you
   don’t have anything else to explain it medically, then that’s
   when the concern for abusive head trauma presents.”
         Lang also explained that there are multiple types
of head trauma diagnoses that can fit under abusive head
trauma, not just subdural hematoma. She testified that
sometimes there is a witness to the injury, but often it
requires going through the differential diagnosis and “making sure we’re crossing things off the list and then seeing
what we’re left with.” She explained that most of the time
the process involves trying to distinguish between accidental trauma and inflicted trauma. There are studies that
look at what is seen with short falls and rotational falls, and
then she compares that to the history given and whether it
explains the injuries.
        She also explained that an abusive head trauma
diagnosis is important medically for treatment purposes
after the initial intervention, because children with abusive head trauma tend to have worse outcomes than those
with accidental trauma, and also have higher rates of seizures and apnea, so the diagnosis is important to make sure
that treatments are geared for the child, such as checking
Cite as 

 (2021)                                                 281

for other trauma to the body and that the child is in a safe
environment.
        Following the presentation by the state, defendant
challenged the state’s failure to present evidence that the
abusive head trauma diagnosis was properly applied in this
case and also argued that the state failed to put on evidence of articulated, particular standards that are applied
for the purpose of diagnosing abusive head trauma. The
state explained that it did not present evidence detailing
how Lang arrived at an abusive head trauma diagnosis in
this case because defendant’s motion had challenged only
the scientific foundation for the diagnosis, which the state
argued it had sufficiently addressed.
         The court issued a letter opinion denying defendant’s motion to exclude that evidence. After summarizing
the issue and Lang’s testimony, the court made specific findings, applying the factors from Brown and O’Key for determining the admissibility of scientific evidence.1 Those findings are as follows:

     1
       The trial court’s factor-specific findings were based on the guidelines in
Brown. That case set out seven nonexclusive factors to use as guidelines: “(1) The
technique’s general acceptance in the field; (2) The expert’s qualifications and
stature; (3) The use which has been made of the technique; (4) The potential rate
of error; (5) The existence of specialized literature; (6) The novelty of the invention; and (7) The extent to which the technique relies on the subjective interpretation of the expert.” Brown, 

.
     Brown also noted the potential usefulness of 11 other factors, some of which
overlapped with the seven already set out: “(1) The potential error rate in using
the technique; (2) The existence and maintenance of standards governing its use;
(3) Presence of safeguards in the characteristics of the technique; (4) Analogy
to other scientific techniques whose results are admissible; (5) The extent
to which the technique has been accepted by scientists in the field involved;
(6) The nature and breadth of the inference adduced; (7) The clarity and simplicity with which the technique can be described and its results explained;
(8) The extent to which the basic data are verifiable by the court and jury;
(9) The availability of other experts to test and evaluate the technique; (10) The
probative significance of the evidence in the circumstances of the case; and
(11) The care with which the technique was employed in the case.” 

 at 417 n 5.
The Supreme Court in O’Key also discussed four additional factors that may be
useful, and which overlap somewhat with the Brown factors: (1) “whether the
theory or technique in question can be (and has been) tested”; (2) “whether the
theory or technique has been subject to peer review and publication”; (3) “the
known or potential rate of error and the existence of operational standards controlling the technique’s operation”; and (4) “the degree of acceptance in the relevant scientific community[.]” O’Key, 

 (internal quotation marks
omitted).
282                                              State v. Allen

     “1. Techniques for arriving at diagnoses of [shaken
  baby syndrome (SBS)] and [abusive head trauma (AHT)]
  are generally accepted in the medical field.
     “2. Dr. Lang’s qualifications to make such diagnoses
  are impressive, and indicate she has attained a high degree
  of mastery of the techniques used to make such diagnoses.
     “3. The techniques have been used to determine what
  medical treatment measures are necessary to facilitate
  healing from specific forms of child head injuries.
      “4. The potential rate of error cannot be easily quantified because testing for rate of error would necessarily
  involve unethical practices that may also be criminal.
     “5. There is voluminous specialized literature on techniques for diagnoses of SBS and AHT.
     “6. The invention is not novel; it has been relied on
  long enough to become part of medical school curriculums
  in the recent past, and to be subject to national Board
  Certification.
     “7. The technique relies, in part, on the subjective
  interpretation of the expert, but also relies on objective
  data, like laboratory results and imaging tests like MRIs,
  CAT scans and PET scans, which provide information
  about the size and location of any brain bleeds, the area(s)
  where the child’s cranium and brain incurred damage, and
  visual data about whether the specific head trauma indicates impact with a hard object, or acceleration and deceleration of the head.
     “8. Safeguards are used in reaching diagnoses of
  SBS and AHT, through consultation and immediate peer
  reviews among medical colleagues for each diagnosis.
     “9. The expert the state is calling on this subject
  describes the techniques she uses clearly, although they
  are not simplistic techniques, and she also explains the
  reasons for results she reaches in a transparent way.
     “10. Other experts are available to evaluate the
  techniques.
     “11. In the circumstances of the instant case, the diagnosis is probative on a significant evidentiary matter.”
       The trial court also remarked:
     “Although the state did not offer evidence to demonstrate the care with which the technique was employed in
Cite as 

 (2021)                              283

   this case, Dr. Lang’s testimony was more than sufficient
   to convince the court that she would apply this diagnostic
   technique carefully, thoughtfully and thoroughly whenever
   she implements it.”
         Based on those findings, the court concluded that
the expert testimony that may include an abusive head
trauma diagnosis met the standard for the admissibility of
scientific evidence.
         On appeal, defendant challenges the trial court’s
denial of his pretrial motion to exclude the diagnosis of abusive head trauma as inadmissible scientific evidence. The
admissibility of scientific evidence is a legal question that
we review for legal error. State v. Reed, 

,

, rev den, 

 (2015).
         We first clarify the arguments that we must address
in this appeal. Here, defendant does not challenge that R’s
physical condition was properly diagnosed through the medical tests that were ordered nor does he challenge that R
suffered from head trauma. He also does not challenge any
of the testifying physicians’ qualifications or argue that
they improperly applied the SBS/AHT theory to the facts
of R’s case. Rather, defendant argues only that the theory
of SBS or AHT itself is not a scientifically valid theory of
medical causation under Brown and O’Key and, thus, testimony about it should be excluded in all instances. That is,
defendant’s only challenge is to Lang and Leonhardt having
been permitted to testify that R’s injuries were consistent
with abusive head trauma.
         Before turning to defendant’s arguments, we frame
the specific inquiry we must make in this case. In Miller
v. Elisea, 

, 

 (2020), we recently
discussed how to evaluate a challenge to medical causation
under the Brown and O’Key standards. Similar to the challenge being made here, in Miller, the defendant did not
challenge the plaintiff’s physical condition—the plaintiff
undisputedly had a fibromyalgia condition—but rather challenged the plaintiff’s expert’s testimony regarding medical
causation of that condition, there, that it was caused by the
physical trauma of a car accident. We explained in Miller
that the Supreme Court cases in Marcum v. Adventist Health
284                                                            State v. Allen

System/West, 

, 

 (2008), and Jennings
v. Baxter Healthcare Corp., 

, 

 (2000),
provide the proper framework for the inquiry into the scientific validity of a theory of medical causation, because, as
explained in Marcum, while the general guidance in Brown
and O’Key for the admissibility of scientific evidence is helpful, it provides “only limited guidance on the issue of scientific evidence of medical causation.” Miller, 

.
         In Marcum, the Supreme Court addressed a situation similar to that in Miller and to that presented here—
whether the expert’s theory of causation was scientifically
valid “in the absence of a ‘demonstrable mechanism of
causation,’ and for which there was not some independent,
verifiable corroboration.” Miller, 

 (quoting
Marcum, 

). First, the court in Marcum
stated that “ ‘differential diagnosis’ is an accepted technique
in which ‘a doctor develops a list of all diseases that might
cause a patient’s symptoms and then, by a process of elimination, narrows the list.’ ”2 

 (quoting Jennings,

). A differential diagnosis is a methodology
accepted by the medical community for determining a condition or causation of a condition. Marcum, 

.
         However, the court explained, testimony is not
admissible simply because the expert used a differential diagnosis, rather, “admissibility will turn on whether
the particular use of differential diagnosis to determine
causation meets the more general test of scientific validity.”

 at 248 (citing Jennings, 

). “[T]he basis for
establishing the scientific validity of a differential diagnosis
will vary depending on the type of injury.” Marcum, 

. For example, a long-latency exposure or a complex
chain of causation may require extremely accurate data,
methods, and controlled error rates, whereas “in a single,
sharp event, [where] the injury is immediate and localized”
it may be appropriate to “rule in” that event, “particularly
    2
      The court further explained that “differential diagnosis involves a process
by which a medical expert first ‘rules in’ various potential causes and then ‘rules
out’ those causes one by one (to the extent possible) by analyzing the patient’s
condition until the expert can identify the likely cause from among those remaining.” Marcum, 

.
Cite as 

 (2021)                             285

when there are few obvious alternative causes.” Id. at 249.
When “ruling in” a potential cause, “a trial court should
insist that the causation theory be ‘biologically plausible,’
that is, that the exposure could have caused [the] injury.” Id.
(emphasis in original). However, “a particular possible cause
should not necessarily be excluded on the grounds that the
expert cannot describe the precise mechanism of causation
or point to statistical studies of cause and effect.” Id.; see
also Kennedy v. Eden Advanced Pest Technologies, 

, 

 (2008) (stating that a conflict in the scientific community between qualified experts
about the validity of a technique is not a basis for excluding the testimony). The court in Marcum also explained
that ruling out potential causes should be a scientifically
valid process, based on things such as research, physical
examination, and testing, in an effort to identify the actual
cause. Marcum, 

. However, “[e]ven if
the expert is not able to eliminate all alternative causes,
the testimony nevertheless may be reliable and admissible
if sufficient potential causes are eliminated for the expert
to identify one particular cause as the likely cause of the
condition.” 

 (emphasis in original).
         With the frame of the inquiry we must make in
mind, we turn to defendant’s arguments. Defendant frames
the issue as the validity of SBS/AHT theory, which he
defines as “a theory that a child who suffers subdural hemorrhages and retinal hemorrhages with minimal evidence of
impact has been subjected to abuse.” Defendant asserts that
the relevant scientific community for evaluating the theory
is the biomechanical field, which is divided on whether the
theory is reliable. He points to scientific articles that have
stated that the theory that shaking a child can cause subdural hematomas and retinal hemorrhages is biomechanically
improbable. Defendant also cites scientific articles to support
his assertion that the presence of subdural and retinal hemorrhages have a broad range of potential causes, including
accidental trauma, short falls, prenatal conditions, congenital malformations, disease, metabolic disorders, hypoxia,
childhood stroke, infection, birth injuries, “rebleeds,” and
toxins. That is, defendant asserts, there is nothing unique
to abuse as a cause of subdural and retinal hemorrhages.
286                                            State v. Allen

Defendant asserts that, as a result, “the SBS/AHT theory
that subdural and retinal hemorrhaging is ‘diagnostic’ of
abuse is not generally accepted in the relevant scientific
community, and Lang’s ‘diagnosis’ that rested on that theory was unreliable.”

         Defendant also argues that the SBS/AHT theory
is highly subjective, which undermines its reliability. Defendant points out that there is no standard methodology or
guidelines; rather, it relies on clinical judgment and gathering information from various sources to determine if the
injuries are consistent with accidental trauma or abusive
head trauma. Defendant asserts that that process inserts
subjectivity at every point. He also points out that the
potential error rate is unknown, because testing cannot
be ethically done and thus research is limited to children
who have been treated or died, which in turn relies on the
clinical judgment of the treating physician. Defendant also
similarly argues that the diagnosis is lacking in safeguards
to minimize subjectivity and enhance accuracy. Defendant
acknowledges that physicians use a differential diagnosis
approach by “ruling out” other causes, but he argues that
“that process does not render the diagnosis reliable if the
expert draws only from evidence that supports the SBS/
AHT theory.”

          Turning to our analysis, we reiterate that defendant is arguing only that the abusive head trauma diagnosis can never be admissible because it is a scientifically
unreliable theory of medical causation, after having defined
it as a theory that a child with subdural and retinal hemorrhages and no impact injury has been subject to abuse. He
does not assert any argument directed at how Lang defined
the diagnosis or described her process for arriving at such
a diagnosis, which was then applied to this case. With that
understanding, analyzing defendant’s argument is difficult,
because it is largely nonresponsive to Lang’s testimony at
the OEC 104 hearing and to the factors that the Supreme
Court has explained are the focus of the OEC 702 inquiry
in cases of medical causation using a differential diagnosis methodology. See Marcum, 

 (stating,
among other things, that “admissibility will turn on …
Cite as 

 (2021)                                             287

the particular use of differential diagnosis to determine if
causation meets the more general test of scientific validity”
(emphasis added)); see also State v. Sanchez-Alfonso, 

, 

 (2012) (focusing inquiry on the
expert’s expertise, “how he or she gathers and uses particular information, how that information informs his or her
conclusions, and the scientific basis for the steps that he or
she takes in that process”). Lang specifically testified that
relying solely on the triad of symptoms has been discarded
as a methodology and that what is done now is to look at
the overall picture and apply a differential diagnosis that
is used by doctors for any condition; defendant also recognized in his argument that that is the approach. However,
defendant’s arguments are not directed at the differential
diagnosis made in this case, specifically whether abusive
head trauma could properly be “ruled in” in R’s case as biologically plausible, or whether other causes for his injuries
scientifically could be “ruled out,” which is the inquiry we
must make as directed by the Supreme Court in Marcum
and Jennings. Despite that difficulty, some of defendant’s
arguments do touch on the type of inquiry we must make,
so we proceed to address those arguments.
         As we understand them, defendant’s arguments
boil down to the conflict between experts on the acceptance
of the theory of causation and the subjective nature of making the diagnosis.3 The conflict of acceptance, however, is
not a basis on which to exclude a theory of causation. As
we stated in Miller, “the general acceptance of a theory of
causation in the medical community is certainly relevant to
the determination of the scientific validity of a theory, but
its absence is not disqualifying.” 

 (citing
Marcum, 

, and Jennings, 

).
Here, Lang supported the theory that abuse can cause this
type of head trauma based on its acceptance in the pediatric
medical field, her own clinical experience, and peer-reviewed
    3
      We note that defendant also asserts that the use of the word “abusive” in
abusive head trauma is not admissible scientific evidence because it assumes
an intent to abuse, which is a legal question, not a medical one. We reject that
argument, because the mere use of the word “abusive” or “abuse” does not per se
make a medical causation diagnosis inadmissible under OEC 702. See, e.g., State
v. Southard, 

, 

 (2009) (diagnosis of sexual abuse in
that case was scientifically valid under OEC 702).
288                                             State v. Allen

literature. Defendant does not dispute the acceptance of the
theory in the medical community, or Lang’s own qualifications and experience, or that studies and scientific literature
exist to support the theory. Rather, defendant argues that
some of the biomechanical community—the only relevant
community in defendant’s view—is conflicted on the theory
and has disputed shaking as a biologically plausible cause of
subdural and retinal hemorrhages. That conflict alone is not
a basis on which a trial court, acting as gatekeeper, should
exclude abusive head trauma as a “rule in” theory of medical
causation. See Miller, 

 (reversing when the
trial court based exclusion of medical causation on the lack
of consensus in the medical field that physical trauma can
cause fibromyalgia and holding that the conflict in the community went to the weight and not the admissibility of the
evidence). We also note that that conclusion is particularly
applicable here, because defendant did not challenge the differential diagnosis actually undertaken in R’s case to rule
in abusive head trauma, which included that R’s injury was
severe, hyperacute, lacked an impact injury, and included
a shear injury to the brain, indicating an acceleration/
sudden deceleration, or to rule out other potential causes,
which included that no other cause could be identified that
could medically explain the hyperacute injury.
         Likewise, defendant’s arguments based on the
subjective nature of an abusive head trauma diagnosis,
although a relevant consideration, do not require exclusion
of the testimony in this case, because those arguments are
not tethered to that testimony. At the OEC 104 hearing,
Lang explained that the diagnosis relies on objective components of medical testing and subjective components of the
child’s history to determine whether abusive head trauma
should be “ruled in” as a cause. Lang also testified that the
approach is amenable to peer review, because a peer physician could look at the same tests and history to arrive at the
same conclusion. That is not an entirely subjective exercise;
it tracks the basic methodology of a differential diagnosis
and is the same methodology we determined was scientifically valid in the case of a diagnosis of physical child abuse.
See Marcum, 

 (explaining differential diagnosis); State v. Sanchez-Alfonso, 

, 241
Cite as 

 (2021)                              

 (2010), rev’d on other grounds, 

, 

 (2012) (holding that the diagnostic approach of enlisting medical testing and social history to rule in and out
potential causes for injuries, leading to a medical diagnosis
of physical child abuse was scientifically valid). Additionally,
defendant’s arguments about the lack of objective studies
and controlled error rates are not a basis for exclusion when,
as here, such studies cannot ethically be conducted. See,
e.g., State v. Southard, 

, 

 (2009)
(“Where science cannot ethically provide such an indicator,
we are required to look more closely at other factors that
offset the unavailability of that indicator.”); Perry, 

 (stating that lack of controlled studies are not “an absolute bar to the admission of expert testimony by qualified
clinicians”). Defendant does not offer a more precise argument about what occurred in this case that would make ruling in abusive head trauma, or ruling out another proffered
cause, inappropriately subjective. Marcum, 

(the appropriateness of ruling in or ruling out a potential
cause depends on the type of injury and causal chain posited). Based on the testimony in this case, we conclude that
the state met its burden to demonstrate that the abusive
head trauma diagnosis met the minimum requirements of
scientific validity to be helpful to the jury under OEC 702.
          That does not end our inquiry. To be admissible
under Brown and O’Key scientific evidence must also be
relevant under OEC 401 and must not be subject to exclusion under OEC 403. The expert testimony here was relevant to the issues the jury was asked to decide, because
whether R’s injury was caused by abuse while in defendant’s
care was a material fact at issue in the case, and the physicians’ testimony that his injury was caused by abusive head
trauma increased the probability of that fact’s occurrence.
See Southard, 

 (stating same with respect to a
diagnosis that a child had been sexually abused). Defendant
does not argue otherwise on appeal.
          The remaining question is whether the evidence
should be excluded under OEC 403, because “the probative value of the diagnosis ‘is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay or
290                                              State v. Allen

needless presentation of cumulative evidence.’ ” Southard,

 (quoting Brown, 

). In making that evaluation, Brown instructs that, “[n]otwithstanding the usual deference to trial court discretion [under OEC
403], we as an appellate court retain our role to determine
the admissibility of scientific evidence under the Oregon
Evidence Code.” 

; see also Southard, 

 (concluding that “[i]n our view, the risk of prejudice
substantially outweighs the minimal probative value of the
diagnosis” (emphasis added)).

          Here, defendant argues that, even if it is sufficiently
reliable, the unfair prejudice from the abusive head trauma
evidence outweighs its probative value and should have been
excluded under OEC 403. Defendant argues that the danger
of that evidence is that the jury will overvalue it because of
its scientific nature and abdicate its own role to determine
whether defendant subjected R to abuse. See, e.g., Brown,

 (concluding that polygraph evidence is
inadmissible, because, even though it had some relevance
and may be helpful to the jury, that value was outweighed
by the risk the jury would overvalue the evidence as scientific). Defendant argues that that danger was realized
in this case, because Lang testified that R’s injuries were
caused by abuse, based on the injuries alone.

          We conclude that the evidence is admissible under
OEC 403. In so concluding, we rely on the characteristics of
the diagnosis in this case which distinguish it from the diagnosis at issue in Southard. In Southard, the Supreme Court
was confronted with whether a diagnosis of “sexual abuse”
of a child, in the absence of any physical evidence of abuse,
was admissible scientific evidence. The court concluded that
the evidence was scientifically valid, under OEC 702, and
relevant, under OEC 401; however, the court concluded that
it was inadmissible under OEC 403. The court first noted
that the probative value of the evidence was “slight,” because
the diagnosis “did not tell the jury anything that it was not
equally capable of determining on its own.” 347 Or at 140.
That was so, the court stated, because, if the jury credited the
child’s report of oral sex, then the child was necessarily sexually abused. The criteria the expert used to credit the child’s
Cite as 

 (2021)                              291

report were “essentially the same criteria that we expect juries
to use every day in courts across this state to decide whether
witnesses are credible.” 

 The court then determined that
the risk of prejudice was great: “The fact that the diagnosis
came from a credentialed expert, surrounded with the hallmarks of the scientific method, created a substantial risk that
the jury ‘may be overly impressed or prejudiced by a perhaps
misplaced aura of reliability or validity of the evidence.’ ”

 at 140-41 (quoting Brown, 

). The court
emphasized that the diagnosis was based on the expert’s
crediting the child’s report, which “posed the risk that the
jury will not make its own credibility determination, which
it is fully capable of doing[.]” Southard, 

. The
court concluded, “In our view, the risk of prejudice substantially outweighs the minimal probative value of the diagnosis.” 

         Unlike in Southard, here, the diagnosis of abusive
head trauma was based on the physical evidence of R’s injuries and the medical explanation of the significance of those
various injuries, as well as the reasons why the other offered
accidental causes for R’s injuries were inconsistent with the
full medical picture of R’s condition. That is, the diagnosis
of abusive head trauma was not based singularly on crediting or not crediting any person’s statements; it was about
evaluating R’s physical injuries and whether those injuries
medically matched up to the proffered causes for those injuries. In that way, the diagnosis that R’s injuries were more
consistent with abuse provided the jury with information
that it could not equally evaluate on its own. In addition,
although there is a risk that the jury could overvalue that
medical causation testimony, it is the same type of risk that
accompanies any medical causation testimony. We thus conclude that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice.
       Accordingly, the trial court did not err in denying
defendant’s pretrial motion to exclude the abusive head
trauma diagnosis evidence.
                   BARNES ARGUMENT
         We also address defendant’s assignments of error
related to the trial court’s denial of his motions for judgment
292                                                           State v. Allen

of acquittal and the trial court’s refusal to give his requested
special jury instructions, both of which requests were based
on defendant’s argument that the state had to prove a mental state for the injury element in both of his charges for
first-degree assault, ORS 163.185(1)(b), and first-degree
criminal mistreatment, ORS 163.205(1)(b)(A).4 Defendant
was charged with a “knowingly” mental state for both
charges and he argued that the state had to prove that he
knew—that is, that he acted with an awareness—that he
was causing serious physical injury to R, with respect to
the assault charge, and knew that he was causing physical injury to R, with respect to the criminal mistreatment
charge, and, failing that, that the state had to prove that he
acted with criminal negligence with respect to the injury
elements. The trial court denied defendant’s motions for
judgment of acquittal and refused to give his requested special jury instructions based on the Supreme Court’s opinion
in Barnes.
         In Barnes, the Supreme Court addressed a charge of
second-degree assault, which as charged in that case, under
ORS 163.175(1)(a), is “knowingly caus[ing] serious physical
injury to another[.]” The court rejected an argument by the
defendant that the state had to prove that he knew that his
conduct would cause a serious physical injury. The court
first determined that the definition of knowingly in ORS
161.085(8) applied, even though that definition omits an application to result elements. Barnes, 

. That statute
provides that “ ‘[k]nowingly’ or ‘with knowledge,’ when used
with respect to conduct or to a circumstance described by a
statute defining an offense, means that a person acts with
an awareness that the conduct of the person is of a nature so
described or that a circumstance so described exists.” ORS

     4
       As charged in this case, under ORS 163.185(1)(b), “[a] person commits the
crime of assault in the first degree if the person … knowingly causes serious
physical injury to a child under six years of age[.]”
     Also, as charged in this case, under ORS 163.205(1)(b)(A), “[a] person commits the crime of criminal mistreatment in the first degree if … [t]he person
… having assumed the permanent or temporary care, custody or responsibility
for the supervision of a dependent person … knowingly … [c]auses physical
injury or injuries to the dependent person[.]” A “dependent person” “means a person who because of either age or a physical or mental disability is dependent upon
another to provide for the person’s physical needs.” ORS 163.205(2)(b).
Cite as 

 (2021)                             293

161.085(8). The court construed the assault statute and the
knowingly definition “together according to their express
terms and in context with the related assault statutes,” and
concluded that, “in a prosecution for assault in the second
degree, the state needs to prove only that defendant was
aware of the assaultive nature of his conduct and that his
conduct in fact caused the victim serious physical injury.”
Barnes, 

. See also State v. English, 

, 

 (2015) (applying Barnes to
“knowingly causes physical injury” in ORS 163.205(1)(b)(A),
first-degree criminal mistreatment).
         On appeal, defendant makes the same arguments
he did below, acknowledging that we cannot depart from
Barnes, a Supreme Court case. Defendant, however, also
asserts that Barnes was wrongly decided, that the Supreme
Court implicitly overruled Barnes in State v. Simonov, 

, 

 (2016), and that we previously concluded
that Barnes does not apply for purposes of first-degree assault
in State v. Pryor, 

, 

 (2018).
         We reject defendant’s arguments. The Supreme Court
did not overrule Barnes in Simonov, and the reasoning in
Simonov is not incompatible with Barnes. In Simonov, the
Supreme Court addressed the mental state that applied to
an element of unlawful use of a vehicle—use of a vehicle
“without the consent of the owner”—when the statute defining the offense did not provide a mental state. 

;
ORS 164.135(1)(a) (2007), amended by Or Laws 2019, ch 530,
§ 1. To answer that question, the court addressed whether
the consent element was a conduct element, which requires
proof of an intentional or knowingly mental state; a result
element, which requires proof of an intentional, reckless, or
criminally negligent mental state; or a circumstance element,
which requires proof of a knowingly, reckless, or criminally
negligent mental state. Simonov, 

-40 (citing
ORS 161.085(7) - (10), which define mental states). The court
concluded that the consent element in ORS 164.135(1)(a)
(2007) was a conduct element, because it was part of the
essential nature of the prohibited act, and, as a result, the
minimum culpable mental state that attached to that element was knowledge. 

. Nothing in that case
casts doubt on the reasoning in Barnes, which addressed
294                                                               State v. Allen

whether to act knowingly in the context of assault, when
the mental state was provided for in the assault statute,
required the defendant to have an awareness of a particular result of the conduct or awareness of the nature of the
conduct. Simonov, which addressed a different statute with
a different structure and purpose, is not necessarily incompatible with Barnes.
         Additionally, Pryor does not establish that Barnes
does not apply to defendant’s first-degree assault charge. In
that case, we concluded that Barnes did not overrule our
prior decision in State v. Peacock, 

, 

 (1985), in which we held that first-degree assault, when
charged under ORS 163.185(1)(a),5 which has an intentional
mental state, “requires that the jury be instructed that the
state must prove that a defendant intended to cause serious
physical injury.” Pryor, 249 Or App at 133. The statutory definition of “intentionally” requires that result: “ ‘Intentionally’
or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that
a person acts with a conscious objective to cause the result
or to engage in the conduct so described.” ORS 161.085(7).
In so concluding, we specifically distinguished the case from
Barnes, which involved an assault charged with a knowingly mental state and the reasoning in that case relied on
the statutory definition of knowingly, which does not refer to
the result elements of crimes. Id. at 130-31. As noted above,
on both charges, defendant was charged with a knowingly
mental state, and, thus, Barnes, a Supreme Court case that
that court has not overruled, controls.6 Accordingly, the trial
court did not err.
         Affirmed.



    5
       ORS 163.185(1)(a) provides that “[a] person commits the crime of assault in
the first degree if the person … [i]ntentionally causes serious physical injury to
another by means of a deadly or dangerous weapon[.]”
    6
       We note that the Supreme Court has taken review of cases that raise the
issue of whether Barnes should be overruled or limited. State v. McKinney, 

, 

, rev allowed, 

 (2020); State v. Shiffer, 

, 

, rev allowed, 

 (2020); State v. Owen, 

, 

, rev allowed, 

 (2020).