State v. Meighan

                                       136

 Argued and submitted September 27, 2022, affirmed February 8, petition for
                review denied June 15, 2023 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   SEBASTIAN S. MEIGHAN,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR35408; A173611
                                    

    Defendant appeals a judgment of conviction for multiple counts of felony sexual offenses. He assigns error to the trial court’s jury instructions on unanimity,
the court’s admission of a doctor’s diagnosis of chronic child sexual abuse, and
the proportionality of defendant’s ultimate sentence. Held: First, the Court of
Appeals concluded that the trial court committed legal error when it instructed
the jury that it could return nonunanimous verdicts and when it failed to instruct
the jury that it had to reach a unanimous concurrence on the factual incidents
underlying the charges. However, both errors were harmless. In addition, in light
of State v. Beauvais, 

, 

 (2015), the trial court did not err in
admitting the diagnosis of chronic child sexual abuse. Finally, the court rejected
defendant’s challenge to his sentence as unconstitutionally disproportionate.
    Affirmed.



    Janelle F. Wipper, Judge.
   Anne Fujita Munsey, 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.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
James, Judge pro tempore.
    JOYCE, J.
    Affirmed.
    Aoyagi, P. J., concurring.
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        JOYCE, J.
         Defendant appeals a judgment of conviction for two
counts of first-degree rape, one count of second-degree rape,
and four counts of first-degree sexual abuse. His convictions
stem from his abuse of his niece, D, beginning when she was
about five and continuing until she was about 14 years old.
On appeal, he challenges the trial court’s jury instructions,
the court’s admission of a diagnosis of chronic child sexual
abuse, and his ultimate sentence. We reject defendant’s
challenge to his sentence without discussion. We otherwise
affirm.
        I. UNANIMOUS JURY INSTRUCTIONS
         Defendant raises two separate challenges to the
trial court’s jury instructions on unanimity. First, defendant argues, and the state concedes, that the trial court
erred in failing to instruct the jury that it had to reach a
unanimous verdict to find defendant guilty. We agree that
the trial court erred in light of Ramos v. Louisiana, 

, 

, 

 (2020),
which was decided after defendant’s trial. However, the jury
unanimously found defendant guilty on all counts, as evidenced by the fact that each juror signed each verdict form.
We thus conclude that the instructional error was harmless. See State v. Kincheloe, 

, 

(2020), cert den, ___ US ___, 

, 

(2021).
        Second, defendant argues that the trial court erred
in denying his proposed instruction that the jury had to
reach a unanimous concurrence on the factual incidents
underlying the charges. Instead, the trial court instructed
the jury that “ten jurors voting guilty must agree on what
factual occurrence constituted the crime. Thus, in order to
reach a guilty verdict on any count, at least ten jurors must
agree on what factual occurrence constituted the offense.”
Defendant argues that, in light of Ramos, that instruction
was error. The state concedes as much, see State v. Stowell,

, 5 n 1, 

 (2020), abrogated in part
on other grounds by State v. Shedrick, 

, 

 (2022) (unanimous jury concurrence required), but
138                                                     State v. Meighan

argues that the error was harmless.1 We agree with the
state.
         To understand why the instruction was harmless, a
detailed description of the facts (particularly with respect to
where and when the abuse took place) is necessary. At the
time of the trial in 2020, D was 14 years old. Defendant, who
is D’s uncle, lived with D and her family at various times
from 2007 through 2018. From 2006 to 2011, when D was
one until she was approximately five, D’s family lived at a
yellow house. In 2011, D’s family moved to a three-bedroom
apartment, followed by a second move into a larger, fourbedroom apartment in the same complex in 2014, when D
was approximately eight. In both apartments, D had her
own room for a time and shared a room with her brother for
a time; defendant, when he lived with them, had a separate
room.
         In 2019, D disclosed to her friends that defendant
had raped her. Shortly after her disclosures, D underwent
an interview and physical examination at Child Abuse
Response and Evaluation Services (CARES). We describe
the ultimate outcome of that examination later in relation
to defendant’s challenge to the diagnosis of chronic child
sexual abuse and, for now, confine our discussion to D’s
statements of abuse during the interview and examination.
D said that defendant first abused her when she was four
or five years old; while she was living at the yellow house,
defendant touched her breasts with his hands. D said that
defendant also touched her breasts in the first apartment
and touched her breasts and vagina over her clothing in two
of the bedrooms in the second apartment. On another occasion in the second apartment, defendant made her touch his
penis with her hand in her bedroom.
       D also disclosed that, while living in the second
apartment, defendant came into her room at night, when
she was asleep, and she woke up with defendant on top of

    1
       In its answering brief, the state did not develop any argument—beyond its
answer to the assignment of error—explaining why it viewed the error as harmless (although the state more fully explained why the error was harmless at oral
argument). We nonetheless have an independent obligation to assess whether an
error is harmless. State v. Sperou, 

, 

 (2019).
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her. She tried to push him away and told him to stop. During
that incident, defendant penetrated her vagina with his
penis. D reported that this was the first time that defendant
had raped her. In her CARES interview, D thought that it
had occurred in late summer 2018 when she was nine or 10.
She recalled that she and her family (including her mother’s
partner and his family) went to a lake the next day. After
that assault, D’s vaginal area hurt and she described it as
being red, like she had a rash. D also disclosed a second
rape that occurred in defendant’s room of the second apartment. During that assault, defendant grabbed her wrist and
it hurt.
         After D’s interview with CARES, the investigating
detective, Anderson, spoke with D to clarify the timing of
the first rape. Anderson was confused by D’s recollection
that the first rape occurred in the summer of 2018. When
he had talked with D initially, she had disclosed that the
first rape occurred when she was nine or 10. But if D had
been nine or 10 the first time that defendant raped her, that
would have placed the first rape in 2014 or 2015, not 2018
as D had indicated during the CARES interview. In 2018, D
would have been approximately 13. D’s mother confirmed to
Anderson that D had told her that she got mixed up on dates
and that the lake trip that she was referring to was in 2014,
when she would have been nine or 10 years old.
        The state charged defendant with a number of sex
offenses.2 More particularly, the state charged defendant
with two counts of first-degree rape, one alleged to have
occurred by means of forcible compulsion when D was under
the age of 14 (Count 1),3 see ORS 163.375(1)(a), and the other
alleged to have occurred when D was under the age of 12
(Count 6), see ORS 163.375(1)(b). The state also charged
defendant with four counts of first-degree sexual abuse for
conduct alleged to have occurred on or about June 29, 2018:

    2
      The state charged defendant with an additional first-degree rape (former
Count 3) but ultimately dismissed that charge. Additionally, the court granted
defendant’s motion for judgment of acquittal on a charge of luring a minor (former
Count 7). The court, in instructions to the jury, then renumbered the counts. We
refer to the remaining counts as renumbered to avoid confusion.
    3
      The state also charged defendant with the lesser included offense of second-degree rape for the same incident (Count 2).
140                                                     State v. Meighan

one count for touching D’s vaginal area when she was under
the age of 14 (Count 3), one count of touching D’s breasts
when she was under the age of 14 (Count 4), and one count of
subjecting D to sexual contact with defendant’s penis when
she was under the age of 14 (Count 5). ORS 163.427(a)(A).
The state alleged that Count 7—touching D’s breasts when
she was under the age of 14—took place before the other
three counts, on or between July 31, 2008, and September 2,
2011 (Count 7).
         At trial, D very briefly testified about the abuse. She
described that defendant had touched her breasts when she
was living in the yellow house when she was four or five. She
also described two incidents of rape, both of which occurred
in the second apartment. She testified that before the lake
trip, defendant came into the room where she was, forcefully
removed her pants and underwear before removing his own,
and “put his private in my private.” She could not remember
what room she was in during that rape. She then testified
to another rape in which defendant penetrated her vagina
with his penis.4
         D’s mother also testified at trial. She explained
that D told her that defendant had first raped her the night
before a lake trip that the family took with the family of
D’s mother’s partner, when D was nine. That trip, according
to D’s mother, occurred in 2014. The family took another
lake trip in 2018, but it did not include her partner’s family.
She also testified that D told her some of the abuse occurred
when she was in the seventh grade.
         Defendant denied each of the allegations against
him and, during closing arguments, attacked what he perceived to be inconsistencies in D’s dates and descriptions of
the events.
        For its part, the state argued during closing arguments that Count 1, first-degree rape by forcible compulsion, was based on the incident where defendant raped D
and held down her wrists. In contrast, Count 6, first-degree
rape when D was under the age of 12, was based on the
rape that occurred the night before the lake trip. The state
   4
       The state also played the CARES interview during trial.
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emphasized that the rape charged in Count 6 was the first
time that defendant had raped D, followed by the second
rape involving forcible compulsion.5
         At the close of evidence, in addition to the “10 of 12”
concurrence instruction, the trial court gave the jury several
other instructions relevant to this claim of error. The court
instructed the jury that it had to find, as an element of the
offense of first-degree rape as alleged in Count 1, that defendant knowingly had sexual intercourse with D by means
of forcible compulsion. In contrast, the court instructed the
jury that to find defendant guilty of first-degree rape as
alleged in Count 6, it had to find that defendant knowingly
had sexual intercourse with D when she was under the age
of 12. The court also instructed the jury that, although the
state did not have to prove that the charged crime occurred
on a particular date, the jury did have to find that the crimes
occurred “on or about the date[s] alleged” in the indictment.
The jury unanimously found defendant guilty on each count,
as reflected in the verdict forms.
         However, as defendant points out on appeal, the
verdict forms do not reflect whether each juror agreed on
the factual occurrence underlying each conviction. He thus
asserts that the court’s failure to give a factual concurrence
instruction was harmful error. We conclude that, in light of
the victim’s testimony and the jury instructions, the error
was harmless beyond a reasonable doubt. State v. Scott, 

, 

 (2021) (in the context of a
nonunanimous jury instruction, the state has the burden to
demonstrate that error was harmless beyond a reasonable
doubt).
         An error is harmless beyond a reasonable doubt if
“the reviewing court is satisfied beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.” State v. Flores Ramos, 

, 478
    5
      Throughout the trial, the state referred to the forcible compulsion rape
as having occurred when D was in the seventh grade. That characterization is
apparently consistent with what D stated during her CARES evaluation. The
transcription of that evaluation is largely “inaudible” and, admittedly, parts of
the evaluation are difficult to hear because D was soft spoken. But the indictment
charged that act as having occurred in June 2018, when D would have been 13
and in the seventh grade.
142                                         State v. Meighan

P3d 515 (2020) (internal citation omitted). Conversely, the
failure to give a proper jury concurrence instruction is not
harmless when “jurors could have based their verdicts on
different occurrences.” State v. Teagues, 

, 

 (2016); see also Mellerio v. Nooth, 

, 

 (2016), rev den, 

 (2017)
(the error is not harmless if the evidence could lead a jury to
base their verdicts on different factual occurrences, resulting in a “mix-and-match verdict”). In answering the question whether the error is harmless, we consider the record as
a whole. State v. Cook, 

, 

 (2006).
         We conclude that the failure to give a unanimous
jury concurrence instruction in this case was harmless. At
oral argument, defendant conceded that it was unlikely that
the error was harmful with respect to Count 7—first-degree
sexual abuse for touching D’s breasts at the yellow house
when she was under the age of 14—and we agree. For that
count, the state alleged that defendant touched D’s breasts
between 2008 and 2011. D testified to only one instance
where defendant touched her breasts between 2008 and
2011—in the yellow house when she was four or five. That
age also corresponds to when D and her family lived in the
yellow house, from 2006 to 2011. Under the circumstances,
it is unlikely that the jury would have been confused about
the events underlying that charge.
         The same holds true for the rape charges (Counts 1
and 6). In defendant’s view, the inconsistencies in D’s statements about when the first rape occurred (2014 versus 2018)
created the risk of a “mix-and-match” verdict. However, the
evidence and the jury instructions demonstrate that such
a risk did not exist. As described above, the state charged
defendant with two counts of first-degree rape based on D’s
statements that defendant had raped her twice; however,
only one count (Count 6) required the jury to find that D was
under the age of 12. D testified to only one rape that could
have happened when she was under the age of 12: the 2014
assault that occurred the day before the lake trip. To be sure,
D told the CARES interviewer that the first rape happened
in 2018, which—if true—would mean that the first rape had
occurred when D was over the age of 12. D then testified at
trial that she had been confused about the date and that
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the first rape had happened in 2014, when she would have
been under the age of 12. By unanimously finding defendant
guilty of Count 6, the jury necessarily agreed to the underlying factual circumstance of that crime, namely, that the first
rape occurred in 2014, when D was under the age of 12. And,
because D only described one other rape, the second one that
involved forcible compulsion, there is little risk that the jury
was confused about the conduct constituting the other rape,
Count 1.6 Indeed, the jury unanimously found that defendant had engaged in forcible compulsion during that rape.
Further, our conclusion is buttressed by the state’s framing
of the two rapes: It made clear to the jury that Count 1 was
charged based on the rape involving forcible compulsion (the
holding of D’s wrists) and that Count 6 was based on the
rape that occurred before the lake trip in 2014.
         We reach the same conclusion with respect to the
remaining charges. With respect to Count 5—subjecting D
to sexual contact with defendant’s penis when she was under
the age of 14—D only described a single incident of defendant forcing her to touch his penis; thus, it was unlikely that
the jury would have been confused or disagreed as to the
factual occurrence underlying that charge.
         Finally, we conclude that the error is harmless with
respect to the two other sexual abuse charges related to
defendant touching the victim’s breasts and vaginal area
in the second apartment when she was under the age of 14
(Counts 3 and 4). The only evidence as to those crimes was
D’s statements that defendant touched her breasts and vaginal area in two of the three rooms in the second apartment
and that he also touched her breasts in the first apartment.
She identified the conduct “only generally” and her testimony
was “nonspecific and undifferentiated.” State v. Ashkins, 

, 

 (2015) (error held harmless where
    6
      We appreciate that our reasoning for why the error in giving a proper jury
concurrence instruction is harmless echoes, in some ways, the analysis for determining whether a jury factual concurrence instruction is necessary in the first
instance. Stated differently, it may be that some of the charges at issue here
did not require a concurrence instruction. However, both parties below agreed
that an instruction was needed for all charges—they simply disagreed over the
number required for concurrence—and no party on appeal has suggested that
concurrence instructions were not required for some of the charges. Accordingly,
we confine our analysis to whether any error was harmless.
144                                                       State v. Meighan

the victim’s testimony was “primarily nonspecific and undifferentiated; although she identified some occurrences at
particular locations, most of the occurrences were described
only generally, and without reference to a time frame”); see
also State v. Camphouse, 

, 

, adh’d
to as modified on recons, 

, 

 (2021),
rev den, 

 (2022).7 And defendant did not dispute
particular instances of that conduct; rather, he denied that
they happened at all and focused on attacking the perceived
inconsistencies in D’s statements. Ashkins, 

(error held harmless where the defendant denied that any of
the alleged incidents of abuse had occurred and focused on
inconsistencies in the victim’s statements as well as the lack
of direct evidence to support the charges); see also State v.
Theriault, 

, 

 (2019) (recognizing that a “sweeping denial” is more likely to make error
in failing to give a concurrence instruction harmless than a
defense theory that is particularized to challenging specific
incidents). Viewing the record as a whole, we conclude that
nothing indicates that the jury, in evaluating the evidence to
determine if defendant had committed those offenses, would
have reached one conclusion as to some of the occurrences
but a different conclusion as to others.
        We therefore conclude that the trial court’s error
in not giving a jury concurrence instruction was harmless
error.
        II. DIAGNOSIS OF CHILD SEXUAL ABUSE
          We now turn to defendant’s challenge to the diagnosis of child sexual abuse. After a medical doctor, Dr. Grigsby,
examined D at CARES, she diagnosed D with chronic child
sexual abuse. As he did below, defendant argues that the
    7
       We recognize that the harmless error analysis in both Ashkins and
Camphouse involved the state constitutional harmless error standard, i.e.,
whether there was little likelihood of the error affecting the verdict. We nonetheless find the considerations discussed in those cases informative in determining
whether the state met its burden under the federal harmless error standard. See
Ashkins, 

 n 15 (declining to consider the defendant’s argument that
the failure to give the jury concurrence instruction also constituted harmless
error under the federal standard, because the defendant had not argued that
there was a difference between the state and federal constitutional standards
that was “meaningful to the harmless error analysis in this case”).
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diagnosis fails to satisfy the test for admissibility set forth
in State v. Beauvais, 

, 

 (2015). We
review for errors of law. 

 (applying standard).
Additionally, because defendant renewed his objection to the
admission of the diagnosis at trial, we consider D’s testimony at both the pretrial hearing as well as during trial.
Cf. Beauvais, 

 (explaining that because the
defendant only challenged the denial of the pre-trial motion
in limine and did not object to the challenged testimony at
trial, the scope of review was limited to the record on the
motion in limine). Because we conclude that the trial court
correctly admitted the diagnosis, we affirm.
A. Factual Background
        Grigsby evaluated D based on a “concern for child
sexual abuse that had been chronic,” i.e., abuse that was
ongoing or had been more than a one-time assault. Grigbsy
reviewed D’s medical history and notes from an interview
with D’s mother and performed a physical examination of D.
         D’s mother told Grigsby that D had started wetting
the bed around age 10, in 2015, despite having been toilet
trained. D’s mother had D wear diapers to bed. Around the
same time, D started complaining about painful urination “in that same context of bedwetting.” D’s mother also
described that D was experiencing sadness, was having
anxiety attacks, and was “acting depressed” around the
same time that she started wetting the bed.
         Grigsby’s review of D’s medical history revealed
that D had received medical care on three separate occasions for urinary tract infections, vaginal pain, and painful
urination in October 2015, January 2016, and January 2017.
Grigsby noted that the medical records showed that D was
wetting the bed around that same time, starting when she
was about 9.
         Grigsby’s physical exam revealed an area of hyperpigmentation—or an area of skin that was darker than
the surrounding area—at the base of D’s right labia. The
skin also appeared thinner than the surrounding skin.
Additionally, D had bacteria in her urine at time of the medical evaluation.
146                                                        State v. Meighan

          At trial, Grigsby described at length the significance of her findings and how they led to her diagnosis of
chronic child sexual abuse. Grigsby testified that urinary
tract infections can be a “consequence or as a sequela of
some sort of sexual contact.” More particularly, they can be
caused by sexual activity because bacteria transfers from
the person with whom the victim is having sex. Urinary
tract infections can be chronic and sometimes go away on
their own. Additionally, those infections can go undiagnosed,
especially in children; many times, children have bacteria
in their urine for some time before complaining about it.
Grigsby was unable to say how long D had had the urinary
tract infections, because it was possible that she simply had
not sought treatment. Grigsby noted that D’s mother had
told Grigsby that D had complained about vaginal pain but
it “didn’t always result in going to the doctor.”
          Grigsby testified that pain with urination is a significant symptom because when a “child void[s] after sexual contact in those areas, they can actually have pain and
burning.” The sexual contact can create a micro-trauma,
or an inflammation of areas of the vagina and around the
urethra, which can cause pain with urination. Grigsby also
noted that bedwetting after having been toilet trained can
reflect stress in the child’s environment “or something significant could have happened in the family.” Grigsby acknowledged that the painful urination and bedwetting can have
causes other than sexual abuse but that they were “concerning as a whole” in corroborating a potential sexual trauma,
“especially if there’s a disclosure from the child.”
          Grigsby also explained the significance of the hyperpigmentation that she observed on D’s labia. She described
the finding as “non-specific, but something you don’t typically see in an exam of a child,” which caused Grigsby to
categorize the finding as “abnormal.”8 Hyperpigmentation
    8
       Grigsby explained that a “non-specific finding” is one that is not diagnostic
but is “something that I can’t ignore.” A diagnostic finding is “very weighty things
that even without a child’s disclosure,” Grigsby would have to call DHS or law
enforcement. Examples include a pregnant minor, lab results that contain semen,
or a complete transection of the hymen. Grigsby, who has been doing these kinds
of exams since 2014, has seen a diagnostic finding in less than 25 of her cases.
The majority are “normal and then there are occasionally children like [D] that
have a finding that it’s not normal.”
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is most commonly caused by “post-inflammat[ion]” and it
suggests healing from an injury. Thus, it can be the result
of a penetrative injury. Hyperpigmentation can have other
causes—many people of color have hyperpigmentation.9
Commonly, that hyperpigmentation presents as symmetrical, but in D, the hyperpigmentation occurred in just one
small area. Thus, it was different than what Grigsby generally sees in people of color. Grigsby did not see anything
in D’s history that would have explained the finding, such
as an accidental or straddle injury. Grigsby explained that
she interpreted the hyperpigmentation in the context of D’s
disclosures of abuse.

        Grigsby also observed that the skin around the spot
of hyperpigmentation was thinner and that it was “definitely
abnormal from the remaining skin[.]” That finding, while
again nonspecific, was a finding that made her concerned
that there had been a prior injury there.

         That constellation of observations led Grigsby to
diagnose D as suffering from chronic child sexual abuse:
“[W]ith a reasonable degree of medical certainty, that was
my diagnosis, based on all that information” that she had
received. The physical exam that revealed the hyperpigmentation and D’s history of bed-wetting, painful urination,
and vaginal pain were “all significant factors for [Grigsby’s]
diagnostic opinion.” Not only were they significant factors,
but the physical evidence corroborated the type of abuse that
D described, because “it was consistent with penile-vaginal
penetration.” Grigsby noted that there was nothing in D’s
history that would have “collectively” explained all of her
symptoms. Grigsby also noted that D’s sleep difficulties,
intrusive thoughts, nightmares, and suicidal ideation were
“consistent with the other kind of constellation of symptoms”
that she observed: “I did rely on all that information to come
to that conclusion.” Although each of the symptoms can be
associated with something other than sexual trauma, “they
were concerning as a whole to [Grigsby],” corroborating a
potential sexual trauma. That held particularly true in light
of D’s disclosures of abuse.

   9
       D is a child of color.
148                                         State v. Meighan

         Both pretrial and during trial, defendant objected to
the admission of Grigsby’s diagnosis. Defendant argued that
the diagnosis failed the test set forth in Beauvais because
the physical evidence did not corroborate the diagnosis. The
trial court concluded that, based on Beauvais, the diagnosis
was admissible. It focused its ruling on D’s urinary tract
infections, pain with urination, increased sadness, bedwetting, and hyperpigmentation. The court concluded that the
physical evidence corroborated Grigsby’s diagnosis, the doctor relied on the evidence in making her diagnosis, and the
diagnosis was not itself unfairly prejudicial to defendant.
Defendant now appeals from that ruling.
B.    Analysis
          The parties agree that the analytical framework
that we use to determine the admissibility of Grigsby’s
diagnosis is largely guided by Beauvais, so we begin there.
Or, perhaps more accurately stated, we start with State v.
Southard, 

, 

 (2009), the case that presaged the outcome in Beauvais. In Southard, the court considered whether a diagnosis of child sexual abuse, in the
absence of any corroborating physical evidence, was admissible. 

. The court concluded that the diagnosis was
relevant under OEC 401 and that the diagnosis was scientifically valid and thus admissible under OEC 702. 

. But the court also concluded that, in the absence
of corroborating physical evidence, the diagnosis was inadmissible under OEC 403 because the probative value was
substantially outweighed by the danger of unfair prejudice.

. The court explained that the diagnosis’s probative value was low because it did not tell the jury anything
that it could not determine on its own. 

. In contrast, the court found that the danger of unfair prejudice
was high, because the diagnosis—based primarily on the
assessment of the victim’s credibility—posed the risk that
the jury would not make its own credibility determination,
instead deferring to the expert’s “implicit conclusion that
the victim’s reports of abuse are credible.” 

.
        In Beauvais, the court began by noting that the case
presented a question that Southard foreshadowed but did
not answer: whether a diagnosis of child sexual abuse is
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admissible under OEC 403 when physical evidence of abuse
is present. 357 Or at 534. In Beauvais, the victim alleged
that the defendant had touched her vaginal area. Id. at 526.
A sexual assault nurse examined the victim and found redness, swelling, and abrasions on the victim’s vaginal area.
Id. at 526-27. The nurse referred the victim to the Kids
Intervention and Diagnosis Service Center (KIDS Center)
for a follow-up evaluation. Id. at 527. There, a doctor performed a physical examination and diagnosed the victim as
having been sexually abused. Id. She did so based on the
nurse’s findings and the victim’s history as gathered from
the victim and caregivers, among others. Id. at 528. As to
the physical findings made by the nurse, the doctor could not
find an alternate explanation other than sexual abuse. Id. at
529. The doctor also testified that the victim’s “core details”
were consistent as she described them to various parties and
that the victim provided multiple details about the assault.
Id. The doctor further testified that behavioral changes that
the victim had experienced since the assault—a change
in appetite, not wanting to sleep by herself, sadness, and
withdrawal—were relevant to her evaluation. Id. at 530.
“Based on her overall evaluation, [the doctor] testified that
she had concluded to a reasonable degree of medical certainty that [the victim] had been sexually abused.” Id.
         On those facts, the court turned to the question
presented, viz., whether a diagnosis of child sexual abuse
accompanied by physical findings compels a different result
than Southard. Id. at 534. It began by rejecting the idea
that the presence of physical evidence will always render
a diagnosis of sexual abuse admissible. Id. at 536. Rather,
whether such evidence is admissible depends on the extent
to which the diagnosis “tells the jury something that it could
not determine as well on its own and the risk that the trier
of fact will improperly defer to what it reasonably could perceive to be a credibility-based evaluation by the expert.”
Id. at 537. Instead, the physical evidence “must have more
than a speculative or insubstantial connection to the diagnosis; that is, the evidence must meaningfully corroborate the
diagnosis.” Id. Moreover, the expert must “significantly rely”
on the physical evidence in making the diagnosis to ensure
that the evidence “is neither incidental nor tangential to the
150                                         State v. Meighan

diagnosis.” Id. at 537-38. Finally, the diagnosis must involve
a complex factual determination “ ‘that a lay person cannot
make as well as an expert.’ ” Id. at 538 (citing Southard, 

). When those foundational requirements are met,
the “probative force of the diagnosis is more likely to derive
from the strength of the causal connection between the
physical findings and the diagnosis rather than from the
expert’s assessment of the child’s credibility.” 

         Applying that test, the court in Beauvais concluded
that the diagnosis was admissible. Id. at 540. The victim
reported that the defendant had touched her vaginal area,
and the examination report described redness, swelling, and
abrasions for which the doctor could discern no other cause.
Id. at 538-39. The doctor testified that she had considered
the physical findings in reaching her diagnosis. Id. at 539.
And finally, the court concluded that the testimony about
the significance of the physical evidence involved application of specialized medical knowledge to diagnostic facts,
which are not criteria that lay jurors are expected to use.
Id.
         Here, defendant argues that two of those three
Beauvais foundational requirements are not satisfied: In
defendant’s view, the physical evidence does not meaningfully corroborate the abuse and Grigsby did not “significantly” rely on the physical evidence in making the
diagnosis. Defendant addresses two pieces of physical evidence—the hyperpigmentation and the urinary tract infections—and argues that each, standing alone, fails those two
Beauvais elements.
          A threshold difficulty with defendant’s argument is
that Grigsby repeatedly testified that it was the constellation of physical evidence that led to her diagnosis of chronic
child sexual abuse. Framed slightly differently, Grigsby did
not testify, for instance, that urinary tract infections alone
or the hyperpigmentation alone would have led her to diagnose D with chronic child sexual abuse. Rather, she testified
no fewer than four times that her diagnosis was based on
“all th[e] information” that she received, that she viewed the
physical evidence “collectively,” and that the evidence was
“concerning as a whole[.]”
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         We thus consider, as Grigsby did, whether the constellation of physical evidence that Grigsby observed (or
learned about from D’s medical history) meaningfully corroborated the abuse and whether Grigsby significantly relied
on it. Taking that second question first, our discussion above
largely disposes of defendant’s argument. We understand
the “significantly rely” requirement of Beauvais to protect
against the risk that the expert simply relied on the victim’s
statements, rather than on the physical evidence, in reaching the diagnosis, a risk that in turn creates the potential
that the jury will simply defer to a credibility-based evaluation by the expert. To meet that requirement, the evidence must be more than “incidental” or “tangential” to the
diagnosis. Beauvais, 

. Here, Grigsby was clear
throughout her testimony that she relied on all the physical evidence, in addition to D’s statements and her mother’s
statements, in reaching the diagnosis. See State v. Ovendale,

, 

 (2012), rev den, 

(2013) (evidence that the victim defecated on the floor after
the alleged sodomy, which the examining nurse described
as “interesting and somewhat concerning,” was admissible
because the nurse relied on both that physical evidence and
the victim’s statements).10 And the physical evidence that
she observed was in no way peripheral to her diagnosis: She
described the evidence of the various physical and emotional
symptoms as being “all significant factors” in her diagnosis.
Simply put, the risk identified in Beauvais—that the jury
will merely defer to the expert’s assessment of the victim’s
credibility—was not present here. Cf. State v. Lovern, 

, 

 (2010) (the trial court plainly erred in
admitting diagnosis of child sex abuse because the examining doctor expressly testified that the evidence neither confirmed nor refuted the diagnosis).
         In arguing otherwise, defendant asserts that two
parts of Grigsby’s testimony show that she did not significantly rely on two pieces of physical evidence, the urinary
tract infections and the hyperpigmentation. Defendant points
to the fact that D was treated for urinary tract infections
    10
       As defendant observes, although Ovendale predates Beauvais, we applied
a similar test in Ovendale to the one ultimately adopted by the Supreme Court in
Beauvais.
152                                          State v. Meighan

between October 2015 and January 2017, yet defendant did
not live with the family or have contact with D between
January 2015 and April 2016. Nonetheless, Grigsby said
that that information would not “change [her] opinion[.]”
Defendant seizes on that statement and argues that it
demonstrates that Grigsby did not significantly rely on the
urinary tract infections in reaching her diagnosis.
         But that argument ignores the context of Grigsby’s
answer, which explained that the information about when
defendant had contact with D would not change her opinion because the urinary tract infections could have begun
earlier and gone undiagnosed. As she explained, children
often have those infections for “a long time” before they start
complaining about symptoms and she did not know
   “how long [D] had these urinary tract infections without
   getting treatment, because she did have these other like
   vaginal pain and things like that.
   “So it may have been that, you know, she didn’t go to the
   doctor for these things, because her mom reported she did
   complain about those things, and the bed-wetting, but that
   it didn’t always result in going to the doctor.”
Thus, although Grigsby was not able to definitively place a
time frame on when D’s urinary tract infections may have
started, that does not mean that she did not significantly
rely on that physical evidence in reaching her diagnosis. To
the extent that defendant believed that the timing of the
diagnosed urinary tract infections was significant vis à vis
D’s contact with defendant, he was welcome to—and indeed,
did—argue that point to the jury; it does not, however, render Grigsby’s testimony inadmissible.
         Similarly, defendant focuses on Grigsby’s testimony
that her discovery of the hyperpigmentation on D’s labia
did not “change [her] opinion” to argue that Grigsby did not
significantly rely on the hyperpigmentation. Again, the full
context of Grigsby’s testimony shows that she did rely on
that finding:
      “[Counsel]: Is your testimony that this focal area of
   mild and distinct hyperpigmentation was critical or an
   essential component of your diagnosis?
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       “[Grigsby]: So I can’t remember all the things I was—
   that we listed. I guess when you asked me that question,
   there was a lot of information that came under consideration in making the diagnosis, and that’s like looking at
   questioning anything else that this could be, and I would
   say that the physical exam for me was consistent with all
   the other information that had come in.

      “…

       “[Counsel]: Let me see if I understand what you are
   saying. So, you’re saying the totality of the circumstances
   all pushed you in one direction and this finding did not
   push in some other direction and so it kind of fell within
   the totality of what you were considering?

      “[Grigsby]: Yeah. It didn’t change my opinion. I mean,
   to—when I found that, I think that I wasn’t expect—I was
   expecting to find, you know, normal, but it was abnormal
   and non-specific.

      “So yes, I considered it—but I also had heard the interview, you know, and so—and had also heard all the other
   information.

      “So, I think with a reasonable degree of medical certainty, that was my diagnosis, based on all of that
   information.”

In short, the whole of Grigsby’s testimony demonstrates that
the trial court correctly found that Grigsby significantly
relied on the physical evidence.
         We also disagree with defendant that Grigsby’s
diagnosis failed to satisfy the first Beauvais element, that
the physical evidence “meaningfully corroborate” the abuse.
To be meaningfully corroborative, the evidence “must have
more than a speculative or insubstantial connection to the
diagnosis.” Beauvais, 

. Grigsby expressly testified that the physical evidence corroborated the abuse, inasmuch as it was consistent with penile-vaginal penetration.
To be sure, as defendant points out, Grigsby also testified
that the physical evidence that she observed could have
causes other than sexual abuse. But that does not mean, as
defendant suggests, that the evidence is not meaningfully
154                                         State v. Meighan

corroborative. See State v. Vidal, 

, 

 (2011), rev den, 

 (2012) (although the
examining nurse testified that the hymenal irregularities could be a “variation of normal” or “something besides
abuse[,]” that evidence was nonetheless corroborative of the
victim’s disclosures of abuse). What Beauvais requires is
that a child’s report of abuse be corroborated by physical
injuries or symptoms that an expert knows to be consistent
with the alleged abuse; then, the diagnosis does not infringe
on the role of the jury. Conversely, what Beauvais does not
require is that the physical evidence can be corroborative
only if it has a single cause—sexual abuse or assault. Given
Grigsby’s repeated explanations about how the physical evidence that she observed was connected to her diagnosis, the
trial court correctly concluded that the evidence meaningfully corroborated her diagnosis.
        Affirmed.
        AOYAGI, P. J., concurring.
         I agree with the majority’s disposition. However,
I write separately to discuss the first assignment of error,
regarding admission of Dr. Grigsby’s medical diagnosis of
child sexual abuse.
         In State v. Southard, 

, 

(2009), the Supreme Court held that a medical diagnosis of
child sexual abuse that lacks corroborating physical evidence
is generally inadmissible under OEC 403, because the danger of unfair prejudice substantially outweighs the probative
value of such evidence. Six years later, in State v. Beauvais,

, 

 (2015), the court held that a
medical diagnosis of child sexual abuse that is corroborated
by physical evidence is sometimes admissible under OEC
403. Essentially, Beauvais imposes three requirements for
admissibility: (1) the physical evidence must “meaningfully
corroborate the diagnosis,” which requires something “more
than a speculative or insubstantial connection to the diagnosis”; (2) the expert must “significantly rely” on the physical evidence in making the diagnosis; and (3) the diagnosis
must involve a complex factual determination “that a lay
person cannot make as well as an expert.” 

 (internal quotation marks omitted).
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         The reasoning behind the Beauvais standard is
that, when those three requirements are met, the expert
“tells the jury something that it could not determine as well
on its own,” and there is less risk “that the trier of fact will
improperly defer to what it reasonably could perceive to be
a credibility-based evaluation by the expert.” Id. at 537. The
“probative force of the diagnosis is more likely to derive from
the strength of the causal connection between the physical
findings and the diagnosis rather than from the expert’s
assessment of the child’s credibility.” Id. at 538.
         Applying that standard to this record, I cannot say
that the majority is wrong to conclude that Grigsby’s testimony satisfied the Beauvais requirements, particularly in
light of how the standard was applied in Beauvais itself.
That is why I concur in the majority opinion. At the same
time, I question whether the danger of unfair prejudice does
not in fact substantially outweigh the probative value of
Grigsby’s diagnosis. In my view, when a medical diagnosis
of child sexual abuse relies primarily on a doctor’s assessment of the credibility of statements made by the child and
others—as appears to have been the case here—that diagnosis crosses into the impermissible territory of vouching,
even if there is some corroborative physical evidence. At a
minimum, I am concerned that the standard articulated in
Beauvais creates too low of a bar in application, even if it
makes sense in principle.
          Oregon has an extremely strong prohibition against
vouching. See State v. Salas-Juarez, 

, 

, rev den, 

 (2014) (recognizing that the
Oregon Supreme Court has “amplified” the importance of
the rule prohibiting vouching). “Because credibility determinations are the exclusive province of the jury, witnesses are
categorically prohibited from expressing a view on whether
another witness is ‘telling the truth.’ ” Davis v. Cain, 

, 

 (2020) (quoting State v. Middleton,

, 

 (1983)). That rule applies to
all witnesses, including experts. Middleton, 

(“[I]n Oregon a witness, expert or otherwise, may not give
an opinion on whether he believes a witness is telling the
truth.”). Indeed, it is such a strong rule that it can be plain
error for a trial court not to intervene to prevent testimony
156                                         State v. Meighan

that comments on another witness’s credibility. E.g., State v.
McQuisten, 

, 

 (1989).
         It is also well-understood in Oregon that jurors tend
to give greater weight to scientific evidence, which would
include expert medical diagnoses. See, e.g., State v. Henley,

, 

 (2018) (recognizing the
“significant persuasive value” that lay people give to evidence that is perceived to “rest on science”); State v. O’Key,

, 

 (1995) (“Evidence perceived by
lay jurors to be scientific in nature possesses an unusually
high degree of persuasive power.”).
         Considering those principles together, it is readily
apparent that vouching testimony by a doctor creates an
especially high risk of the jury ceding its role as the exclusive arbiter of credibility. Then add to the mix that the witness whose credibility is at issue is a child, that the trial
involves the emotionally charged issue of child sexual abuse,
and that the child’s credibility goes to the heart of the prosecution’s case. “In many cases where credibility is critical
to the outcome, even a single ‘vouching’ statement by a witness … with years of experience and training in the field
of child abuse prevention, can be given considerable weight
by the jury.” State v. Ross, 

, 

,
rev den, 

 (2015).
          Given the strong prohibition on vouching, the
greater weight that expert medical evidence carries with
juries, and the frequently vital role that witness credibility
has in child sexual abuse cases, I find it difficult to understand how a medical diagnosis of child sexual abuse that
relies primarily on a doctor’s assessment of the credibility
of the child and others is admissible under OEC 403. Even
if there is some physical evidence to corroborate the doctor’s
credibility assessment, the primary basis for the diagnosis
is still a credibility assessment. Vouching is not normally
rendered admissible by a witness’s explanation as to why
the witness believes someone to be truthful or untruthful,
even though such information would serve a corroborative
function.
       According to Beauvais, 

, when a
medical diagnosis of child sexual abuse meets its three
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requirements, the “probative force of the diagnosis is more
likely to derive from the strength of the causal connection
between the physical findings and the diagnosis rather than
from the expert’s assessment of the child’s credibility.” It is
true that a juror who is unpersuaded by some of a doctor’s
reasons for believing a child’s allegations (reasons related
to physical evidence) may be less likely to think that the
diagnosis is correct. But how does that shift the balance far
enough that the danger of unfair prejudice no longer substantially outweighs the probative value of the diagnosis?
         As this case and others demonstrate, it is not
unusual for physical conditions to have multiple possible
causes. See State v. Vidal, 

, 

(2011), rev den, 

 (2012) (evidence of hymenal irregularities that could be a “variation of normal” or “something
besides abuse” was nonetheless corroborative physical evidence of sexual abuse). That creates a real problem for OEC
403 purposes, at least when a medical diagnosis is founded
primarily on the doctor’s assessment of the credibility of the
child and others, and any physical evidence serves only a
corroborative function. Even setting aside the risk of confirmation bias, there is always going to be a risk that jurors
will rely on the credibility aspect of the diagnosis.
        To illustrate, consider a doctor who diagnoses X
with child sexual abuse, based primarily on statements by
X and her family, but also relying on some physical evidence
that could be unrelated but that the doctor considers corroborative. If a juror finds the doctor’s explanation of the
physical evidence persuasive, that makes it more likely that
the juror will accept the doctor’s entire diagnosis, including
the portion based on a credibility assessment. Conversely, if
the juror is unpersuaded that the physical evidence is corroborative, it does not necessarily follow that the juror will
disregard the entire diagnosis, which, after all, is based primarily on other information. It is not obvious why a medical diagnosis that does not rely on any physical evidence is
automatically inadmissible under OEC 403 (Southard), but
a medical diagnosis that relies on physical evidence without depending on it is admissible (Beauvais), even though
the jury is free to disregard the physical evidence and still
accept the diagnosis.
158                                           State v. Meighan

         In sum, I concur in the majority opinion because I
believe that its reasoning is consistent with Beauvais. At the
same time, I am concerned that, in application, the Beauvais
requirements do not actually ensure that the probative value
of a medical diagnosis of child sexual abuse—particularly a
diagnosis that is based primarily on the doctor’s credibility
assessments—is not substantially outweighed by the danger of unfair prejudice. In my view, a refinement of the standard, or at least the development of limiting instructions,
may be necessary to stay true to OEC 403 in these cases.
        Accordingly, I respectfully concur.