State v. Case

                                       485

          Argued and submitted August 30, affirmed October 4, 2023,
             petition for review denied March 7, 2024 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                  EDMOND LEMONT CASE, JR.,
                   aka Edward Lemont Case, Jr.,
                       Defendant-Appellant.
                     Polk County Circuit Court
                       17CR61289; A177244
                                   

    Defendant appeals from a judgment of conviction after a bench trial for one
count of first-degree sexual abuse, based on his digital penetration of the anus of
the three-year-old victim, IP. Defendant assigns error to the trial court’s rejection of his Confrontation Clause objections to the admission of testimony describing IP’s statements to a Liberty House physician during a medical examination
conducted shortly after the alleged sexual abuse, after the court determined
that IP’s statements were not “testimonial” and were therefore admissible under
OEC 803(18a)(b)(1). Defendant also assigns error to the denial of his motion for
a judgment of acquittal, asserting a lack of evidence as to defendant’s sexual
purpose in inserting his finger in IP’s anus, and to his mandatory sentence of 75
months’ imprisonment under ORS 137.700, as constitutionally disproportionate.
Held: In light of Liberty House’s close connection with law enforcement and in
the context in which IP made his statements, the Court of Appeals held that IP’s
statements must be regarded as testimonial, and that the trial court therefore
erred in admitting them. However, because the statements were duplicative of
statements that IP had made to his parents and that were corroborated by other
evidence, the court concluded that the error was harmless beyond a reasonable
doubt under the federal standard for harmless error, and that the error did not
require reversal. The court also rejected defendant’s challenge to the denial of his
motion for a judgment of acquittal, determining that the evidence was sufficient
to allow the trier of fact to determine that defendant’s fingering of IP’s anus had
a sexual purpose, and further concluded that defendant’s sentence of 75 months
was not constitutionally disproportionate.
    Affirmed.



    Rafael A. Caso, Judge.
   Rond Chananudech, 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.
486                                              State v. Case

   Jeff J. Payne, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   KAMINS, J.
   Affirmed.
Cite as 

 (2023)                                                 487

           KAMINS, J.
         Defendant appeals from a judgment of conviction
after a bench trial for one count of first-degree sexual abuse,
based on his digital penetration of the anus of the three-year-old victim, IP.1 The state filed a notice of its intent to rely on
IP’s hearsay statements describing the abuse to his parents
and to a Liberty House doctor under OEC 803(18a)(b), an
exception to the hearsay rule.2 IP, who was age eight at the
time of trial, did not testify at trial, because, after engaging in colloquy with IP, the court determined that IP was
“unavailable,” in the sense that he lacked any memory of the
events on which the charge was based. But over defendant’s
Confrontation Clause objections,3 the trial court admitted
testimony describing IP’s statements to his parents and to a
Liberty House physician during a medical examination conducted shortly after the sexual abuse. The court determined
that the statements were not “testimonial” and that the
statements therefore could come in under OEC 803(18a)(b)(1).
Defendant assigns error to the trial court’s ruling as to the
statements made to the Liberty House doctor, as well as to
the denial of defendant’s motion for a judgment of acquittal
and to his sentence. We conclude that the trial court did err
in admitting the statements through testimony of a Liberty
House forensic examiner, but that the error was harmless.
We further reject defendant’s other assignments and therefore affirm.
       We summarize the evidence at trial. IP and his
younger sister AP were at their babysitter’s house while
     1
       We note that this is defendant’s second appeal. See State v. Case, 

, 

 (2021) (reversing and remanding defendant’s conviction of
first-degree sexual abuse on the state’s concession under Ramos v. Louisiana,

, 

, 

 (2020)).
     2
       OEC 803(18a)(b) allows the admission of hearsay statements concerning
certain acts of abuse as defined in ORS 107.705 or ORS 419B.005, including child
sexual abuse. It applies to “a child declarant, a declarant who is an elderly person
as defined in ORS 124.050[,] or an adult declarant with a developmental disability.” OEC 803(18a)(d). It applies only if either the declarant “testifies at the
proceeding and is subject to cross-examination,” or the declarant “is unavailable
as a witness” and certain criteria are met.
     3
       The Sixth Amendment’s Confrontation Clause, which is binding on the
states through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses
against him.”
488                                                           State v. Case

their parents were at work. After the children had gone to
sleep, the babysitter, with the parents’ permission, left her
own children as well as IP and AP in the care of defendant,
who was the babysitter’s father and who was living in the
home. When IP and AP’s father, Joseph, came to pick up the
children, he found IP awake in bed and rocking back and
forth, upset, and crying, and having urinated in his pants,
which the parents testified was unusual, because IP was toilet trained and could go to the bathroom on his own.
         Two days later, as the children were settling down
for their nap, AP reported to the children’s mother, Sarah,
that IP was putting his finger in her butt; Sarah observed IP
putting his finger through AP’s diaper and told IP, “We can’t
be doing that.” IP responded, “but grandpa did this to my
butthole,” 4 gesturing with one finger in a circular motion.
         Sarah became concerned that IP had been sexually
abused and reported the interaction to Joseph. Joseph testified that he sought to determine who had engaged in that
contact with IP and that, later that day, on Joseph’s request,
Sarah created a collage on her phone of three photos, IP’s
two biological grandfathers and defendant. Joseph showed
the collage to IP and asked him something “along the lines
of ‘Which grandpa did it?’ ” IP pointed to defendant.
          Sarah contacted the police, who did not interview IP
but told the parents not to discuss the matter with IP and to
schedule an appointment for an evaluation of IP at Liberty
House. Before the scheduled appointment with Liberty
House, Sarah took IP to the emergency room and to the family’s doctor, who did not identify any physical signs of abuse.
        In evaluating IP, Liberty House determined that
IP was too young to participate in a forensic interview. But
a Liberty House doctor conducted a medical examination,
and Holly Williams, who was then a forensic examiner for
Liberty House, observed the examination and took notes,
which she sent in a report to the Salem Police Department.
       The state called Williams as a witness at trial.
Williams described her educational background, which
    4
      It is undisputed that defendant is not IP’s grandfather, but that “grandpa”
is how the babysitter’s children and IP referred to him.
Cite as 

 (2023)                                             489

includes a master’s degree in counselling, and her years of
work experience with Liberty House, which includes several
years as a forensic examiner. Williams explained that she had
received training as a forensic examiner from Child Abuse
Response and Evaluation Service (CARES) and was trained
to interview children with specific, nonleading questions.
         Williams also described the medical/well-child examination that Liberty House conducted with IP. She testified
that, during a medical/well-child examination, the doctor
asks the child neutral, open-ended questions about all parts
of the body, starting “usually at the top”:
   “Start at the head, and they just go down. And they say
   things like, ‘Has something happened to your head?’ ‘Has
   something happened to your eyes, to your ears,’ and they go
   all the way down.”
Williams testified that, in the doctor’s examination of IP,
the doctor asked IP whether anyone had hurt his ears, and
IP responded spontaneously, “Grandpa put his finger in
my butt.” Williams opined that IP likely blurted out that
response because it was on his mind. She testified that,
seeking clarification, the doctor asked IP, “Who?” IP replied,
“Grandpa did it.” The doctor asked, “Where?” IP held up
his right index finger and wiggled it in a circular motion.
When asked what it felt like, he answered, “In my butt.”
The doctor’s physical examination of IP did not result in any
unusual findings.5
   5
      Williams described the medical examination from her notes:
        “[Prosecutor]: Okay. And again, what’s the purpose of the medical exam?
        “[Williams]: It’s to assess the child’s health and well-being. And the
   whole evaluation is to assess a child for possible recommendations for their
   health and safety.
        “[Prosecutor]: Okay. So moving then to the specific medical exam. Do you
   recall, based on your recollection of—or refreshing your recollection of your
   report, what [IP] said during that exam?
        “[Williams]: Yes. [The doctor] had asked if—what did she—said—asked
   if someone had hurt his ears. And he responded by saying, ‘Grandpa put his
   finger in my butt.’
        “[Prosecutor]: Okay. Now, is that—is that unusual that a child of that
   age would blurt something out like that?
        “[Williams]: No.
        “[Prosecutor]: Okay. And do you know, why is that, on your—based on
   your training and experience?
490                                                          State v. Case

         Defendant raised a Confrontation Clause objection
to Williams’s description of IP’s statements to the doctor.
The trial court rejected the objection. In addition to testimony from Williams, the court heard testimony from IP’s
parents, who described IP’s statements and his references
to “grandpa,” as well as changes in IP’s personality after the
abuse, from a caring, loving child to an aggressive, angry,
and scared child who was afraid to take off his clothes. The
court also heard testimony from IP’s babysitter, who said
that she had little memory of the night, from detectives who
had investigated the case, and from a psychologist, who testified on behalf of defendant that interviews of children by
untrained persons often are suggestive and that parents
often underestimate the influence they have on a child’s
statements.
       “[Williams]: Well, it was on his mind. He may have been ready. He
   wanted to tell somebody. I do remember reading here, too, that he came back
   with us easily, so he separated from his mother easily. So he may have just
   been ready. Some kids are; some kids aren’t.
       “[Prosecutor]: Okay. And then were there more questions asked?
       “[Williams]: Yes. [The doctor] then asked him ‘Who?’ because who she
   wanted to have clarification. And he said, ‘Grandpa did it.’
       “Then she asked him ‘Where?’ And he held up his right hand—his right
   index finger—and wiggled it in kind of a circular motion.
       “[Prosecutor]: Had she asked him to demonstrate anything?
       “[Williams]: No.
       “[Prosecutor]: Okay. Did he—did she ask anything further?
       “[Williams]: Yeah. She asked what it felt like when grandpa put his finger in [IP’s] butt, and he said, ‘In my butt.’
       “[Prosecutor]: All right. In your—in your training and experience, is
   there effect—is there an effect on a child when talking about their—the body
   context when going through those questions like that? Does that mean anything for a young child?
       “[Williams]: Well, part of the reason that we ask those extra questions,
   too, in the exam is because, for young children, they respond better if they
   have concrete context for why questions might be being asked.
       “So since she’s already talking about the body, that makes sense to him
   to make those sorts of statements.
       “[Prosecutor]: Okay. Would that—in your training and experience, would
   that apply also then when—if a child was blurting something out when a—
   when a parent was asking or talking about body or private areas?
       “[Williams]: Yes.
       “[Prosecutor]: Does that make sense? Okay. And did you feel that he was
   able to comprehend the questions he was being asked?
       “[Williams]: Yes.”
Cite as 

 (2023)                             491

         In his first assignment, defendant challenges the
admission, over his objection, of Williams’s testimony describing IP’s statements to the Liberty House doctor. Defendant
bases his argument first on Crawford v. Washington, 

, 

, 

 (2004), in which the Court
explained that “witnesses,” under the Confrontation Clause,
are those “who bear testimony,” and that “testimony” is “a
solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” 

 (internal quotation marks and alteration omitted). The Court concluded in
Crawford that the Sixth Amendment of the United States
Constitution prohibits the introduction of testimonial statements by a non-testifying witness, unless the witness is
“unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” 

.
         Defendant asserts that IP’s statements to the
Liberty House doctor were testimonial and therefore subject to Confrontation Clause protection under Crawford.
Defendant argues that determining whether statements are
testimonial depends on the context in which they are made,
which includes an examination of both the declarant and
the examiner. Although defendant acknowledges that, as
the trial court found, IP would not have intended his statements to be testimonial, he asserts that IP’s statements
to the physician were nevertheless testimonial in nature,
because they were elicited for purposes of a potential criminal investigation of defendant. Acknowledging that Liberty
House is not a part of law enforcement, defendant nonetheless contends that Liberty House acted on behalf of the
police. In support of his contention that the Liberty House
examination was at least in part for purposes of possible
prosecution of defendant, defendant cites Williams’s presence during the examination and the sharing of reports and
information between Liberty House and the police.
        Defendant notes further that in State ex rel Juv.
Dept. v. S. P., 

, 

 (2009), the
Oregon Supreme Court addressed the same issue in the
context of CARES medical examinations. There, the court
held that “law enforcement involvement in CARES is pervasive, and that CARES evaluations serve a forensic purpose
492                                            State v. Case

in addition to any diagnostic purpose.” Thus, the court concluded, the statements of a three-year-old child to a CARES
doctor and social worker were testimonial and subject to
Confrontation Clause protection. See also State v. Moreno-Garcia, 

, 

 (2011); State
v. Norby, 

, 

 (2008) (holding that
child’s statements to CARES physician were testimonial
where the child was referred to the clinic, the clinic worked
closely with law enforcement, and it allowed police to monitor the interviews). Defendant contends that Liberty House
is like CARES, in that it works with law enforcement with
dual objectives of protecting children from abuse and assisting law enforcement, and that the Supreme Court’s holding in S. P. and our holdings in Moreno-Garcia and Norby
should apply with equal force to statements made by IP to
the Liberty House doctor.
         Although acknowledging that Liberty House is a
resource to law enforcement, the state responds that Liberty
House is not part of law enforcement. Rather, the state
asserts, it is a neutral resource for determining whether a
child has been abused and providing treatment. The state
emphasizes that IP’s Liberty House examination was a
medical examination, not a forensic examination, and that
IP’s statements were spontaneous in response to the doctor’s
neutral question. The state cites Williams’s testimony that
the purpose of the medical examination is not forensic but
“to assess the child’s health and well-being. And the whole
evaluation is to assess a child for possible recommendations
for their health and safety.”
         The state argues further that, particularly with
regard to statements by young children, our opinion in
Moreno-Garcia, and the Supreme Court’s opinion in S. P.
are likely superseded by the United States Supreme Court’s
opinion in Ohio v. Clark, 

, 

, 

 (2015), in which the Court, addressing the testimonial nature of statements made by a young child to his
teacher, said in dicta that the statement of a young child
will rarely be testimonial.
        The United States Supreme Court’s opinion in
Clark, decided after our own Supreme Court’s most recent
Cite as 

 (2023)                               493

formulation of the analysis, does shed light on the considerations applicable to a Confrontation Clause question. We
therefore take this opportunity to consider whether or to
what extent S. P. has been superseded by Clark, as well as
how those opinions guide our analysis of IP’s statements to
the Liberty House doctor.
         In Clark, a three-year-old child came to school with
visible bruises. Upon inquiry from the child’s teacher, the
child made statements that implicated the defendant in
abuse. The child was unavailable to testify at trial, and the
defendant raised a Confrontation Clause challenge to the
admissibility of the child’s statements to the teacher. 

.
         The Court in Clark surveyed its case law on the
Confrontation Clause. The Court referenced its opinions in
Davis v. Washington and Hammon v. Indiana, 

,

, 

 (2006), decided together,
which involved statements by victims of domestic abuse given
to law enforcement officers. In Davis, the challenged statements had been made to a 911 emergency operator during
and shortly after the abuser’s violent attack. In Hammon,
the victim’s statements were made to police after the victim
had been isolated from the abuser, and the statements were
memorialized in a “battery affidavit.” 

 In holding that the
statements in Hammon were testimonial but that the statements in Davis were not, the Court announced what came to
be known as the “primary purpose” test:
   “Statements are nontestimonial when made in the course
   of police interrogation under circumstances objectively
   indicating that the primary purpose of the interrogation is
   to enable police assistance to meet an ongoing emergency.
   They are testimonial when the circumstances objectively
   indicate that there is no such ongoing emergency, and that
   the primary purpose of the interrogation is to establish
   or prove past events potentially relevant to later criminal
   prosecution.”

. The “primary purpose” test, as enunciated in
Davis v. Washington and Hammon v. Indiana, requires a
determination whether the statements made to police were
to enable police assistance to meet an ongoing emergency or
494                                              State v. Case

to establish or prove past events potentially relevant to later
criminal prosecution. 

          The Clark Court recognized the primary purpose
test but refined it, explaining that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an
out-of-court substitute for trial testimony.” 

 at 358 (citing
Michigan v. Bryant, 

, 

, 

 (2011)). One consideration is the “informality of the
situation and the interrogation.” 

 A “formal station-house
interrogation,” like the questioning in Crawford, is more
likely to provoke testimonial statements, while less formal
questioning is less likely to reflect a primary purpose aimed
at obtaining testimonial evidence against the accused. Id.
at 246. In the end, the Court said, the question is not merely
whether the statements were taken or made in the context
of an emergency—the question is whether, in light of all the
circumstances, viewed objectively, the “primary purpose” of
the conversation was to “creat[e] an out-of-court substitute
for trial testimony.” Id.
         In concluding in Clark that there was no
Confrontation Clause exclusion in the circumstances before
it, the Court reasoned that the child had made the challenged statements to his teacher in the context of an ongoing emergency—viz., the need to determine who was abusing the child and whether it would be safe to send the child
home at the end of the day. Thus, the immediate concern
was to protect the child, to determine who was abusing him,
and to determine whether any other child was at risk. Id. at
246-47. For that reason, the court concluded, the primary
purpose of the conversation was not testimonial.
          The Clark Court added that its conclusion was “fortified” by the child’s age, because “[s]tatements by very young
children will rarely, if ever, implicate the Confrontation
Clause” given that “[f]ew preschool students understand
the details of our criminal justice system. … Thus, it is
extremely unlikely that a 3-year-old child … would intend
his statements to be a substitute for trial testimony.” Id. at
248.
Cite as 

 (2023)                                 495

          Additionally, the Court emphasized that the child’s
statements had been made not to law enforcement but to the
child’s teacher:
   “[A]lthough we decline to adopt a rule that statements to
   individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that [the
   child] was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner’s identity.
   Statements made to someone who is not principally charged
   with uncovering and prosecuting criminal behavior are
   significantly less likely to be testimonial than statements
   given to law enforcement officers. It is common sense that
   the relationship between a student and his teacher is very
   different from that between a citizen and the police. We do
   not ignore that reality. In light of these circumstances, the
   Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.”

 (internal citations omitted). Thus, the Court concluded, under all the circumstances, the child’s statements
to his teacher were not subject to the Confrontation Clause
exclusion and could be admitted at trial.
         In the state’s view, Clark dictates that IP’s statements here were not testimonial and were therefore admissible. In addition to arguing that Liberty House, like the
teacher in Clark, is not law enforcement, the state focuses on
the Court’s comment in Clark that the statement of a small
child will rarely, if ever, implicate the Confrontation Clause.
         Defendant acknowledges the Court’s comment in
Clark that a young child’s statements will rarely if ever
be testimonial, but points out that the comment is dicta.
Further, defendant notes, the Court did not say that a child’s
statements will never be testimonial. Defendant argues
that, as the Court said in Clark, the Confrontation Clause
analysis requires consideration of the context in which the
statements were made; the age of the child was but one consideration. An additional part of context is the questioner’s
identity. Clark, 

. Thus, defendant contends,
the fact that the child might not make statements for testimonial purposes does not preclude a determination that
the purpose of the medical examination was at least in part
496                                                State v. Case

investigative. Although defendant does not dispute that IP
could not have intended his statement as a substitute for
court testimony, defendant asserts that Liberty House’s
close connection with law enforcement means that the statements made in the context of the Liberty House examination are similar to those made to law enforcement outside of
the context of an actual emergency.
          Defendant’s argument finds support in both the
Oregon Supreme Court’s opinion in S. P. and this court’s
opinion in Moreno-Garcia. Although decided before Clark,
S. P. in fact foreshadowed the United States Supreme Court’s
holding in Clark. In S. P. the court said:
  “[W]hether a statement is testimonial depends on an objective analysis of the contents and circumstances of the statement, rather than an attempt to determine only the subjective intentions of the questioner or the declarant. We
  infer the purpose of an interrogation from the totality of
  the circumstances in which it took place and the results
  that it yielded.”

 (emphasis added); see also 

 (“[T]he
Court infers the purpose of the interrogation by objectively
examining the statements that the declarant makes and the
circumstances under which the declarant makes them.”);
United States v. Norwood, 

 (7th Cir 2020)
(whether statements made by child victims to sexual assault
nurse examiner are testimonial requires evaluating whether
the statements were made as part of an ongoing emergency,
the age of the victim, and the presence of law enforcement
at the examination). That context-specific approach is consistent with Clark. The state may be correct that the factor
of the age of the child was afforded greater weight in Clark
than in S. P., but the analysis remains sound. Our opinion
in Moreno-Garcia followed S. P. and adhered to that same
analysis. 

.
         Moving on to application of that analysis here, we
agree with defendant that, similar to the children’s statements in S. P. and Moreno-Garcia, IP’s statements to the
Liberty House doctor were made to a medical professional
who worked closely with law enforcement. The Salem
police had referred IP’s parents to Liberty House. Although
Cite as 

 (2023)                                  497

Williams, a forensic examiner, did not conduct a forensic
interview with IP, she did observe the medical examination
and take notes, and she testified that Liberty House regularly sends the assessment reports back to the referring
party, generally the police and the Department of Human
Services.
         Additionally, as defendant further contends, the
Liberty House medical examination of IP served a minimal
diagnostic or medical purpose, because the child had already
been examined in the hospital emergency department and
by his family physician and, unlike in Clark, there was no
ongoing emergency. Defendant did not live with IP, so the
Liberty House interview was not for the purpose of preventing immediate harm to IP. For those reasons, we agree with
defendant that, as in S. P. and Moreno-Garcia, IP’s evaluation at Liberty House served a forensic purpose in addition
to any diagnostic purpose, and that IP’s statements to the
Liberty House physician must be viewed as testimonial and
should have been excluded.
         We conclude, however, that the error in admitting
the evidence of IP’s statements does not require reversal.
Under Article VII (Amended), section 3, of the Oregon
Constitution, the judgment must be affirmed, “notwithstanding any error committed during the trial,” if the error
was harmless. In determining whether a federal constitutional error is harmless, the federal standard for harmless
error applies:
  “[T]he conviction will be upheld, ‘if the reviewing court
  may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’
  Delaware v. Van Arsdall, 

, 

,
  

 (1986) (describing the test announced in
  Chapman [v. California, 

, 

, 

 (1967)]). In reviewing the whole record to determine
  whether an error was harmless, the court should consider
  ‘the importance of the [improperly admitted] testimony in
  the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating
  or contradicting the testimony of the witness on material
  points, … and, of course, the overall strength of the prosecution’s case.’ Id. at 684.”
498                                            State v. Case

State v. Cook, 

, 

 (2006). Considering each of those factors, we conclude that the trial
court’s error was harmless beyond a reasonable doubt.
         IP’s statements to the Liberty House doctor were
duplicative of and corroborated by his identical statements
to his parents, who described the statements at trial without objection. Additionally, contrary to defendant’s contention, the identification of defendant as the abuser did not
depend solely on the credibility of IP’s statements. There
was evidence that IP had not been left alone in the care
of his biological grandfathers. Additionally, other evidence
corroborated IP’s description of the abuse to his mother and
father and its having occurred at the babysitter’s house,
including IP’s demeanor when his father picked him up and
IP’s subsequent changes in behavior and demeanor, including his conduct toward his sister, changes in temperament,
relapse in bed wetting, and unwillingness to have his clothes
removed.
         We are not persuaded by defendant’s argument
that the statements to the Liberty House doctor were qualitatively different from and more reliable than IP’s statements because they were spontaneous; IP’s statements to
his mother were also spontaneous.
          We reject defendant’s contention that Williams’s
description of IP’s statements to the doctor would have been
more persuasive to the factfinder because Williams was an
expert in forensic examination. Williams did not provide
her opinion as an expert in forensics. She simply related the
child’s statements; the only opinion she offered was that the
spontaneity of IP’s statement indicated that the topic was
on IP’s mind but that it did not make the statement more
reliable than the statement IP had made to his mother.
         Additionally, we are not persuaded by defendant’s
contention that Williams’s descriptions of IP’s statements
would have carried more weight with the factfinder because
the statements were made to a doctor. Williams’s testimony
was not like the erroneously admitted medical testimony
that we held in Norby could have been given more weight
by the factfinder and was therefore not harmless. In Norby,
Cite as 

 (2023)                            499

the statements of the child, A, were described by a CARES
physician who had examined the child and who, based on
both the physical examination and the child’s statements,
made a diagnosis of “highly concerning for sexual abuse.”
As here, other witnesses had also related the child’s statement of abuse. But the child’s statements to the physician
in Norby were more detailed; additionally, the statements
had aided the physician in Norby in making her diagnosis
of abuse. We held for those reasons, and considering the role
and status of the doctor, that, despite the cumulative nature
of the evidence, its admission was not harmless. 

.
          Unlike in Norby, or in State v. Alne, 

, 

 (2008), rev den, 

 (2009),
also cited by defendant, Williams was not the person who
had examined IP. She did not provide an opinion of sexual
abuse. She simply related statements that IP had made to
the doctor. Additionally, unlike in Norby and in Alne, IP’s
statements to the doctor, as related by Williams, were identical to those he had made to his mother. We do not conclude
that the factfinder would have attributed greater weight to
Williams’s description of IP’s statements to the doctor than
to the statements IP made to his parents.
         Finally, contrary to defendant’s suggestion, there is
no indication that the parents’ line-up of photos was suggestive of defendant or that the parents otherwise influenced
IP to identify defendant. We conclude that the erroneous
admission of IP’s statements to the Liberty House doctor
could not have affected the court’s verdict and that the trial
court’s error in admitting the evidence therefore was harmless beyond a reasonable doubt.
         We turn to defendant’s second assignment of error.
Based on his sexual misconduct with IP, defendant was
charged with first-degree sexual abuse, which a person commits if, among other things, the person “[s]ubjects another
person to sexual contact.” ORS 163.427(1)(a)(A). “ ‘Sexual
contact’ means any touching of the sexual or other intimate
parts of a person … for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6). In
his second assignment of error, defendant contends that the
500                                             State v. Case

trial court erred in denying his motion for a judgment of
acquittal, made on the ground that the evidence was legally
insufficient to prove that defendant acted with a sexual purpose when he inserted his finger into IP’s anus. Viewing the
evidence, as we must, in the light most favorable to the state,
we conclude that the sexual purpose of defendant’s conduct
can reasonably be inferred from the sexual nature of the
contact itself, and that a rational trier of fact, making reasonable inferences, could have found that the state proved
defendant’s sexual purpose beyond a reasonable doubt. See
State v. Hall, 

, 

 (1998) (stating
standard of review).
         We move on to defendant’s third assignment of
error. Defendant’s conviction was subject to a mandatory
sentence of 75 months’ imprisonment under ORS 137.700.
Defendant asked the court to impose a lesser sentence, see
ORS 137.712(1) (authorizing a trial court to impose a lesser
sentence for first-degree sexual abuse if justified by a substantial and compelling reason), contending that a 75-month
sentence is disproportionate under the Oregon and United
States constitutions.
         A trial court is permitted to depart from the
mandatory-minimum 75-month prison sentence requirement if it finds that the sentence would be unconstitutionally
disproportionate, that is, if the court finds that a sentence
would “shock the moral sense” of reasonable people. State
v. Rodriguez/Buck, 

, 

 (2009); State v.
Wheeler, 

, 

 (2007). Rodriguez/
Buck established three factors to be considered in making
that determination: “(1) a comparison of the severity of the
penalty and the gravity of the crime; (2) a comparison of
the penalties imposed for other, related crimes; and (3) the
criminal history of the defendant.” 

. Here, each
of the factors weighs against a lesser sentence. The gravity of defendant’s conduct, penetrating the anus of a three-year-old child who was entrusted to his care, was severe.
Defendant’s sentence is comparable to sentences imposed for
other related crimes. See, e.g., State v. Camacho–Garcia, 

, 

 (2014), rev den, 

 (2015)
(75-month sentence for first-degree sexual abuse conviction
Cite as 

 (2023)                             501

resulting from touching of breasts of 12-year-old girl not disproportionate). Finally, defendant has a long criminal history. Considering those factors, we conclude under the circumstances that defendant’s 75-month sentence, although
lengthy, is not so disproportionate as to shock the moral conscience of all reasonable persons.
        Affirmed.