                                                                Filed: November 29, 2012

              IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,
                                                                    Respondent on Review,
       v.

LUIS SANCHEZ-ALFONSO,
                                                                      Petitioner on Review.

                      (CC C051693CR; CA A135246; SC S059458)

       En Banc

       On review of the Court of Appeals.*

       Argued and submitted June 12, 2012.

        Bronson D. James, JDL Attorneys, LLP, Portland, argued the cause and filed the
brief for petitioner on review.

      Anna Joyce, Solicitor General, Salem, argued the cause and filed the brief for
respondent on review. With her on the brief was John R. Kroger, Attorney General.

       WALTERS, J.

       The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit court for further proceedings.

      *Appeal from Washington County Court, Suzanne Upton, Judge. 238 Or App 160,
241 P3d 1194 (2010).
 1                 WALTERS, J.

 2                 In this criminal case, we consider whether a physician's conclusion that

 3   defendant physically had abused a child met the requirements for admissibility of

 4   scientific evidence. We hold that it did not, that the trial court erred in admitting the

 5   evidence, and that the error was not harmless. Consequently, we reverse defendant's

 6   convictions and remand for further proceedings.

 7                 The child in this case, C, was approximately 18 months old when he arrived

 8   at the emergency room with multiple injuries, including a golf-ball-sized lump on his

 9   forehead and a fractured skull. The state accused defendant of causing C's injuries and

10   charged him with two counts of criminal mistreatment and first- and third-degree assault.

11   To prove first-degree assault, the state had to show that defendant had caused C "serious

12   physical injury," defined as injury that "creates a substantial risk of death." ORS

13   163.185,1 ORS 161.015.2

14                 At trial, defendant acknowledged that he had caused C's forehead injury but

15   claimed that he had done so accidentally and that that injury had not created a

16   "substantial risk of death." As to C's more serious injury -- the skull fracture -- defendant
            1
                   ORS 163.185 provides, in part:
                  "(1) A person commits the crime of assault in the first degree if the
            person:

                   "(a) Intentionally causes serious physical injury to another by means
            of a deadly or dangerous weapon[.]"
            2
                   ORS 161.015(8) provides, in part:
                   "'Serious physical injury' means physical injury which creates a
            substantial risk of death[.]"


                                                   1
 1   asserted that it was not he, but C's aunt, who was the responsible actor.

 2                 The state called a physician employed by CARES Northwest, a child abuse

 3   assessment center, as one of its witnesses. Over defendant's OEC 7023 and OEC 4034

 4   objections, the trial court admitted the physician's testimony and her written report

 5   diagnosing C as victim of child abuse and concluding that "[defendant] clearly caused

 6   [C's] injuries" and that "[C] was physically abused by [defendant]." The jury convicted

 7   defendant of third-degree assault and two counts of criminal mistreatment. The jury

 8   acquitted defendant on the charge of first-degree assault, but found him guilty of the

 9   lesser-included offense of second-degree assault. Like first-degree assault, second-

10   degree assault requires a finding that the inflicted injury created a substantial risk of

11   death. ORS 163.175;5 ORS 161.015(8).

12                 On appeal, the Court of Appeals affirmed defendant's convictions. State v.



            3
                   OEC 702 provides:
                    "If scientific, technical or other specialized knowledge will assist the
            trier of fact to understand the evidence or to determine a fact in issue, a
            witness qualified as an expert by knowledge, skill, experience, training or
            education may testify thereto in the form of an opinion or otherwise."
            4
                   OEC 403 provides, in part:
                   "Although relevant, evidence may be excluded if its probative value
            is substantially outweighed by the danger of unfair prejudice[.]"
            5
                   ORS 163.175 provides, in part:
                   "(1) A person commits the crime of assault in the second degree if
            the person:

                  "(a) Intentionally or knowingly causes serious physical injury to
            another[.]"


                                                    2
 1   Sanchez-Alfonso, 238 Or App 160, 162, 241 P3d 1194 (2010). The court separately

 2   considered the two aspects of the physician's diagnosis -- that C had been physically

 3   abused, and that defendant had been the perpetrator of that abuse. The court concluded

 4   that the former was scientifically valid and admissible, but declined to decide whether the

 5   same was true for the latter. Id. at 167-68. Even if the trial court had erred in admitting

 6   the physician's conclusion that defendant had caused C's injuries, the Court of Appeals

 7   reasoned, the error was harmless because defendant "never posited that anyone other than

 8   defendant himself caused the physical injuries." Id. at 170. The issue "[a]t the heart" of

 9   the case, the court opined, was defendant's mental state when he injured C; the

10   challenged evidence, by contrast, "went to a part of the case that was not meaningfully at

11   issue, namely, defendant's role as the causal agent of those injuries." Id.

12                 We allowed defendant's petition for review. Defendant contends that the

13   physician's diagnosis that "[C] was abused by [defendant]" was not admissible under

14   OEC 702 and OEC 403 and State v. Brown, 297 Or 404, 687 P2d 751 (1984), State v.

15   O'Key, 321 Or 285, 899 P2d 663 (1995), and State v. Southard, 347 Or 127, 218 P3d 104

16   (2009). Although the state acknowledges that the physician's conclusion that defendant

17   had been the perpetrator of C's injuries was not admissible under those standards, it

18   argues that that conclusion was not a part of the physician's medical diagnosis. Rather,

19   the state asserts, the physician was only relating a fact that she considered to be

20   undisputed at the time of her report -- that defendant was the sole individual present when

21   C was injured. The state contends that the admission of the physician's conclusion was

22   harmless because the jury would have considered the physician's testimony in that light.

                                                   3
 1                 The facts necessary to our review of the parties' arguments are undisputed.

 2   On the evening of May 12, 2005, defendant was living in an apartment with his girlfriend

 3   (mother) and C, his girlfriend's approximately 18-month-old son. C's aunt (aunt) also

 4   frequently spent time in the home. Mother was feeling ill and asked aunt and aunt's

 5   boyfriend to take her to the hospital, leaving C in defendant's care. Mother stayed at the

 6   hospital overnight. Early the next morning, defendant called mother and reported that he

 7   had fallen while holding C. Mother sent aunt back to the apartment to check on C. When

 8   aunt arrived, she found that C had a golf-ball-sized lump on his forehead.

 9                 Aunt took C to the hospital. In addition to the forehead injury, the

10   emergency room physician found that C had swelling around the back of his head and

11   ear, a contusion on his chin, and bruises on his back and right leg. A CAT scan revealed

12   a fractured skull beneath the bruising behind C's ear. Suspecting child abuse, the

13   physician contacted CARES Northwest. Dr. Skinner, a CARES physician, evaluated and

14   treated C.

15                 Skinner's report, prepared about two weeks after she examined C, stated:

16                 "[Defendant] clearly caused [C's] injuries which caused his
17          hospitalization on May 13. [Defendant] provided at least three versions of
18          what happened to [C] on May 12/May 13. His latest story is that he threw
19          [C] into a dresser; [C] hit the dresser and slid down. Though this may have
20          happened, I do not believe this is the whole story. When I saw [C] on
21          Friday evening, he had approximately 10 areas of injury on his head and
22          neck alone -- in addition to a skull fracture. If [C] had only one impact
23          injury (the dresser -- then the floor) I would expect one or two areas of his
24          head to be injured; not 10. I believe there were more injuries which took
25          place that night.

26                 "*****
27                 "[C] was physically abused by [defendant]. This medical diagnosis

                                                  4
 1          is based on [C's] physical exam on Friday May 13, accompanied by review
 2          of statements made by [defendant]."

 3   (Emphasis added.)

 4                 In her report, Skinner referred to statements that defendant had made in

 5   recorded interviews with law enforcement. Over the course of those interviews,

 6   defendant had provided numerous accounts of how C's injuries had occurred, three of

 7   which were relayed to Skinner. In one account, defendant woke to the sound of C crying

 8   and went to C's room to comfort him. Defendant was dizzy and groggy from having

 9   taken methadone pills the night before, blacked out, and woke up on the floor with C.

10   Defendant speculated that he may have tripped on toys that were lying on the floor and

11   thrown C on top of a dresser and that C may have fallen from the dresser to the floor. In

12   a second account, defendant stated that he put C on top of a cabinet or dresser, left the

13   room for a moment, and came back to find C on the floor. Finally, defendant stated that

14   he intentionally threw C head-first into a dresser because he was angry with C's mother.

15                 The admissibility of Skinner's report initially arose when the prosecutor

16   told the trial court that he planned to use a slide that quoted from the report as a

17   demonstrative exhibit in his opening statement. Defendant interposed various objections

18   to that use of the report and also objected, more generally, to the anticipated admission of

19   Skinner's medical diagnosis at trial, citing OEC 702 and OEC 403. The court permitted

20   the state to use the slide, indicated that it would admit the report, and granted defendant a

21   continuing objection.6


            6
                   At trial, the prosecutor did not use Skinner's conclusion that "[C] was

                                                   5
 1                 When the state called Skinner to testify at trial, the court held an

 2   evidentiary hearing under OEC 1047 to determine the admissibility of her diagnosis.

 3   Skinner testified that child abuse is a pediatric diagnosis made for the purposes of

 4   treatment and that "a lot" of literature exists about the issue within pediatric and other

 5   journals. She told the court that she had testified to diagnoses of child abuse in

 6   approximately 30 cases, she could arrive at such diagnoses with a reasonable degree of

 7   medical certainty, and her diagnoses were amenable to peer review. Skinner

 8   acknowledged, however, that she knew of no studies that had analyzed whether medical

 9   providers' diagnoses of child abuse were accurate and that she did not know the potential

10   rate of error in making such diagnoses.

11                 In outlining the methodology that she typically uses in evaluating a child

12   for potential abuse, Skinner said that she looks at the medical condition of the child and

13   conducts a differential diagnosis to determine its cause. The statements of a victim or

14   caregiver may be important in that analysis, she explained, with the statements of a verbal

15   child being "most important." When the state asked whether the "peer literature" refers to

16   "a gold standard in looking at whether persons suffer abuse," Skinner responded that that


     _______________________
     physically abused by [defendant]" in his demonstrative exhibit. The use of that exhibit is
     not at issue on appeal.
            7
                   OEC 104(1) provides:
                    "Preliminary questions concerning the qualification of a person to be
            a witness, the existence of a privilege or the admissibility of evidence shall
            be determined by the court, subject to the provisions of subsection (2) of
            this section. In making its determination the court is not bound by the rules
            of evidence except those with respect to privileges."


                                                   6
 1   was hard to say because the field was so broad, but that, in cases like this, she preferred

 2   to examine the child and view the child's lab and radiologic studies. When the child is

 3   preverbal, Skinner explained, "we sort of have the most we were going to be able to get."

 4   In this case, because C was preverbal and his family members were unavailable, Skinner

 5   said that she had relied on interviews between defendant and law enforcement officials,

 6   and a follow-up conversation with a detective, to obtain C's "history."

 7                 At the conclusion of the OEC 104 hearing, the trial court determined that it

 8   would permit Skinner to present her diagnosis. The court found Skinner to be an expert

 9   in her field and her testimony to be credible. The court also reasoned that, although it

10   might not be possible to evaluate the rate of error associated with Skinner's methodology,

11   the techniques that Skinner had described were generally accepted and the specialty field

12   within which she worked was no longer novel.

13                 When Skinner testified before the jury, she told the jurors that, when she

14   initially saw C on May 13, 2005, her diagnosis was "very concerning for inflicted injury."

15   However, Skinner said, after obtaining the statements that defendant had made to law

16   enforcement, she changed her diagnosis to "physically abused." The prosecutor then

17   asked Skinner whether, in diagnosing child abuse, it is "important to recognize who may

18   have inflicted the injury." Skinner answered that it was important to do so "if able" and

19   that CARES typically makes, as a part of its "treatment recommendations," a request for

20   no contact between persons where a responsible person has been identified. Next, the

21   prosecutor asked whether Skinner had created a report and considered the history that she

22   had gleaned from law enforcement in making that report and in reaching a diagnosis.

                                                   7
 1   When she responded that she had, the prosecutor offered the written report, which the

 2   court received over defendant's "continuing objection."8

 3                  Skinner also testified that C's skull fracture was so serious that it had

 4   created a "substantial risk of death" and could have been caused by only "significant

 5   force." Skinner told the jury that the skull fracture was consistent with defendant's

 6   statement that he had thrown C head-first into the dresser, but that that statement did not

 7   explain all C's injuries. For his part, defendant maintained that the skull fracture had not

 8   occurred while he was caring for C. Defendant testified that, when aunt returned to the

 9   apartment after leaving C at the hospital, she had told defendant that C had been "injured

10   again" and attributed those further injuries to the fact that she had been under the

11   influence of methamphetamine and had not slept for the past 48 hours. Defendant

12   testified that aunt had asked him to rearrange his story to incorporate all the injuries that

13   C had suffered and that he had done so under additional pressure from C's mother. Three

14   other witnesses confirmed that aunt had admitted to dropping and injuring C on the way

15   to the hospital.

16                  In its closing argument, the state emphasized the part of Skinner's written

17   report that stated that "[defendant] clearly caused [C]'s injuries." The state also used the

18   report to attack defendant's claim that C's aunt had injured C, arguing, "[Aunt] didn't

19   cause any of these injuries. * * * [Y]ou had the medical reports. Take another look at

            8
                   As one of his pretrial objections to the prosecutor's anticipated quotation of
     Skinner's report in his opening statement, defendant asserted that the report would be
     cumulative of Skinner's testimony and should not be admitted. At trial, defendant did not
     again urge that objection, nor does he argue that ground on appeal.

                                                    8
 1   that. [Skinner's] final conclusion is that [C] was physically abused by [defendant]."

 2                 As noted, the jury convicted defendant of criminal mistreatment and

 3   second- and third-degree assault. The Court of Appeals affirmed. We allowed review to

 4   determine whether Skinner's diagnosis that "[C] was physically abused by [defendant]"

 5   was admissible scientific evidence, and if not, whether its admission was harmless error

 6   that was "unlikely to have affected the verdict." State v. Davis, 351 Or 35, 48, 261 P3d

 7   1197 (2011). We review for legal error. See Jennings v. Baxter Healthcare Corp., 331

 8   Or 285, 299, 14 P3d 596 (2000) (admission of scientific evidence reviewed for errors of

 9   law).

10                 As a preliminary matter, we reject the state's contention that Skinner's

11   conclusion that defendant had been the perpetrator of C's injuries was not part of her

12   medical diagnosis. Skinner's conclusion was not merely an observation about the facts as

13   she understood them at the time that she made her report -- namely, that defendant was

14   C's sole caretaker on the night that he was injured. To the contrary, Skinner's report

15   explicitly identified defendant as the person who had caused C's injuries and

16   characterized her conclusion as a medical diagnosis. Skinner's report stated, "[C] was

17   physically abused by [defendant]. This medical diagnosis is based on [C's] physical

18   exam on Friday May 13, accompanied by review of statements made by [defendant]."

19   (Emphasis added.) At trial, after eliciting Skinner's testimony that C had been

20   "physically abused," the prosecutor asked Skinner whether, "in diagnosing child abuse[,]

21   it is important to recognize who may have inflicted the injury" and whether she had

22   considered the information that she had obtained from law enforcement in writing her

                                                  9
 1   report and in reaching a diagnosis. When Skinner responded affirmatively, the

 2   prosecutor offered Skinner's report, which included her "medical diagnosis" that "[C] was

 3   physically abused by [defendant]." Thus, both Skinner's medical report and her trial

 4   testimony indicated that Skinner's identification of defendant as the perpetrator of C's

 5   injuries was part and parcel of her medical diagnosis.

 6                 Furthermore, defendant was entitled to challenge the admissibility of

 7   Skinner's conclusion that he was the cause of C's injuries, whether or not Skinner

 8   appropriately had incorporated that conclusion as a part of her medical diagnosis. When

 9   an expert reaches a conclusion as to the cause of an injury and purports to use medical or

10   scientific techniques in doing so, a party may challenge the scientific validity of those

11   techniques under OEC 702, whether or not the conclusion is a cognizable "medical

12   diagnosis." See Marcum v. Adventist Health System/West, 345 Or 237, 247-48, 193 P3d

13   1 (2008) (admissibility of physician's conclusion that plaintiff's medical condition was

14   caused by gadolinium subject to challenge under OEC 702). Accordingly, we proceed to

15   determine whether the trial court erred in admitting Skinner's conclusion that defendant

16   had caused C's injuries and, if so, whether that error was likely to have affected the

17   verdict.

18                 Helpful to our analysis is this court's decision in State v. Southard, 347 Or

19   127, a case in which the court considered the admissibility of a medical diagnosis of child

20   sexual abuse made in the absence of physical evidence. In Southard, the court evaluated

21   the diagnosis under the standards set out in State v. Brown, 297 Or 404, and State v.

22   O'Key, 321 Or 285, and accordingly required that (1) the diagnosis be relevant under

                                                  10
 1   OEC 401; (2) the diagnosis possess sufficient indicia of scientific validity and be helpful

 2   to the jury under OEC 702; and (3) the prejudicial effect of the diagnosis not outweigh its

 3   probative value under OEC 403. Southard, 347 Or at 133.

 4                 The court in Southard began by considering whether the diagnosis of

 5   sexual abuse satisfied the requirements of OEC 702 when examined according to the

 6   Brown and O'Key framework.9 The court observed that a diagnosis of sexual abuse

 7   differs from other medical diagnoses in that it determines whether conduct -- sexual

 8   abuse -- has occurred and not whether a complex medical condition exists. Id. at 134.

 9   That conduct, the court explained, is itself not complicated, and "the ability to determine

10   its occurrence often is a matter within a lay person's competence[,]" rather than one of

11   medical expertise. Id.

12                 The court then identified and scrutinized the steps that the physician, an

13   employee of the KIDS Center, had used to reach her diagnosis -- taking the child's

14   history, interviewing the child, conducting a physical exam, and then following

15   guidelines to reach a team diagnosis. Id. at 135. For each step, the court considered the

16   information adduced and whether the inferences drawn and the methodology used were



            9
                     The seven primary factors listed in Brown are: (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. 297 Or at 417. The four factors listed in
     O'Key are: (1) whether the theory or technique can 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 (4) the degree of acceptance in the relevant scientific
     community. 321 Or at 303-04.

                                                  11
 1   standard, were supported by research or peer-reviewed literature, and were conducted

 2   according to guidelines or protocols. Id. at 135-37. For instance, the court determined

 3   that gathering a patient's history from family members and medical documents is "a

 4   standard feature of medicine[,]" but did not stop there. Id. at 135. The court discussed

 5   the fact that the child's history had disclosed instances of sexualized behaviors that,

 6   according to specific research cited by the physician, were correlated with sexual abuse,

 7   and it explained that the defendant had not contested those findings. The court

 8   determined that interviewing the patient is also "a standard component of a medical

 9   diagnosis[,]" but went on to describe the procedure that the KIDS Center used to enhance

10   the accuracy of the information obtained from the patient. Id. at 136. The court also

11   recognized that, in evaluating the data that it had gathered, the KIDS Center had followed

12   nationally accepted protocols. Id. The court ultimately concluded that, "[c]onsidering

13   the totality of the procedures that the KIDS center used and based on the record

14   developed in this case," the diagnosis of child sexual abuse was scientifically valid under

15   OEC 702. Southard, 347 Or at 137.

16                 Scientific validity was not, however, the end of the inquiry. The court

17   proceeded to consider the other two criteria that it had determined were necessary for the

18   admissibility of scientific evidence -- whether the diagnosis was relevant under OEC 401,

19   and whether its probative value was outweighed by unfair prejudice under OEC 403. The

20   court concluded that the diagnosis was relevant and that it had some probative value;

21   however, it decided that the marginal value of the diagnosis was slight. Id. at 140. The

22   court reasoned that the diagnosis hinged on the physician's determination that the child

                                                  12
 1   truthfully had reported sexual abuse by the defendant and that the jury was equally

 2   capable of determining whether the child was telling the truth. Conversely, the risk of

 3   prejudice was "great": the diagnosis came from a "credentialed expert, surrounded with

 4   the hallmarks of the scientific method," and thereby created a risk that the jury "may be

 5   overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of

 6   the evidence." Id. at 140-41 (quoting Brown, 297 Or at 439) (internal quotation marks

 7   and modifications omitted). Based on that assessment, the court held that the diagnosis

 8   of sexual abuse was not admissible. Id. at 143.

 9                 The mode of analysis that this court used in Southard is also applicable

10   here. Although physical evidence was available in this case, Skinner did not specifically

11   identify that evidence as a basis for her conclusion that defendant had caused C's injuries.

12   Like the expert in Southard, Skinner determined from C's history whether conduct

13   (physical abuse by defendant) had occurred, not whether a complex medical condition

14   existed. Skinner also determined a matter that is ordinarily within a jury's competence

15   rather than one of medical expertise -- the identity of a perpetrator of a crime.

16                 We begin, then, as the court did in Southard, with the second of the criteria

17   that it outlined -- whether the diagnosis at issue possesses sufficient indicia of scientific

18   validity to be helpful to the jury under OEC 702 -- and examine the scientific

19   methodology that Skinner described. 347 Or at 135. As noted, Skinner is a physician

20   with significant experience in diagnosing and testifying to diagnoses of child abuse. She

21   testified that child abuse is a recognized pediatric diagnosis and that "a lot" of literature

22   exists on the topic. She explained that, in this case, in accordance with her typical

                                                   13
 1   practice, she had examined C and read his chart, and also had considered C's "history,"

 2   which consisted of recorded interviews with law enforcement and a conversation with a

 3   detective who had interviewed defendant. Skinner then engaged in a process of

 4   "differential diagnosis" and reached her ultimate conclusion that C had been "physically

 5   abused by [defendant]."

 6                 The focus of Skinner's testimony was on the scientific validity of her

 7   conclusion that C had been physically abused, not on her additional conclusion -- as

 8   stated in her written report -- that C had been abused by defendant.10 As to that

 9   conclusion, the state acknowledges that Skinner's testimony was insufficient to satisfy the

10   requirements of OEC 702. We agree. Skinner did not establish that she was qualified to

11   identify the perpetrator of inflicted injury. Although she testified that it is important to

12   determine the individual who inflicted the injury "if able" and that, when a responsible

13   person has been identified, CARES makes treatment recommendations accordingly,

14   Skinner did not testify that an accepted methodology exists for engaging in that analysis

15   or making those recommendations. Neither did Skinner indicate whether the steps that

16   she took in reaching her diagnosis that "[C] was physically abused by [defendant]" were

            10
                    In this court, defendant does not explicitly address the Court of Appeals'
     conclusion that, when limited to a diagnosis that C had been physically abused, Skinner's
     diagnosis was scientifically valid. Consequently, we do not decide whether the Court of
     Appeals was correct in that regard. We do note, however, that such a diagnosis also must
     meet the criteria for admissibility set forth in Southard. That is, a party seeking
     admission of a diagnosis of child abuse must identify the methodology and the specific
     steps that the expert used to arrive at a diagnosis of child abuse and demonstrate the
     scientific validity of each. A trial court considering admission of such a diagnosis also
     must consider its relevancy and whether its probative value outweighs the dangers
     identified in OEC 403. See Southard, 347 Or at 133 (describing those criteria).

                                                   14
 1   standard in the profession, supported by research or peer-reviewed literature, or were

 2   conducted according to accepted guidelines or protocols.

 3                 Certainly, conducting a physical exam and reviewing medical records such

 4   as those that Skinner reviewed are accepted medical procedures. And, as defendant

 5   acknowledges, a physical examination may reveal individual characteristics that, when

 6   matched with other evidence such as teeth marks or blood stains, may reveal the identity

 7   of the perpetrator of inflicted injury. See State v. Lyons, 324 Or 256, 279, 924 P2d 802

 8   (1996) (DNA evidence linked defendant with hairs left on the victim's body). It is also

 9   true, as this court stated in Southard, that gathering a patient's history from family

10   members and medical documents is "a standard feature of medicine," applicable in the

11   treatment of abuse. 347 Or at 135. See also Thomas D. Lyon, Elizabeth E. Gilles, M.D.

12   & Larry Cory, Medical Evidence of Physical Abuse in Infants and Young Children, 28

13   Pac L J 93, 96 (1996) (doctors use combination of history, physical examination, and

14   laboratory and imaging findings in diagnosing child abuse). In this case, however,

15   Skinner's testimony did not identify any aspect of C's physical injuries as support for her

16   conclusion that defendant had caused those injuries, nor did Skinner testify that

17   physicians typically use data such as the data that Skinner used in this case -- including

18   information obtained from law enforcement -- to diagnose the identity of perpetrators of

19   physical abuse.

20                 Skinner's testimony also failed to discuss whether it is standard practice for

21   physicians to use "differential diagnosis" to determine the identity of child abuse

22   perpetrators. This court has recognized "differential diagnosis" as an accepted technique

                                                  15
 1   in which

 2          "'a doctor develops a list of all diseases that might cause a patient's
 3          symptoms and then, by a process of elimination, narrows the list.' [It is] a
 4          process by which a medical expert first 'rules in' various potential causes
 5          and then 'rules out' those causes one by one (to the extent possible) by
 6          analyzing the patient's condition until the expert can identify the likely
 7          cause from among those remaining. Thus, 'differential diagnosis' is a
 8          general description of a methodology or process accepted by the medical
 9          community as a means of determining causation (or condition), rather than
10          a specific scientific technique or test * * *."

11   Marcum, 345 Or at 247 (citations omitted). However, as this court explained in Marcum,

12   "although differential diagnosis can be the basis for admissible expert testimony as to

13   medical causation, testimony is not admissible simply because the expert conducted a

14   differential diagnosis." Id. at 247-48.

15                 In Marcum, the expert used differential diagnosis to determine whether a

16   patient's medical condition had been caused by an injection of gadolinium. The court

17   sustained the admissibility of the expert's opinion, not because the expert had utilized the

18   process of differential diagnosis, but because he had "made an adequate showing of a

19   scientifically valid basis for 'ruling in' gadolinium as a potential cause of [the patient's]

20   symptoms, as well as for 'ruling out' a number of the other possible causes of [the

21   patient's] injury." Id. at 252-53. Thus, although it is not inconceivable that a physician

22   could use differential diagnosis to determine the cause of a child's injuries,11 a physician


            11
                    A textbook recently published by the American Academy of Pediatrics and
     cited in the state's brief describes differential diagnosis as one of the four steps in
     determining whether a child's injuries were intentionally caused. Those steps are: (1)
     recognizing trauma; (2) reflecting on the collective experience with such trauma; (3)
     looking for informative patterns and drawing mechanistic inferences; and (4) presenting a
     good framework for both discussing known diagnostic pitfalls and thoughtfully

                                                   16
 1   who does so must explain the potential causes of the injury and also demonstrate the

 2   scientific bases for those decisions along the way.

 3                 In this case, Skinner described C's injuries and concluded that it was likely

 4   that C had been subjected to more than one impact and that C's skull fracture had been

 5   caused by "significant force." Skinner also described the history that she had obtained

 6   and her conclusion that, based on C's combination of injuries, she did not believe that

 7   defendant was telling "the whole truth" when he stated that he had thrown C into the

 8   dresser. Skinner's testimony did not, however, complete the thought. That is, the

 9   testimony did not identify the potential causes of C's injuries nor explain how or why she

10   had ruled one of these causes in, and others out. Although Skinner stated that she had

11   considered defendant's statements in reaching her diagnosis, her testimony did not

12   explain the scientific basis, if any, for concluding, from the fact of his varying accounts,

13   that defendant was the perpetrator of C's injuries. And, Skinner's testimony did not

14   describe, as Southard requires, the standard practices, research, literature, guidelines, or

15   protocols that justified her reasoning.

16                 To conclude that scientific evidence is sufficiently reliable to be admissible

17   under OEC 702, it is not enough that there are experts on a subject, that the person who

18   testifies is credible, or that evidence takes the form of a medical record. Neither is it


     _______________________
     constructing and resolving differential diagnoses in individual cases. Robert M. Reece &
     Cindy W. Christian eds, Child Abuse: Medical Diagnosis & Management 228 (3d ed
     2009). The state acknowledges, however, that neither that text nor any other research or
     literature supports the idea that a diagnosis of physical abuse includes the identity of the
     perpetrator.

                                                   17
 1   enough that "a lot" of literature exists on the subject or that the expert gathers the

 2   information to which that literature refers and conducts a differential diagnosis. Instead,

 3   the expert must explain more precisely his or her own expertise, how he or she gathers

 4   and uses particular information, how that information informs his or her conclusions, and

 5   the scientific basis for the steps that he or she takes in that process. Although Skinner

 6   established that she was qualified to assess whether a child has been subjected to abuse,

 7   her testimony she did not sufficiently describe the techniques that she had used to identify

 8   the perpetrator. And, to the extent that Skinner's testimony did describe her techniques, it

 9   failed to demonstrate that they were generally accepted, consistent with recognized

10   safeguards to increase diagnostic accuracy, or supported by literature in the field. See

11   Southard, 347 Or at 137 (applying that analysis). Accordingly, Skinner's ultimate

12   conclusion that "[C] was abused by [defendant]" did not satisfy the requirements of OEC

13   702, the second of the three criteria identified in Southard. Because Skinner's conclusion

14   was inadmissible under OEC 702, we need not consider whether it satisfied any of the

15   remaining Southard criteria.

16                 The remaining issue for our consideration is whether the trial court's error

17   in admitting Skinner's diagnosis was harmless. The state does not urge us to adopt the

18   Court of Appeals' reasoning that defendant's identity was not at issue in this case; instead,

19   the state alerts us to that court's mistake and points out that, at trial, defendant adduced

20   evidence that aunt had inflicted the injury that had caused C's fractured skull. The state

21   continues to urge, however, that the trial court's admission of Skinner's diagnosis was

22   harmless error. The state specifically argues that the jury would have understood that

                                                   18
 1   Skinner's conclusion that defendant had been the perpetrator of C's injuries was nothing

 2   more than a reflection of the facts known to her at the time that she had made her report.

 3   We are not persuaded. For the reasons that follow, we cannot conclude that there was

 4   little likelihood that Skinner's diagnosis affected the jury's verdict.

 5                 Under Article VII (Amended), section 3, of the Oregon Constitution,12 an

 6   evidentiary error is "harmless" and may not result in reversal if there is little likelihood

 7   that it affected the verdict. State v. Davis, 351 Or 35, 261 P3d 1197 (2011). The

 8   appropriate inquiry is not whether a reviewing court regards the evidence of guilt as

 9   substantial and compelling, but whether the trial court's error was likely to have

10   influenced the verdict as a matter of law. Id. at 60-62. In undertaking that analysis, the

11   reviewing court must consider a trial court's evidentiary error in context and examine the

12   nature and effect of the excluded and the admitted evidence. Id. at 62.

13                 In a different case, State v. Davis, 336 Or 19, 77 P3d 1111 (2003), this

14   court determined that the erroneously excluded evidence at issue went "directly to the

15   heart of defendant's factual theory of the case" and that it was "influential because it

16   tended to complete the picture of defendant's version of the events." Id. at 34. The court

17   observed that nothing about the context of the legal error indicated that the jury "would

18   have regarded the excluded evidence as duplicative or unhelpful to its deliberations." Id.


            12
                   Article VII (Amended), section 3, provides, in part:
                   "If the supreme court shall be of opinion * * * that the judgment of
            the court appealed from was such as should have been rendered in the case,
            such judgment shall be affirmed, notwithstanding any error committed
            during the trial * * *."


                                                   19
 1   at 33. Consequently, the court held that exclusion of the evidence was not harmless. Id.

 2   at 35.

 3                 The court reached a similar conclusion in State v. Willis, 348 Or 566, 236

 4   P3d 714 (2010), a case in which the trial court erred in admitting a scientific report that

 5   had identified a substance seized from defendant as methamphetamine. The court

 6   reasoned that the report went to the "heart of * * * the case," as the state was required to

 7   prove that the defendant had unlawfully possessed methamphetamine rather than some

 8   other substance. Id. at 572 (citations omitted). Scientific evidence, explained the court,

 9   is powerful, in that it can strongly support or rule out a party's claims. It can either "turn

10   suspicion into probability, or it can establish that the substance was not the specific

11   controlled substance alleged in the indictment[.]" Id. at 573. The court applies the

12   harmless error rule expecting that jurors will rely on scientific evidence: "Any juror

13   would wish to have the scientific answer, and could be expected to give it weight." Id.

14                 To convict defendant of second-degree assault in this case, the jury had to

15   find that defendant had caused "serious physical injury" to C, defined as injury that

16   "creates a substantial risk of death." ORS 163.175; ORS 161.015(8). To prove that

17   element of the charge, the state adduced evidence that C's skull fracture had created a

18   substantial risk of death and that defendant had caused that injury. Defendant's counter-

19   argument was that it was not he, but aunt, who had fractured C's skull. Skinner's report

20   directly addressed that issue, concluding that defendant had caused all C's injuries that

21   she described, including the skull fracture.

22                 Skinner testified as a qualified expert on the issue of child abuse. Although

                                                    20
 1   it is possible that the jurors could have discounted her conclusion as based on insufficient

 2   information, it is just as likely -- if not more likely -- that they credited Skinner's

 3   expertise. Skinner's testimony did not qualify her previous diagnosis or explain its

 4   limitations. Skinner testified that an important part of her diagnostic process was to

 5   determine the identity of the individual who had inflicted the injury. The state then

 6   offered her report, which identified defendant as the perpetrator of child abuse, and it was

 7   received into evidence. In so doing, the state encouraged the jury to read the report as

 8   indicating Skinner's present views, arguing in closing that "[aunt] didn't cause any of

 9   these injuries. * * * [Y]ou had the medical reports. Take another look at that. [Skinner's]

10   final conclusion is that [C] was physically abused by [defendant]." We conclude that, as

11   to the conviction of second-degree assault, Skinner's conclusion that defendant had

12   caused all C's injuries went to the heart of a disputed issue, and its admission therefore

13   was not harmless error.

14                 Our analysis as to defendant's other convictions is different, however. The

15   two charges of first-degree criminal mistreatment13 and the charge of third-degree

            13
                   ORS 163.205 provides, in part:
                  "(1) A person commits the crime of criminal mistreatment in the first
            degree if:

                    "(a) The person * * * having assumed the permanent or temporary
            care, custody or responsibility for the supervision of another person,
            intentionally or knowingly withholds necessary and adequate * * * medical
            attention from that other person; or

                   "(b) The person * * * having assumed the permanent or temporary
            care, custody or responsibility for the supervision of a dependent person or
            elderly person, intentionally or knowingly:

                                                    21
 1   assault14 did not require proof that defendant had caused serious physical injury that

 2   created a substantial risk of death. To prove those charges, it was sufficient for the state

 3   to establish that defendant had caused C some "physical injury." Defendant admitted that

 4   he was responsible for caring for C on the night of May 12, 2005, and that he had caused

 5   the injury to C's forehead. Therefore, on the charges of first-degree criminal

 6   mistreatment and third-degree assault, Skinner's conclusion that defendant was the cause

 7   of C's injuries addressed a factual issue that defendant did not contest.

 8                 Skinner's diagnosis, however, was not limited to determining the cause of

 9   C's injuries. Skinner's diagnosis included the conclusion that C's injuries were the result

10   of child abuse. That aspect of Skinner's diagnosis addressed a second disputed issue --

11   whether defendant's actions were intentional or accidental. If we could separate Skinner's

12   diagnosis into two parts, as the Court of Appeals did, we potentially could affirm

13   defendant's convictions for first-degree criminal mistreatment and third-degree assault, in

14   accordance with that court's reasoning. However, that was not the manner in which the

15   case was tried, and we will not speculate about what may have happened if the case had


     _______________________
                  (A) Causes physical injury or injuries to the dependent person or
           elderly person[.]"
            14
                   ORS 163.165 provides, in part:
                  "(1) A person commits the crime of assault in the third degree if the
            person:

                   "* * * * *

                  "(h) Being at least 18 years of age, intentionally or knowingly causes
            physical injury to a child 10 years of age or younger[.]"


                                                  22
1   been tried otherwise. Because we cannot conclude that there was little likelihood that the

2   admission of Skinner's diagnosis did not affect all of defendant's convictions, we also

3   cannot conclude that the trial court's error was harmless as to the convictions for first-

4   degree mistreatment and third-degree assault.

5                  The decision of the Court of Appeals is reversed. The judgment of the

6   circuit court is reversed, and the case is remanded to the circuit court for further

7   proceedings.




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