State v. Pickett, 246 Or. App. 62

Defendant Richard Pickett was convicted by a trial court on multiple counts including five counts of first-degree sodomy and various counts of first- and second-degree sexual abuse and related offenses.
The victim, who testified at trial, was 18 years old at the time of trial.
The trial court admitted a medical expert's diagnosis that the victim had been sexually abused despite the absence of physical signs of abuse.
Defendant challenged the diagnosis admission as plain error under State v. Southard; the defense did not preserve the issue below.
Evidence also included a recorded police interview in which Pickett admitted extensive sexual abuse of the victim and several sexually explicit photographs corroborating her account.
The appellate court concluded the diagnosis admission was plain error but held the error did not likely affect the verdict and declined to affirmatively correct it; the convictions were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the medical diagnosis admission plain error?	Pickett relied on Southard to claim plain error.	Pickett contends admission without physical signs prejudiced trial.	Yes; admission was plain error
Should the court exercise discretion to correct the plain error?	Evidence of guilt was overwhelming, so no need to correct.	If error occurred, the court should correct it to ensure fairness.	Court declines to correct the error

State v. Southard, 347 Or. 127 (2009) (admission of medical diagnosis of abuse without physical signs may be impermissible)
State v. Clay, 235 Or. App. 26 (2010) (plain error for medical diagnosis of abuse without physical signs)
State v. Potts, 242 Or. App. 352 (2011) (continuing applicability of Southard to plain-error review)
Ailes v. Portland Meadows, Inc., 312 Or. 376 (1991) (discretion to review or correct plain error; factors include gravity of error)
State v. Childs, 243 Or. App. 129 (2011) (declining to exercise discretion to correct plain error when not likely to affect verdict)