State v. Wells, 308 P.3d 274

Defendant was convicted in 2001 of two counts of first-degree sexual abuse; initial direct appeal affirmed without opinion.
Federal habeas corpus proceeding held that appellate counsel was ineffective for not challenging admission of CARES-diagnosis testimony; remanded for new direct appeal with competent counsel.
State acknowledges Southard (2009) and Lupoli (2010) may apply to defendant’s appeal; court may review for plain error.
At trial, CARES evaluators testified each girl was diagnosed with sexual abuse; diagnosis relied on interview histories despite normal physical exams.
Defense objected at one witness’s diagnosis; other two evaluators’ testimony not objected to; jury acquitted on some counts and convicted two counts related to A.
On remand, appellate court must decide whether to apply current law (Southard/Lupoli) to preserve/review error and whether to grant a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of diagnosis testimony was plain error	Wells (State) concedes no preservation; argues no plain error under old law.	Wells should apply Southard and Lupoli; error is plain and deserving correction.	Yes; error is plain and corrected; new trial ordered.
Preservation of the objection to diagnosis testimony	State: objection not preserved; additional objections waived.	Objection generalized but record shows enough to preserve; bench conference inadequate.	Objection not properly preserved at trial, but plain-error review still warranted; reversal sustained.
Whether to apply current law (Southard/Lupoli) on remand despite procedural history	Law as of original appeal time should control to avoid windfall.	Apply current law to ensure reliable proceeding; not a windfall because it corrects admissibility.	Apply current law; reversal and remand for new trial.
Whether the error was harmless given acquittals on other counts	Acquittals show error did not sway jury.	Harm analysis must consider constitutional error; cannot rely on outcome alone.	Not dispositive; reversal for correction of the error.

State v. Southard, 347 Or 127 (Or. 2009) (diagnosis without physical evidence inadmissible if not probative)
State v. Lupoli, 348 Or 346 (Or. 2010) (expert testimony explaining why child’s report admissible as credibility commentary)
State v. Jury, 185 Or App 132 (Or. App. 2002) (plain-error review framework guiding appellate discretion)
State v. Merrimon, 234 Or App 515 (Or. App. 2010) (preservation and plain-error considerations in reviewing trial errors)
State v. Lovern, 234 Or App 502 (Or. App. 2010) (plain-error review and error-correction discretion)
Ailes v. Portland Meadows, Inc., 312 Or 376 (Or. 1991) (error apparent on the face of the record and factors for review)
Brock v. Baldwin, 171 Or App 188 (Or. App. 2000) (windfall concerns in post-conviction resentencing discussions)
Lockhart v. Dixon, 506 U.S. 364 (U.S. 1993) (windfall concept in ineffective assistance and outcome-focused analysis)
Wyatt, 331 Or 335 (Or. 2000) (preservation necessity in objection specificity)
Jury, 185 Or App 132 (Or. App. 2002) (framework for determining plain-error review under evolving law)