Defendant was convicted of two counts of first-degree sexual abuse in 2001. This court affirmed his convictions without opinion, and the Supreme Court denied review. See State v. Wells,
The facts material to this appeal are not in dispute. In 2000, L, A, and J, three friends of defendant’s daughter, accused defendant of having touched them inappropriately. All three girls were taken to CARES, a child abuse assessment center, for evaluation. Defendant was eventually charged with eight counts of first-degree sexual abuse — two counts each related to L and A, and four counts related to J. At trial, the state elicited testimony from the CARES evaluators who had examined the three girls. Each of the three evaluators testified, with respect to the girl whom she had examined, that she had made a diagnosis of sexual abuse. Each evaluation was based on a physical examination of the child and family and social histories obtained from an interview of the child and other sources. Dr. Reiss, who had
When the prosecutor asked Reiss about her diagnosis of A during the state’s case-in-chief, defense counsel objected and asked a question in aid of objection:
“[DEFENSE COUNSEL]: Doctor, the medical examination, the physical examination as I understand it was completely normal?
“THE WITNESS: That’s correct.
“[DEFENSE COUNSEL]: And the other information that you received concerning [A] and her experiences would be, basically, what [A] had told you, correct?
“THE WITNESS: That’s correct, it’s what she told me.
“[DEFENSE COUNSEL]: So your diagnosis then is based solely on what she told you?
“THE WITNESS: No, that’s not correct.
“[DEFENSE COUNSEL]: Well, can you point to anything in the physical examination that is supportive of what she said?
“[THE PROSECUTOR]: Judge, I object to this. This is not a proper objection to this witness’s testimony.
“[DEFENSE COUNSEL]: It’s not a proper diagnosis, Your Honor.”
At that point, the court called counsel to the bench for an unrecorded conference, after which the court stated, “For the record, your objection to the witness rendering an opinion regarding the witness rendering a diagnosis is overruled.” Defendant did not object to the diagnosis testimony of the other evaluators.
The jury convicted defendant of the two counts related to A and acquitted him of the remaining counts before it.
While the habeas case was pending before the Ninth Circuit, the Oregon Supreme Court issued its decision in Southard. It later issued its decision in Lupoli while defendant’s habeas case was pending on remand.
On remand, the federal district court concluded that defendant’s appellate counsel had “neglected and abandoned” him. Wells v. Howton,
Defendant raises three assignments of error. In the first, he challenges the admission into evidence of Reiss’s testimony concerning her diagnosis of A as having been sexually abused. In his second assignment, defendant argues that the trial court erred in failing to merge the two convictions, asserting that both underlying offenses were part of the same criminal episode. Finally, defendant challenges the imposition of the $10,000 compensatory fine, arguing that there is no evidence that A had incurred any pecuniary loss.
Because it is dispositive, we begin and end with defendant’s first assignment of error. In Southard, the Supreme Court held that, if there is no physical evidence of abuse, a diagnosis of sexual abuse is inadmissible under OEC 403 if it “does not tell the jury anything that it could not have
Even if the error is plain, the state contends, we should not exercise our discretion to correct it. The state remonstrates that post-conviction relief is not intended to reward successful petitioners with better legal outcomes than they would have obtained had they received effective assistance of counsel in the first instance. According to the state, if we review defendant’s assignment of error under current legal standards — that is, under Southard and Lupoli — we would grant defendant a windfall by placing him in a better position than he would have occupied had his original counsel not been deficient.
The state urges us not to correct the error for two other reasons. First, it argues that, even if defendant had preserved a Southard objection to Reiss’s testimony, he later waived the objection by failing to object to the testimony of the other two CARES evaluators. Finally, the state argues that any error by the trial court was harmless. In the state’s view, the fact that the jury acquitted defendant of the charges involving J and L shows that it was not swayed by the diagnosis testimony.
Nevertheless, we conclude that it is appropriate to exercise our discretion to review for plain error. We may review an unpreserved error if it is apparent on the face of the record — that is, if it is an error of law, if it is “obvious, not reasonably in dispute,” and if we need not go outside the record to identify the error or choose between competing inferences. Ailes v. Portland Meadows, Inc.,
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way * *
Ailes,
“Error apparent on the face of the record is merely a subspecies of error generally. Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial. Consequently, the same must be true of error apparent on the face of the record.”2
Applying Southard and Lupoli to this case, we readily conclude — as the state concedes we must if we apply those cases — that the trial court erred in allowing Reiss to testify about her sexual-abuse diagnosis.
We next consider whether to exercise our discretion to correct the error. It may be true that, as a practical matter, defendant will receive a windfall if we apply the law as
In Brock, the petitioner received post-conviction relief on the ground that the criminal trial court had used the wrong criminal history score on five of the petitioner’s eight convictions. The post-conviction court vacated all eight sentences and remanded the entire case for resentencing. We rejected the petitioner’s argument on appeal that the post-conviction court should have vacated only the five erroneous sentences. We observed that the sentencing court could have reached the same total sentence in all events by, for example, imposing departure sentences on the convictions for which the correct criminal history score was used. We held that, if only the five erroneous sentences were vacated, “such a result would grant petitioner more than ‘relief from ineffective assistance of counsel; it would give him a windfall consisting of the possibility of a more favorable overall term of imprisonment than he would have received if his attorney had timely objected to the sentencing error.”
In Lockhart, a federal habeas corpus case, the respondent, who had been sentenced to death, argued that his counsel had been ineffective for failing to raise a case that, at the time of his sentencing, would have spared him the death penalty. By the time of the habeas action, that case had been overruled. The Supreme Court held that the respondent had not been prejudiced by his counsel’s failure to raise the case. The Court acknowledged that, had counsel raised the case, the outcome likely would have been different — the respondent would have been sentenced to life in prison instead of death. But it explained that “an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”
In both Brock and Lockhart, the windfall would have been to deprive the sentencing authority of the opportunity to impose the total sentence that it deemed appropriate and that was permissible under the law properly construed. In other words, the windfall would have allowed the Brock petitioner and the Lockhart respondent to evade the correct application of sentencing laws. Here, the “windfall” for defendant is that he will receive a trial in which the state will not be permitted to introduce evidence that is inadmissible under the law construed in Southard and Lupoli. In other words, defendant’s “windfall” consists of a correct application of the law. The state has not persuaded us that that is the sort of windfall we ought to avoid. Indeed, the state’s approach would have us focus “solely on mere outcome determination,” without considering whether applying the law as it was understood in 2003 would result in a fair and reliable proceeding. In essence, the state would have us apply the law in a manner that we now know to be incorrect. We decline to do so.
We reject without discussion the state’s contentions that defendant waived any objection to Reiss’s testimony by failing to object to the testimony of the other two CARES evaluators and that the error in admitting Reiss’s testimony was harmless. For the reasons articulated in State v. Merrimon,
Reversed and remanded.
Notes
One count had been dismissed on the state’s motion before trial.
As we noted in Jury, there are exceptions to that general rule, such as when applying a law in effect at the time of an appeal would create an ex post facto violation, or when the legislature specifies a particular effective date for a statute.