Argued and submitted on April 12, 2013.
Washington County Circuit Court C001364CR, Mark Gardner, Judge.
Ryan Scott argued the cause and filed the brief for appellant.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
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, 187 Or.App. 115, 66 P.3d 1030, rev den, 335 Or 656 (2003). Defendant sought a writ of habeas corpus in federal court. The court concluded that defendant had been deprived of effective assistance of appellate counsel, and it ordered the state to provide him with competent counsel and the opportunity for a new direct appeal, which is the posture in which the case is now before us. Defendant presents several arguments, including that, at his criminal trial, the court erred in admitting evidence that the alleged victim had been diagnosed as having been sexually abused without there having been any physical evidence of abuse. The state contends that defendant did not preserve that claim of error at his 2001 trial. However, it acknowledges that the Supreme Court's subsequent holdings in State v. Southard, 347 Or 127, 218 P.3d 104 (2009), and State v. Lupoli, 348 Or 346, 234 P.3d 117 (2010), "apply to defendant's appeal" under State v. Jury, 185 Or.App. 132, 136, 57 P.3d 970 (2002), rev den, 335 Or 504 (2003). The state also acknowledges that this court may "view defendant's claim of error as plain error." Nonetheless, the state urges us not to exercise our discretion to review for plain error in this case. We conclude that plain-error review is appropriate here and that defendant is entitled to a new trial. Accordingly, we reverse.
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 evaluated A, testified that A's physical examination was "completely normal." The other two evaluators gave similar testimony concerning the other girls.
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 ...