State v. Wells
Case #: A150347
Hadlock, J. for the Court; Ortega, P.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A150347.pdf
Appellate Procedure: A court may exercise its discretion to review for plain error to apply the law as it exists at the time an appeal is decided.
Defendant appealed convictions of two counts of first-degree sexual abuse. On appeal, the Court of Appeals affirmed Defendant’s convictions and the Supreme Court denied review. Defendant then filed a habeas corpus claim in federal court and that court concluded Defendant was deprived of competent counsel and ordered the State to provide Defendant with a new direct appeal. In the new appeal, Defendant contended that the trial court erred by admitting evidence of sexual abuse despite the fact that there was no physical evidence of abuse. While Defendant’s case was pending in federal court, the Oregon Supreme Court held that without physical evidence of abuse, a diagnosis of sexual abuse is inadmissible. The State does not deny the Supreme Court’s holding, but argues that the court should not exercise its discretion to review for plain error and apply the law as it existed at trial court. The Court exercised its discretion to correct the error and applied the law as it existed at the time it decided the appeal. Thus, the trial court erred. Reversed and remanded.