Submitted on remand from the Oregon Supreme Court July 1, 2021, reversed and remanded March 9, 2022
MICHAEL JAMES EVANS, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 12039338P; A161781 506 P3d 469
This post-conviction case is on remand from the Supreme Court for consid- eration of whether appellate counsel provided inadequate assistance on direct appeal in failing to argue that the trial court’s erroneous admission of a doc- tor’s diagnosis of sexual abuse as to one victim required reversal of convictions involving another victim. Held: Appellate counsel failed to exercise reasonable professional skill and judgment in failing to argue that petitioner was entitled to reversal of the two counts involving the other victim. Had appellate counsel done so, it is more probable than not that petitioner would have obtained a reversal of those convictions. The Court of Appeals therefore reversed and remanded the post-conviction court’s judgment and left it to that court to fashion an appropri- ate remedy in the first instance. Reversed and remanded.
On remand from the Oregon Supreme Court, Evans v. Nooth, 368 Or 159, 487 P3d 42 (2021). J. Burdette Pratt, Senior Judge. Jed Peterson and O’Connor Weber LLC filed the opening brief for appellant. Michael James Evans filed the supple- mental brief pro se. Frederick Boss, Deputy Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the answering brief for respondent. Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge. JAMES, P. J. Reversed and remanded. Cite as 318 Or App 162 (2022) 163
JAMES, P. J. This post-conviction case, which involves a claim of inadequate assistance by petitioner’s appellate counsel, is before us on remand from the Oregon Supreme Court. Evans v. Nooth, 368 Or 159, 487 P3d 42 (2021) (Evans IV). We had previously affirmed, Evans v. Nooth, 300 Or App 331, 452 P3d 1026 (2019) (Evans III), but the Supreme Court concluded that our analysis had introduced issues into the case beyond what had been litigated in the post- conviction court and on appeal in Evans III. For that reason, the Supreme Court sent the case back to us to consider “the question before the post-conviction court and framed by the parties on appeal,” which is “whether, in responding to the state’s petition for reconsideration [on direct appeal], appel- late counsel had provided inadequate assistance in failing to argue that the trial court’s erroneous admission of the doctor’s testimony had required reversal of all convictions, including on Counts 13 and 14.” Evans IV, 368 Or at 165. On reconsideration, we agree with petitioner that his appel- late counsel failed to exercise reasonable professional skill and judgment regarding the reversal of Counts 13 and 14, and we conclude that petitioner was prejudiced as a result. Accordingly, we reverse and remand the post-conviction court’s judgment and leave it to that court to fashion an appropriate remedy in the first instance.1 Most of the pertinent background facts were set out by the Supreme Court, and we draw from that summary to frame the issues on remand: “The relevant facts are as follows. Petitioner was charged with sexually assaulting two siblings, A and B. A had dis- closed the abuse first, reporting both that petitioner had abused her and that she had witnessed him abusing [her brother, B]; several months later, B also disclosed abuse. At trial, the state offered testimony from a doctor who diag- nosed A with having been sexually abused, based in part on physical evidence of abuse. Petitioner asked for a hear- ing under OEC 104, to determine whether that diagnosis was admissible scientific evidence. The trial court opined 1 In Evans III, we rejected petitioner’s other assignments of error without discussion. The Supreme Court’s remand does not affect our disposition of those assignments. Evans IV, 368 Or at 167 n 4 (so noting). 164 Evans v. Nooth
that the diagnosis was not scientific evidence, denied peti- tioner’s request for hearing, and admitted the doctor’s tes- timony. A jury convicted petitioner on eight counts involv- ing A and two counts—Counts 13 and 14—involving B. The court imposed concurrent 75-month sentences on the counts related to B, with a longer set of sentences, several consecutive, on the counts related to A. “Petitioner appealed. Among other assignments of error, he challenged the admission of the doctor’s testimony regarding A. The Court of Appeals reversed in part, citing State v. Southard, 347 Or 127, 218 P3d 104 (2009) (then recently decided), and concluding that the trial court had erred in admitting the doctor’s testimony without conduct- ing an OEC 104 hearing. State v. Evans, 236 Or App 467, 470, 236 P3d 848 (Evans I), modified on recons, 238 Or App 466, 242 P3d 718 (2010) (Evans II); see also Southard, 347 Or at 139, 142 (diagnosis of ‘sexual abuse’ not accompanied by physical evidence of abuse qualified as scientific evi- dence, but was not admissible under OEC 403, because it did not ‘tell the jury anything that it could not have deter- mined on its own’). The Court of Appeals reversed and remanded petitioner’s convictions on the counts relating to A. However, the court’s opinion said nothing about Counts 13 and 14, the counts related to B. Evans I, 236 Or App at 470-71. “The state sought reconsideration, seeking clarification that petitioner’s convictions on Counts 13 and 14 had not been affected by the errors identified in Evans I. Petitioner’s appellate counsel filed a response, which is the genesis of petitioner’s inadequate assistance claim. In that response, counsel wrote that petitioner ‘agree[d]’ that Evans I had affirmed on Counts 13 and 14, and did ‘not object to mod- ifying the opinion to make that affirmation express.’ The response further agreed that remand and resentencing on Counts 13 and 14 were appropriate. The Court of Appeals allowed reconsideration and modified its disposition to expressly affirm petitioner’s convictions on Counts 13 and 14. Evans II, 238 Or App 466. On remand, the trial court dismissed the counts relating to A at the state’s request, but it also resentenced petitioner to consecutive 75-month sentences on Counts 13 and 14. “Petitioner filed for post-conviction relief, contending that his appellate counsel’s response on reconsideration of Evans I had amounted to inadequate assistance. He Cite as 318 Or App 162 (2022) 165
specifically asserted that counsel should have relied on Southard to make an argument that, together with other aspects of the state’s evidence, the doctor’s testimony improperly had vouched for both A’s and B’s credibility, and had created a substantial risk of prejudice affecting the jury’s evaluation of their credibility—such that the error was not harmless as to Counts 13 and 14, requir- ing reversal. The superintendent countered that Evans II affirmatively had stated that Counts 13 and 14 had been ‘unaffected by the error’ in admitting the doctor’s testi- mony, 238 Or App at 467—stated differently, that the error identified in Evans I had been harmless as to Counts 13 and 14, which in turn showed that counsel’s response had not prejudiced petitioner. The superintendent otherwise argued that counsel had acted reasonably.”
Evans IV, 368 Or at 161-65 (emphasis in original; footnotes omitted). The post-conviction court ultimately denied peti- tioner’s claim. The court reasoned that appellate counsel had acted reasonably because the claim of error in Evans I had involved only the failure to hold an OEC 104 hearing and had not implicated Southard. Therefore, the post-conviction court concluded, the reason for reversing petitioner’s con- viction on counts involving A did not extend to Counts 13 and 14, which involved B. The post-conviction court further concluded that petitioner had failed to establish prejudice because he failed to prove that “further action by his appel- late attorney would have changed” this court’s determina- tion on direct appeal that the error had not affected the ver- dicts on those two counts. Petitioner appealed the post-conviction court’s judg- ment, and this court affirmed. We understood the question before us to be whether petitioner had demonstrated that he was entitled to prevail as a matter of law on his claim of inadequate assistance. We explained that appellate work, like trial work, does not involve a one-size fits all approach; “there are a myriad of tactical decisions in how to best con- duct litigation that are properly the province of the attor- ney,” but deciding on the broader objectives of litigation— including which convictions to challenge on appeal—is the client’s decision to make. Evans III, 300 Or App at 337-38. 166 Evans v. Nooth
We then concluded that petitioner had failed to provide the necessary evidentiary context for us to conclude that he was entitled to prevail as a matter of law.2 The Supreme Court allowed review and reversed our decision. The court stated, “As can be seen, the question before the post-conviction court and framed by the parties on appeal was whether, in responding to the state’s petition for reconsideration of Evans I, appellate counsel had pro- vided inadequate assistance in failing to argue that the trial court’s erroneous admission of the doctor’s testimony had required reversal of all convictions, including on Counts 13 and 14. But the Court of Appeals did not address that ques- tion.” Evans IV, 368 Or at 165. Rather, the Supreme Court explained, we had sua sponte “imposed an evidentiary bur- den on petitioner to establish facts concerning the objectives of his earlier appeal that had not been at issue below”—that is, we had “in effect affirmed the post-conviction court’s judgment by invoking the ‘right for the wrong reason’ prin- ciple.” Id. at 166. The court concluded that our approach had prejudiced petitioner, because he “had no reason to offer evi- dence of that nature to the post-conviction court.” Id. And, accordingly, the Supreme Court reversed and remanded for us “to consider petitioner’s assignment of error as framed by the parties before the post-conviction court and in their Court of Appeals briefing.” Id. at 167. With the Supreme Court’s directive in mind—and, in light of that court’s observation that petitioner had no reason to offer evidence regarding his appellate objectives in the post-conviction court—we proceed upon what we have
2 We concluded: “Here, petitioner presented no evidence of the objectives of his appellate litigation. Consequently, on appeal petitioner is forced to advance a cate- gorical argument that all appellate attorneys render constitutionally inad- equate or ineffective representation when they fail to challenge each and every count of conviction. For the reasons we have discussed, that argument fails. Alternatively, petitioner may be relying on an unspoken argument that, absent contrary evidence, a defendant is presumed to want to vigorously chal- lenge each and every criminal charge as the objective of his litigation, both at trial and on appeal. But that argument, too, must fail. * * * Accordingly, we cannot conclude that the facts in evidence entitled petitioner to a favorable decision as a matter of law.” Evans III, 300 Or App at 339. Cite as 318 Or App 162 (2022) 167
been given, which is the Supreme Court’s assumption that petitioner’s intention was to obtain a retrial on all convic- tions. We assess the adequacy of appellate counsel’s repre- sentation on direct appeal in light of that. To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show “that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). In determining whether coun- sel’s actions or inaction reflected an absence of “professional skill and judgment,” we try to evaluate the lawyer’s conduct “from the lawyer’s perspective at the time, without the dis- torting effects of hindsight.” Lichau v. Baldwin, 333 Or 350, 360, 39 P3d 851 (2002). For that reason, “an appellate deci- sion issued after petitioner’s trial cannot, on its own, demon- strate that trial counsel failed to exercise reasonable profes- sional judgment in failing to spot a debatable legal issue.” Antoine v. Taylor, 368 Or 760, 769, 499 P3d 48 (2021). With those principles in mind, we turn to the ques- tion of counsel’s performance: Would an appellate attorney, exercising reasonable skill and judgment at the time of petitioner’s direct appeal, have argued that the trial court’s erroneous admission of Koeller’s medical diagnosis of abuse required reversal of all convictions rather than conceding, as appellant’s counsel did on reconsideration, that Counts 13 and 14 were unaffected by the trial court’s error? Our answer to that question is yes. First, we begin by clarifying the scope of petitioner’s post-conviction claim. Although much of the focus of this post-conviction case has been on appellate counsel’s conces- sion at the reconsideration stage, petitioner’s claim itself is slightly broader than that. Petitioner’s allegations included the following: “On October 1, 2009, before oral argument on petitioner’s direct appeal, the Oregon Supreme Court decided State v. Southard, 347 Or 127, 218 P3d 104 (2009). Based upon this decision, petitioner’s appellate counsel knew or should have known that, given the evidence received by the jury as alleged in paragraph 47 above [setting out the proof at 168 Evans v. Nooth
trial], the trial court’s failure to grant petitioner an OEC 104 hearing required a reversal of petitioner’s convictions for offenses against ‘A’ and ‘B.’ “On or after October 1, 2009, appellate counsel failed to request that the Court of Appeals reverse and remand Counts 13 and 14 based on State v. Southard, 347 Or 127, 218 P3d 104 (2009), and on grounds that, together with the evidence identified in paragraph 47 above, Dr. Koeller’s expert opinion testimony diagnosing ‘A’ with sexual abuse, improperly vouched for the credibility of both ‘A’ and ‘B’ and created a substantial risk that the jury was prejudiced by that testimony when evaluating the credibility of both ‘A’ and ‘B.’ Instead, appellate counsel improperly conceded that peti- tioner’s convictions involving ‘B’ on Counts 13 and 14, were unaffected by the trial court’s error. “Competent appellate counsel, exercising reasonable professional skill and judgment, would interpret State v. Southard, 347 Or 127, 218 P3d 104 (2009) to support rever- sal and remand of Counts 13 and 14 for the reasons alleged above and would not concede that Counts 13 and 14 should be affirmed.” (Emphasis added; paragraph numbering omitted.) As those paragraphs make clear, appellate coun- sel’s concession was the final manifestation of counsel’s alleged inadequacy in failing to appreciate the significance of Southard and failing to argue that the admission of Koeller’s testimony also affected the jury’s verdicts as to B. That broader lens is significant, both in terms of evaluating counsel’s performance and any resulting prejudice, as dis- cussed later. Petitioner filed his opening brief on direct appeal at the end of 2008. Petitioner’s first assignment of error on direct appeal asserted that “[t]he trial court abused its discretion when it failed to conduct an OEC 104 hearing to determine whether Koeller’s medical diagnosis of sexual abuse was scientifically valid,” and he relied on the Supreme Court’s decision in State v. Marrington, 335 Or 555, 73 P3d 911 (2003). In arguing for reversal based on that eviden- tiary error, petitioner did not distinguish among convictions between A or B or develop much of an argument regard- ing prejudice—even as to A. His opening brief stated, “For Cite as 318 Or App 162 (2022) 169
these reasons, defendant respectfully request[s] that this court, follow Marrington, reverse defendant’s convictions and remand to the trial court with instructions to conduct an OEC 104 hearing if the state chooses to offer Koeller’s testimony on retrial.”3 After petitioner filed his opening brief, but before the case was submitted, the Oregon Supreme Court issued its decision in Southard, a significant case concerning admissibility of medical diagnoses of child sexual abuse. In Southard, the defendant had been charged with sexu- ally abusing two siblings, a boy and a girl, who were both evaluated by physicians at an abuse assessment center. The doctor who evaluated the boy diagnosed him as having been abused, but the doctor who examined the girl was unable to reach a diagnosis. Southard, 347 Or at 131. The trial court in that case made a pretrial ruling that the diagnosis of sexual abuse was admissible, and the physician who exam- ined the boy testified at trial that, after consulting with the social worker who had interviewed the boy and the director of the abuse assessment center, she had diagnosed the boy as having been sexually abused. The jury heard that and other evidence of abuse and found defendant guilty of three counts of first-degree sodomy, two counts regarding the boy and one count regarding the girl. Id. The Supreme Court allowed review “to consider whether, under the circumstances presented here, a diagno- sis of sexual abuse is admissible scientific evidence.” Id. at 132. The court began by addressing “whether the evidence possesses sufficient scientific validity to be admissible.” 3 To the extent petitioner referred to harmless error, it was largely in the con- text of anticipating a contention from the state that the evidence could be deemed scientifically valid despite the failure to hold the hearing: “Moreover, despite any forthcoming arguments from the state, the trial court’s failure to determine whether Koeller’s testimony had a sufficient foun- dation cannot be deemed harmless error. The fact that this court has ruled other physician’s diagnosis of sexual abuse admissible as scientific evidence, based on a developed record as to how that physician reached that opinion, is of no import when the trial court below erroneously failed to require the state to make a similar showing. The issue in this case is whether Koeller’s diagnosis of sexual abuse was scientifically valid. Because of the error below, no record exists below from which to conclude that Koeller’s diagnosis was scientifically valid.” (Emphasis in original.) 170 Evans v. Nooth
Id. at 133. In the process, the court explained how a diagno- sis of child sexual abuse differs from other types of medical diagnoses: “A diagnosis of child sex abuse * * * determines whether conduct (an act of sexual abuse by another person) has occurred; the conduct is not complicated, and the ability to determine its occurrence often is a matter within a lay person’s competence. In this case, for example, if a lay person were to credit the boy’s statements that defendant made him and his sister engage in oral sex, then it follows that the children were sexually abused. It also follows that the doctor’s ultimate conclusion in this case—that sexual abuse had occurred—did not turn on an abstruse matter of science; rather, it turned primarily on the sort of credibility determination that lay jurors ordinarily make.” Id. at 134-35. Nonetheless, after evaluating the “totality of the procedures” and the record developed, as well as the methodologies used at the abuse center (which included a physical examination for evidence to corroborate the doctor’s conclusion), the court held that “the diagnosis possesses suf- ficient indicia of scientific validity to be admissible”—that is, that it should not automatically be excluded as “bad sci- ence.” Id. at 137, 139. That, however, was not the end of the inquiry in Southard. The court concluded that, although the evidence was scientifically valid, its probative value was substan- tially outweighed by the risk of prejudice it posed. The court explained that the evidence had relatively low probative value, because the doctor’s diagnosis, which was based on reports of oral sex, did not tell the jury anything that it was not equally capable of determining on its own. Id. at 140. On the other hand, the risk of prejudice was significant. Id. As the court explained: “The risk of prejudice, however, was great. The fact that the diagnosis came from a credentialed expert, surrounded with the hallmarks of the scientific method, created a sub- stantial risk that the jury may be overly impressed or preju- diced by a perhaps misplaced aura of reliability or validity of the evidence. [State v. Brown, 297 Or 404, 439, 687 P2d 751 (1984)]. As in Brown, the diagnosis is particularly problem- atic because the diagnosis, which was based primarily on an assessment of the boy’s credibility, posed the risk that Cite as 318 Or App 162 (2022) 171
the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer to the expert’s implicit conclusion that the victim’s reports of abuse are credible. See id. at 440-41 (reasoning that poly- graph evidence could effectively take over the jury’s tradi- tional function of judging the credibility of witnesses). In our view, the risk of prejudice substantially outweighs the minimal probative value of the diagnosis.” Southard, 347 Or at 140-41 (emphasis added; some internal quotation marks and alterations omitted). The court then reversed all of the convictions—involving abuse of the boy and the girl—without differentiating between the prejudice as to the two. Id. at 143 (“The state has not argued that the admission of that evidence was harmless, and our review of the record confirms that the state reasonably has declined to make that argument.”). As discussed above, in Evans I, we relied on Southard in concluding that the trial court erred in admitting Koeller’s diagnosis of sexual abuse. We held that “the trial court erred in failing to hold a hearing under OEC 104 to determine the admissibility of Koeller’s diagnosis.” Evans I, 236 Or App at 470. “That determination,” we explained, “would have encompassed an inquiry into the relevance of the evidence under OEC 401, whether the testimony would be helpful to the jury under OEC 702, and a weighing of prejudice under OEC 403. Southard, 347 Or at 139.” Evans I, 236 Or App at 470 (emphasis added). After Southard was decided, and at least by the point that we decided Evans I—in which we specifically identified the weighing of prejudice as a potential factor on remand—it should have been apparent to petitioner’s appel- late counsel that the erroneous admission of a diagnosis of sexual abuse as to A could have influenced the jury’s verdict as to the counts involving B as well. That is for two rea- sons: First, Southard itself involved that same scenario, and the Supreme Court had reversed all convictions. Second, Southard’s approach was not new; it was consistent with basic and well-established principles of prejudice involving evidentiary error. Then, and now, evidentiary error is not presump- tively prejudicial under Oregon law. See OEC 103(1). The 172 Evans v. Nooth
inquiry for whether erroneous admission of evidence requires reversal of a conviction is whether there is “little likelihood” that the admission of the evidence affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As we observed in 2008 in State v. Vargas-Samado, 223 Or App 15, 19, 195 P3d 464 (2008), “the correct focus of that inquiry is on the possible influ- ence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling. As an initial step, the court determines the particular evidentiary issue that is subject to harmless error analysis. After identifying the pertinent issue, the court considers the nature of the erro- neously admitted evidence in the context of other evidence on the same issue. In determining the possible influence of the error on the verdict, we also consider the importance of the erroneously admitted evidence to a party’s theory of the case. If erroneously admitted evidence relates to a central factual issue to the case, it is more likely to have affected the determination than if it dealt with a tangential issue. In short, our function is to determine whether, given the nature of the erroneously admitted evidence and its relation- ship, as framed by the parties’ presentations, to the matters essential to the jury’s verdict, there was little likelihood that that evidence affected the verdict.”
(Emphasis added.) Reasonable appellate counsel, applying that basic framework, should have recognized that the erroneous admission of a medical diagnosis of sexual abuse went to a central factual issue in the case on all charges: A’s cred- ibility. This was a case in which A, who is two years older than B, initially disclosed that she had been abused, and she had reported seeing B being abused by petitioner as well. B, however, had not disclosed abuse until much later; and, during trial, even by the prosecutor’s acknowledgment, B’s testimony was less compelling. The prosecutor told the jury, “Now, it would be foolish for me to stand up here and argue to you that [B’s] disclosures and [B’s] testimony was as compelling as [A’s]. It was not.” Rather, the prosecu- tor explained that A’s testimony was critical to the jury’s deliberations: Cite as 318 Or App 162 (2022) 173
“Next in the case you heard from what I would submit to you was the most important witness in the case and that was [A]. That, I expect, will be the center piece of your dis- cussions, of defense counsel’s argument and of your ver- dict is what [A] said, what [A] said here on Tuesday, what she said when she first disclosed the sexual abuse to the psychologist * * *, what she said when she went to CARES, what she said when she went and had therapy * * *.” What she first disclosed to the psychologist, and what that psychologist testified to at trial, was that A “said that [peti- tioner] had had [B] come in and be involved in the sexual abuse, that [petitioner] had touched [B’s] penis and had [B] touch his penis.” The prosecutor also relied heavily on Koeller’s testi- mony, including her diagnosis of sexual abuse, to bolster A’s credibility and corroborate her version of events and disclo- sures of abuse. The prosecutor argued, “After the kids testi- fied, then yesterday was—I think you all agree—a full day of testimony. Second only to [A] in terms of impact on this case was the testimony of Dr. Paula Koeller.” Given the overlapping proof, intertwined testimony involving the abuse of A and B, the relative strength of A’s and B’s testimony, and the prosecutor’s reliance on A’s and Koeller’s testimony, reasonable appellate counsel should have appreciated that the erroneously admitted diagnosis of sexual abuse had the potential to affect the jury’s deliber- ations as to all counts, including the counts involving B. As Southard explained, the risk of prejudice from the errone- ously admitted diagnosis of sexual abuse was that the jury would hear that diagnosis from a credentialed expert and defer to Koeller’s implicit conclusion that A’s reports of abuse were credible.4 And, given the prosecutor’s heavy reliance on A’s credibility to prove the charges involving B, the erro- neous admission would tend to affect those verdicts as well. See State v. Wood, 253 Or App 97, 102, 289 P3d 348 (2012) (reversing convictions where factfinder’s verdict “rested
4 Koeller was asked on direct examination, “And how important is the inter- view to your ultimate diagnosis or recommendation?” Koeller responded, “Uhm, I would not be able to make a diagnosis of sexual abuse with just this finding. It takes both the disclosure—well, it takes all parts. I mean, it takes the disclosure and the example in order to make a diagnosis.” 174 Evans v. Nooth
on the credibility and corroboration of B’s testimony, and the improperly admitted hearsay evidence bore directly on both”). In fact, other appellate attorneys were making similar arguments around the same time in cases involv- ing multiple victims and erroneously introduced diagnoses of sexual abuse. In State v. Freitas, 243 Or App 231, 237, 259 P3d 46 (2011), rev den, 351 Or 545 (2012), the defen- dant argued that “Southard instructs that the admission of a diagnosis of sexual abuse as to one victim will always cre- ate a substantial risk that the jury will defer to that diag- nosis in judging the credibility of all the victims in a case.” We rejected that categorical argument, instead applying our ordinary harmless error analysis and examining the poten- tial effect of the erroneously admitted evidence on the jury’s verdict. In doing so, we observed that the expert’s testimony about one victim did not rely upon or comment on the other victim’s claims of abuse and we found “no other indication in the record that defendant’s convictions for the abuse of [one victim] were based on [the other victim’s] testimony, or on the erroneously admitted expert testimony. Southard, therefore, does not require reversal of the charges as to both victims.” Id. at 238-39. Shortly thereafter, in State v. Cox, 248 Or App 325, 327, 273 P3d 299 (2012), we again addressed a defendant’s argument that, “because the erroneously admitted diagno- sis affected the jury’s decision to convict him on the charges involving E, who had not been diagnosed as having been sexually abused, all of defendant’s convictions, not just those involving K, should be reversed.” We framed the question in terms of ancillary prejudice: “[B]ecause—as we concluded above—K’s diagnosis likely affected the jury’s conclusion about the credibility of K’s testimony concerning his abuse, did that conclusion have the ancillary consequence of affect- ing the jury’s determination of whether E’s testimony about her abuse was also credible?” Id. at 331. In contrast to the record in Frietas, we concluded in Cox that the admission had ancillary consequences for three reasons: (1) K’s cred- ibility was inextricably tied to E’s credibility and, thereby, likely served an important role in the jury’s determination of the truthfulness of E’s testimony; (2) the prosecutor’s Cite as 318 Or App 162 (2022) 175
comments during his closing argument purposely joined K and E’s credibility into a single consideration for the jury and strongly suggested that the diagnosis showed that both victims were telling the truth; and (3) K’s testimony cross-corroborated various aspects of E’s testimony regard- ing her abuse.” Id. at 331-32. The superintendent points out that those cases were not decided until after the direct appeal in this case. That is true, but it is beside the point. Cox and Frietas did not change the harmless error analysis; they simply applied existing principles to factual scenarios involving multiple abuse victims and an error in admitting an abuse diag- nosis as to one victim. There is no reasonable explanation for why petitioner’s appellate counsel did not do that same thing on direct appeal, either in briefing before our decision in Evans I or, at the very least, after the issue was flagged in the state’s petition for reconsideration. In ruling to the contrary, the post-conviction court concluded that counsel had “no basis” for objecting to the state’s petition for reconsideration because Southard was distinguishable: “There was no basis for such an objection. The counts that were reversed related to A and were reversed because the trial court failed to conduct a necessary hearing to deter- mine the admissibility of expert testimony that A had been sexually abused. State v. Southard, 347 Or 127 (2009), does not apply. In this case there was physical evidence of pos- sible abuse so an expert could give a diagnosis of sexual abuse if the testimony were otherwise admissible. The rea- son for the other counts being remanded for further consid- eration was not based on a Southard argument. Since the reason for the reversal and remand on the other counts did not apply to counts 13 and 14, Petitioner’s appellate attor- ney was not ineffective for conceding that counts 13 and 14 were affirmed.” That analysis misstates the prejudice inquiry applied by an appellate court. When evidence is erroneously admitted, we consider how that error affects the jury’s deliberations, not simply the reason for the error or what might occur on remand. In this case, regardless of whether the state could have laid the foundation for admission of the medical 176 Evans v. Nooth
diagnosis, the fact remains that it did not, and we declined in Evans II to remand the case on a more limited basis. Thus, the question for appellate counsel was not whether the evidence was erroneously admitted as to B for the same reason it was erroneously admitted as to A. Instead, the question was whether the erroneous admission of the medi- cal diagnosis had a tendency to taint the jury’s verdict as to both children by bolstering A’s testimony and corroborating her reports of abuse of herself and B.
For the reasons stated above, we conclude that appel- late counsel failed to exercise reasonable professional skill and judgment when she failed to argue on direct appeal— and then further conceded in response to the state’s petition for reconsideration—that the verdicts on Counts 13 and 14 “were affirmed and remanded for resentencing.” At the very least, appellate counsel should have responded to the state’s petition by alerting this court that (a) our opinion had not dealt with those convictions (either expressly or with a tag line that said “otherwise affirmed”) and (b) that, under Southard and our typical assessment of prejudice, all counts must be reversed.
Next, we turn to the question of prejudice. A peti- tioner seeking post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish not only that compe- tent appellate counsel would have asserted the claim, but that “had the claim of error been raised, it is more probable than not that the result would have been different. In short, [petitioners] must show that [they were] prejudiced.” Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987). Petitioner satisfied that standard. In this case, not only did appellate counsel have a plausible argument on prejudice that should have been asserted; petitioner had a winning argument. If petitioner’s counsel had presented a developed prejudice argument to this court, either before Evans I or on recon- sideration (considering that Southard had been decided after his initial briefing), he likely would have prevailed on that claim, just as the defendant in Cox had, and his con- victions on Counts 13 and 14 would have been reversed and remanded along with the counts involving A. Cite as 318 Or App 162 (2022) 177
In concluding otherwise, the post-conviction court reasoned that we had already “determined that the reasons for reversing the other counts did not affect counts 13 and 14,” so “[p]etitioner did not prove that further action by his appellate attorney would have changed that determination.” The superintendent advances a similar argument, asserting that appellate counsel’s response to the petition for recon- sideration amounted to a concession that this court had already determined harmlessness, not a concession on the merits of that issue. The superintendent also argues, “even if petitioner is correct that appellate counsel conceded that the error did not affect counts 13 and 14, this court is not bound by a party’s concession on a legal issue.” We reject that line of reasoning. First, it does not account for the breadth of petitioner’s claim, which is not strictly limited to the concession on reconsideration but fairly can be read to encompass appellate counsel’s post-Southard failure to make any prejudice argument. Second, and relatedly, it fails to appreciate the role that appellate coun- sel’s arguments and concessions play in a harmless error analysis on appeal. It is correct that this court is not bound by concessions of law, but it is also an appellant’s burden to demonstrate that an evidentiary error is prejudicial. The Supreme Court’s decisions in State v. Leistiko, 352 Or 172, 282 P3d 857 (Leistiko I), adh’d to as modified on recons, 352 Or 622, 292 P3d 522 (2012) (Leistiko II), are illustrative. In the court’s original opinion, it explained: “Defendant argues that, if the trial court erred in admit- ting the fourth woman’s testimony, the error prejudiced him. The state does not argue that the error was harmless, and we agree that the admission of the fourth woman’s testimony prejudiced defendant. The remaining question is the effect of the error. On appeal and again on review, defendant has argued that the erroneous admission of the fourth woman’s testimony requires that his ‘convictions’ be reversed, but he has not specified which convictions, other than his two first-degree rape convictions, may have been affected by the error. Given the absence of any argument by defendant that the erroneous admission of the fourth wom- an’s testimony affected any conviction other than his first- degree rape convictions, we reverse the Court of Appeals decision to the extent that it affirmed the two first-degree 178 Evans v. Nooth
rape convictions. Cf. OEC 103(1) (evidential error is not pre- sumed prejudicial).” Leistiko I, 352 Or at 189 (emphases added). The defendant then sought reconsideration, argu- ing that the court had missed his harmless error argument; alternatively, he asked the court to consider it for the first time on reconsideration. The Supreme Court allowed recon- sideration but adhered to its decision, concluding that peti- tioner had not raised the issue in his earlier briefing and that it was not appropriate to consider it for the first time on reconsideration. Leistiko II, 352 Or at 624. In this case, our earlier decisions in Evans I and Evans II were affected by appellate counsel’s failure to exer- cise reasonable professional skill and judgment in develop- ing a harmless error argument regarding Counts 13 and 14. Had appellate counsel done so, it is more probable than not that petitioner would have obtained a reversal of those convictions. For that reason, petitioner is entitled to post- conviction relief. That leaves the question of remedy. As the superin- tendent points out, after our decision in Evans II, the state dismissed the counts involving A and proceeded to resen- tencing on counts involving B. We generally agree with the superintendent that the case should be returned to the sta- tus it would have been in had petitioner’s counsel provided constitutionally adequate representation—that is, with petitioner facing the possibility of retrial on the remanded counts involving A as well as B. However, the post-conviction court has not had the opportunity to address the question of what remedy to fashion in light of all the circumstances, and we therefore reverse and remand for the post-conviction court to address that question in the first instance. Reversed and remanded.