Evans v. Nooth

                                       162

 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
                                   

     This post-conviction case is on remand from the Supreme Court for consideration of whether appellate counsel provided inadequate assistance on direct
appeal in failing to argue that the trial court’s erroneous admission of a doctor’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 appropriate remedy in the first instance.
    Reversed and remanded.



   On remand from the Oregon Supreme Court, Evans v.
Nooth, 

, 

 (2021).
   J. Burdette Pratt, Senior Judge.
   Jed Peterson and O’Connor Weber LLC filed the opening
brief for appellant. Michael James Evans filed the supplemental 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.
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           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, 

, 

 (2021) (Evans IV).
We had previously affirmed, Evans v. Nooth, 

, 

 (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], appellate 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, 

.
On reconsideration, we agree with petitioner that his appellate 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 disclosed 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 diagnosed A with having been sexually abused, based in part
   on physical evidence of abuse. Petitioner asked for a hearing 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, 

 n 4 (so noting).
164                                               Evans v. Nooth

  that the diagnosis was not scientific evidence, denied petitioner’s request for hearing, and admitted the doctor’s testimony. A jury convicted petitioner on eight counts involving 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, 

, 

 (2009) (then
  recently decided), and concluding that the trial court had
  erred in admitting the doctor’s testimony without conducting an OEC 104 hearing. State v. Evans, 

, 

 (Evans I), modified on recons, 

, 

 (2010) (Evans II); see also Southard, 

 (diagnosis of ‘sexual abuse’ not accompanied
  by physical evidence of abuse qualified as scientific evidence, but was not admissible under OEC 403, because it
  did not ‘tell the jury anything that it could not have determined 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, 

.
      “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 modifying 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, 

. 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
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   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, requiring 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 testimony, 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, 

 (emphasis in original; footnotes
omitted).
          The post-conviction court ultimately denied petitioner’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 conviction 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 appellate attorney would have changed” this court’s determination on direct appeal that the error had not affected the verdicts on those two counts.
          Petitioner appealed the post-conviction court’s judgment, 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 conduct litigation that are properly the province of the attorney,” but deciding on the broader objectives of litigation—
including which convictions to challenge on appeal—is the
client’s decision to make. Evans III, 

.
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 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. But the Court of Appeals did not address that question.” Evans IV, 

. Rather, the Supreme Court
explained, we had sua sponte “imposed an evidentiary burden 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’ principle.” 

. The court concluded that our approach had
prejudiced petitioner, because he “had no reason to offer evidence of that nature to the post-conviction court.” 

 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.” 

.
         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 categorical argument that all appellate attorneys render constitutionally inadequate 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 challenge 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, 

.
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been given, which is the Supreme Court’s assumption that
petitioner’s intention was to obtain a retrial on all convictions. We assess the adequacy of appellate counsel’s representation 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, 

, 

 (2017). In determining whether counsel’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 distorting effects of hindsight.” Lichau v. Baldwin, 

, 

 (2002). For that reason, “an appellate decision issued after petitioner’s trial cannot, on its own, demonstrate that trial counsel failed to exercise reasonable professional judgment in failing to spot a debatable legal issue.”
Antoine v. Taylor, 

, 

 (2021).
         With those principles in mind, we turn to the question 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 concession 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, 

, 

 (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, 

,
   

 (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 petitioner’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, 

, 

 (2009) to support reversal 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 counsel’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 discussed 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, 

, 

 (2003). In arguing for reversal based on that evidentiary error, petitioner did not distinguish among convictions
between A or B or develop much of an argument regarding prejudice—even as to A. His opening brief stated, “For
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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 sexually 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, 

. The trial court
in that case made a pretrial ruling that the diagnosis of
sexual abuse was admissible, and the physician who examined 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. 

         The Supreme Court allowed review “to consider
whether, under the circumstances presented here, a diagnosis of sexual abuse is admissible scientific evidence.” 

. 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 context 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 foundation 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

. In the process, the court explained how a diagnosis 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.”

. 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 sufficient indicia of scientific validity to be admissible”—that
is, that it should not automatically be excluded as “bad science.” 

.
         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 substantially 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. 

. On
the other hand, the risk of prejudice was significant. 

 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 substantial risk that the jury may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of
   the evidence. [State v. Brown, 

, 

   (1984)]. As in Brown, the diagnosis is particularly problematic because the diagnosis, which was based primarily on
   an assessment of the boy’s credibility, posed the risk that
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   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 polygraph evidence could effectively take over the jury’s traditional function of judging the credibility of witnesses). In
   our view, the risk of prejudice substantially outweighs the
   minimal probative value of the diagnosis.”
Southard, 

 (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. 

 (“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, 

. “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, 

.” Evans I, 

 (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 appellate 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 reasons: 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 presumptively 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, 

, 

 (2003). As we observed
in 2008 in State v. Vargas-Samado, 

, 

 (2008),
   “the correct focus of that inquiry is on the possible influence 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 erroneously 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 relationship, 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 credibility. 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 prosecutor explained that A’s testimony was critical to the jury’s
deliberations:
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        “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 discussions, of defense counsel’s argument and of your verdict 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 [petitioner] 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 testimony, including her diagnosis of sexual abuse, to bolster A’s
credibility and corroborate her version of events and disclosures of abuse. The prosecutor argued, “After the kids testified, 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 deliberations as to all counts, including the counts involving B. As
Southard explained, the risk of prejudice from the erroneously 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 erroneous admission would tend to affect those verdicts as well.
See State v. Wood, 

, 

 (2012)
(reversing convictions where factfinder’s verdict “rested

    4
      Koeller was asked on direct examination, “And how important is the interview 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 involving multiple victims and erroneously introduced diagnoses
of sexual abuse. In State v. Freitas, 

,

 (2011), rev den, 

 (2012), the defendant argued that “Southard instructs that the admission of
a diagnosis of sexual abuse as to one victim will always create a substantial risk that the jury will defer to that diagnosis 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 potential 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, 

, 

 (2012), we again addressed a defendant’s
argument that, “because the erroneously admitted diagnosis 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 affecting the jury’s determination of whether E’s testimony about
her abuse was also credible?” 

. In contrast to the
record in Frietas, we concluded in Cox that the admission
had ancillary consequences for three reasons: (1) K’s credibility 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
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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 regarding 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 diagnosis 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 determine the admissibility of expert testimony that A had been
   sexually abused. State v. Southard, 

 (2009), does
   not apply. In this case there was physical evidence of possible abuse so an expert could give a diagnosis of sexual
   abuse if the testimony were otherwise admissible. The reason for the other counts being remanded for further consideration 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 attorney 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 medical 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 appellate 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 petitioner 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 competent 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, 

, 

 (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 reconsideration (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 convictions on Counts 13 and 14 would have been reversed and
remanded along with the counts involving A.
Cite as 

 (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 reconsideration 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 counsel’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, 

,

 (Leistiko I), adh’d to as modified on recons, 

, 

 (2012) (Leistiko II), are illustrative. In
the court’s original opinion, it explained:
       “Defendant argues that, if the trial court erred in admitting 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 woman’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 presumed prejudicial).”
Leistiko I, 352 Or at 189 (emphases added).
         The defendant then sought reconsideration, arguing 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 reconsideration but adhered to its decision, concluding that petitioner 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 exercise reasonable professional skill and judgment in developing 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 superintendent points out, after our decision in Evans II, the state
dismissed the counts involving A and proceeded to resentencing on counts involving B. We generally agree with the
superintendent that the case should be returned to the status 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.