State v. Orellano

245 P.3d 1290, 240 Or. App. 462, 2011 Ore. App. LEXIS 24

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for first-degree sexual abuse and first-degree burglary.¹ He assigns error to the trial court’s admission of expert testimony diagnosing sexual abuse in the absence of any physical evidence. See State v. Southard, 347 Or 127, 218 P3d 104 (2009). Although defendant did not object to the admission of the diagnosis, he contends that admission of that evidence was plain error under Southard. We agree that the admission of the evidence was plain error and, for the reasons set forth in State v. Merrimon, 234 Or App 515, 522, 228 P3d 666 (2010), and State v. Lovern, 234 Or App 502, 513-14, 228 P3d 688 (2010), we exercise our discretion to correct that error. Accordingly, we reverse and remand.

Reversed and remanded.

1 The burglary charge was based on defendant’s entry into the victim’s home with “the intent to commit the crime of sex abuse therein[.]”