State v. Pekarek

277 P.3d 594, 249 Or. App. 400, 2012 WL 1332137, 2012 Ore. App. LEXIS 468

• Court: Court of Appeals of Oregon
• Decided: April 18, 2012
• Docket: CR060308; A143782
• Status: Published

Opinions

PER CURIAM

Defendant appeals a judgment of conviction for three counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree unlawful sexual penetration, ORS 163.408. He asserts that, in the absence of supporting physical evidence, the trial court erred in admitting evidence that the complainant had been diagnosed as having been sexually abused.¹ See State v. Southard, 347 Or 127, 218 P3d 104 (2009). Although defendant acknowledges that he did not preserve that issue before the trial court, he contends that the admission of the diagnosis was plain error under Southard. See ORAP 5.45(1).² We agree.

Since Southard, this court has repeatedly held that, in the absence of supporting physical evidence, a trial court’s admission of a diagnosis of sexual abuse is plain error. See, e.g., State v. Feller, 247 Or App 416, 419, 269 P3d 110 (2011); State v. Clay, 235 Or App 26, 30, 230 P3d 72 (2010) (“[T]he trial court’s admission, following Southard, of a medical expert’s diagnosis of child sexual abuse in the absence of physical evidence satisfies the requisites for ‘plain error’ under ORAP 5.45(1)[.]”). We are not persuaded by the state’s contention that we should do otherwise in this case. See Feller, 247 Or App at 421 (“At the time of the trial in this case, which occurred before Southard was decided, this type of diagnosis evidence was understood to be admissible.”); State v. Volynets-Vasylchenko, 246 Or App 632, 267 P3d 206 (2011) (even where diagnosis itself was not admitted into evidence, the trial court committed plain error under Southard in admitting, in the absence of physical evidence, treatment recommendations that implied a diagnosis had been rendered). Accordingly, we conclude that the trial court plainly erred in admitting the diagnosis 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 (2010), we exercise our discretion to correct that error.

Reversed and remanded.

1 We reject without discussion defendant’s assignments of error raised in his pro se supplemental brief.

2 Pursuant to ORAP 5.45(1), “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may consider an error of law apparent on the record.”