State v. Orellano , 240 Or. App. 462 ( 2011 )

245 P.3d 1290 (2011) 240 Or. App. 462

STATE of Oregon, Plaintiff-Respondent,
v.
Selvin ORELLANO, Defendant-Appellant.

08FE0184; A140970.

Court of Appeals of Oregon.

Argued and Submitted December 16, 2010. Decided January 19, 2011.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter Gartlan, Chief Defender, and Elizabeth Corbridge Ranweiler, Deputy Public Defender, Office of Public Defense Services.

Anna M. Joyce, Assistant Attorney-in-Charge, Criminal Appeals, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

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 P.3d 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 P.3d 666 (2010), and State v. Lovern, 234 Or.App. 502, 513-14, 228 P.3d 688 (2010), we exercise our discretion to correct that error. Accordingly, we reverse and remand.

Reversed and remanded.

NOTES

[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[.]"