DocketNumber： 080733290 A142938
Judges： Ortega, Presiding Judge, and Rosenblum, Judge, and Sercombe, Judge
Filed Date： 3/23/2011
Status： Precedential
Modified Date： 3/3/2016
Court of Appeals of Oregon.
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and ROSENBLUM, Judge, and SERCOMBE, Judge.
PER CURIAM.
Defendant appeals, challenging convictions following a jury trial on three counts of first-degree sodomy, ORS 163.405; three counts of first-degree sexual abuse, ORS 163.427; one count of private indecency, ORS 163.467; and three counts of endangering the welfare of a minor, ORS 163.575. He assigns error to the trial court's admission, over his objection, of evidence of a nurse practitioner's diagnosis, made in the absence of any physical evidence, that the victim had been sexually abused.
On appeal, defendant contends, in part, that, pursuant to State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), the trial court's admission of the diagnosis was reversible error.[1] The state concedes that, in light of *1291 Southard, "the trial court committed reversible error" in admitting that evidence. According to the state, "[t]he proper remedy is to reverse defendant's convictions and remand for a new trial." The state's concession is well founded, and, accordingly, we accept it. Thus, we reverse and remand for a new trial.
Reversed and remanded.
[1] In light of our resolution of defendant's first assignment of error, we do not reach his second assignment, that, in light of State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010), the trial court committed plain error in admitting testimony from the nurse practitioner "regarding her assessment of the victim's statements that formed the basis for her medical diagnosis of sexual abuse."