State v. GRAUE , 240 Or. App. 460 ( 2011 )

245 P.3d 1289 (2011) 240 Or. App. 460

STATE of Oregon, Plaintiff-Respondent,
v.
Scott Vincent GRAUE, Defendant-Appellant.

CR0700412; A138031.

Court of Appeals of Oregon.

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

Peter Gartlan, Chief Defender, and Ernest G. Lannet, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney-in-Charge, Criminal Appeals, filed the brief for respondent.

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

PER CURIAM.

Defendant appeals a judgment of conviction for multiple counts of first-degree sodomy and first-degree sexual abuse, arguing that the trial court erred in admitting expert testimony from a CARES nurse practitioner diagnosing child sexual abuse in the absence of any supporting physical evidence. See State v. Southard, 347 Or. 127, 218 P.3d 104 (2009). Although defendant did object to the admission of the diagnosis as scientific evidence, it is unclear that his objection was sufficient to preserve his current argument that admission of the diagnosis was improper pursuant to Southard. However, the trial court's error in admitting that evidence is 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. In light of our resolution of that issue, we do not reach defendant's second assignment of error.

Reversed and remanded.