State v. Miller , 238 Or. App. 338 ( 2010 )

242 P.3d 689 (2010) 238 Or. App. 338

STATE of Oregon, Plaintiff-Respondent,
v.
Joel Shane MILLER, Defendant-Appellant.

08C48743; A142126.

Court of Appeals of Oregon.

Argued and Submitted September 20, 2010. Decided October 27, 2010.

Jason E. Thompson, Salem, argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General.

Before BREWER, Chief Judge, and EDMONDS, Senior Judge.

PER CURIAM.

Defendant appeals from his convictions on two counts of first-degree sexual abuse, arguing that the trial court erred in admitting expert testimony by a pediatrician diagnosing sexual abuse in the absence of any physical evidence. Defendant did not preserve that argument in the trial court, however, admission of such evidence is plain error under State v. Southard, 347 Or. 127, 218 P.3d 104 (2009). 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.