FILED: March 16, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHAUN PATRICK THOMAS,

Defendant-Appellant.

Columbia County Circuit Court
071336
A141439

Steven B. Reed, Judge.

Submitted on January 28, 2011.

Peter Gartlan, Chief Defender, and Joshua B. Crowther, Chief Deputy Defender, filed the opening brief and a supplemental brief for appellant. Shaun Thomas filed a supplemental brief pro se.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the opening brief for respondent. On the supplemental brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Matthew J. Lysne, Assistant Attorney General.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant appeals a judgment of conviction for four counts of first-degree sodomy,(1) ORS 163.405, contending that the trial court erred in admitting a pediatric nurse practitioner's expert diagnosis, in the absence of any physical findings, that the victim had been sexually abused. Defendant did not preserve that contention in the trial court. However, we agree with defendant that the admission of that diagnosis was "an error of law apparent on the record," ORAP 5.45(1), in light of the Supreme Court's decision in State v. Southard, 347 Or 127, 218 P3d 104 (2009). For the reasons stated in State v. Merrimon, 234 Or App 515, 522, 228 P3d 666 (2010), and State v. Lovern, 234 Or App 502, 513-14, 228 P3d 688 (2010), we exercise our discretion to correct that error. Accordingly, we reverse and remand.(2)

Reversed and remanded.


1. The jury also found defendant guilty of four counts of first-degree sexual abuse, ORS 163.427. The trial court merged the counts of sexual abuse into the counts of sodomy "for sentencing purposes." On appeal, the parties raise no issues concerning the court's ruling in that regard.

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2. Our disposition in that regard obviates the need to address defendant's other assignment of error concerning the trial court's admission of statements by the expert "that indicated that she believed the victim was credible" as well as various contentions in defendant's pro se brief concerning purported trial- and sentencing-related errors. Further, we reject without discussion defendant's remaining contention in his pro se brief concerning the amendment to the indictment.

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