FILED: October 27, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOEL SHANE MILLER,

Defendant-Appellant.

Marion County Circuit Court
08C48743
A142126

Albin W. Norblad, Judge.

Argued and submitted on September 20, 2010.

Jason E. Thompson 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

Reversed and remanded.

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 P3d 104 (2009).  For the reasons set forth 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.

Reversed and remanded.


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