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State v. Feller

Summarized by: 

Date Filed: 12-29-2011
Case #: A141928
Ortega, P.J. for the Court; Brewer, C.J.; & Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/A141928.pdf

Criminal Law: The admission of a diagnosis of "concerning" for sexual abuse, without supporting physical evidence is plain error.

Defendant Feller was convicted of sexually abusing a five-year old boy. At trial, the physician's diagnosis of "concerning" for sexual abuse was admitted without objection. Defendant argued that it is plain error to allow such a diagnosis without any supporting physical evidence. The State argued that because the diagnosis was of "concerning" for sexual abuse, and not a conclusive diagnosis of sexual abuse, there was no plain error. The Court held that under State v. Southard, 347 Or 127 (2009), any admission of a diagnosis of sexual abuse, without supporting physical evidence is plain error. Reversed and Remanded.