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State v. Henley

Supreme Court of Oregon

July 19, 2018

STATE OF OREGON, Respondent on Review,
ROBERT LEWIS HENLEY, aka Sonny Henley, Petitioner on Review.

          On review from the Court of Appeals. (CC 09072338C) (CA A154810) [*]

          Argued and submitted June 15, 2017

          Mary M. Reese, Senior Deputy Public Defender, Salem, argued the cause and fled the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before, Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

          [363 Or. 285] Case Summary: During defendant's trial on charges that he sexually abused his 11-year-old stepdaughter, the trial court, over defendant's objection, permitted a forensic interviewer to testify generally about the concept of sexual offenders "grooming" children for later sexual activity and to testify that defendant's behavior in massaging the child could be considered "grooming" if he had had the requisite intent. The trial court did not require that the state first establish that the testimony about grooming was scientifically valid and reliable. Defendant was convicted and the Court of Appeals affirmed. Held: Evidence concerning grooming of children for later sexual abuse is scientific evidence under OEC 702, and, therefore, the trial court erred in permitting a forensic interviewer to define the concept of grooming and to testify that defendant had engaged in behavior that could be considered grooming, without first requiring the state to establish the scientific validity of that concept. Additionally, that error was not harmless.

         The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.

          [363 Or. 286] NAKAMOTO, J.

         In this criminal case arising out of allegations of child sexual abuse, the issue is whether the expert testimony that the trial court allowed about "grooming" children for later sexual activity is "scientific" evidence that requires a foundational showing of scientific validity under OEC 702. At trial, over defendant's objection, the trial court permitted a forensic interviewer to testify about defendant's behavior that may have constituted "grooming" of the victim for sexual abuse if defendant had the requisite intent, without the state first establishing that the testimony about grooming was scientifically valid and reliable.

         Defendant was convicted of first-degree sexual abuse and attempted first-degree sodomy. On defendant's appeal, the Court of Appeals held that the testimony was not scientific evidence for which a foundation was required. State v. Henley, 281 Or.App. 825, 386 P.3d 126 (2016). For the reasons that follow, we conclude that the testimony was scientific evidence and that the trial court erred in admitting it without a proper foundation. Given the record, we decline to decide the validity and reliability of the expert testimony on review. We also conclude that the admission of the testimony was not harmless. Therefore, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand to the trial court for further proceedings.

         I. FACTS

         A. The Alleged Abuse

         Defendant's trial centered on whether he had sexually abused his stepdaughter, M, during a family camping trip. As to that specific event, the state presented the following evidence.

         At the time of the alleged abuse, defendant had been married to M's mother for nine years. M, who was then 11 years old, lived with her mother and defendant in Idaho. One summer weekend, defendant, M, her mother, two of M's siblings, and an adult male friend of the family went camping in eastern Oregon. They all slept in a camper-a pop-up tent trailer with fold-out beds on either end of a middle living space. Defendant and M's mother slept in one fold-out [363 Or. 287] bed and M's siblings slept in the other. M slept on a mattress in the middle area, next to her mother and defendant. The family friend slept on another mattress in the middle area.

         Defendant and the friend stayed up late and went into the camper after the others were already in bed. M's mother woke up and tried to persuade defendant to come into bed with her. Instead, defendant sat down next to M on M's bed, and M's mother went back to sleep. M awoke briefly while defendant was lying on her bed, and then she fell back to sleep.

         M was awakened again early the next morning, when defendant, who was lying beside her, pulled down his own pants and pulled M's sweatpants and underwear to her ankles. He inserted his fingers into her vagina. In an effort to stop him from touching her, M rolled over onto her stomach and then onto her side. Defendant put his hands on M's sides, attempted to spread her buttocks with his thumbs, and put his penis in her "butt crack." Defendant rubbed against her, ejaculated, and said, "Ahh."

         M then sat up. Defendant also sat up and asked her if she was okay. M's mother then woke up, and defendant lay back down in M's bed. M's mother asked M if anything was wrong, but M answered no. M's mother asked M to come up into her bed, and M complied and fell asleep. When M woke up, defendant was not in the camper.

         Later that day, M told her mother what had happened. M's mother replied that she did not know what to say, but that she would arrange a mattress to make a barrier to prevent defendant from getting into bed with her again that night. Sometime later, M's mother told defendant that M had said he had touched her and rubbed his penis against her buttocks. Defendant responded that he did not know what had happened, as he had been asleep.

         B. The Investigation and Charges

         The police became involved later that month. M's father and his fiancee also lived in Idaho. When the camping trip was over, M, as previously planned, went to stay with her father and his fiancee for a month. M did not immediately tell her father what had happened on the camping [363 Or. 288] trip. M eventually told her father's fiancee about massages that defendant had given her, and she relayed that information to M's father. M's father asked M to tell him if any adult had ever touched her inappropriately. Later that day, M told her father and his fiancee about the abuse in the camper. M's father called the local police in his community, where the investigation began.

         Courtney Palfreyman, a forensic interviewer for Children at Risk Evaluation Services (CARES) at St. Luke's Hospital in Boise, Idaho, interviewed M. Palfreyman's interview of M was video-recorded. During the interview, M told Palfreyman about the recent camping incident. In addition, she described massages that defendant had given her that made her uncomfortable. M also said that, when she was five or six years old, defendant had crawled into bed with her one night and asked her to touch his penis. M explained that she did not comply and instead told defendant that she needed to go to the bathroom and went to find her mother.

         Because the camping incident occurred in Oregon, the case was transferred to Malheur County, Oregon. Defendant was charged with one count of first-degree sexual abuse and one count of first-degree sodomy based on his conduct in the camper.

         C. Trial

         Citing OEC 403 and OEC 404(3), defendant filed a motion in limine seeking to exclude evidence from his impending jury trial, including testimony that defendant had massaged M inappropriately. The state responded that evidence of inappropriate massages was admissible to demonstrate defendant's "grooming behavior as part of [his] planning or preparation for the later sexual assault" of M. The trial court denied defendant's motion.

         At trial, M testified in conformance with the recorded CARES interview. M testified regarding the camping incident, the incident from years earlier, [1] and the massages [363 Or. 289] defendant had given her. The massages were the subject of the expert's grooming testimony at issue. During M's direct examination, she testified that defendant had been giving her massages from time to time, at her request. M explained that defendant had massaged her shoulders but also "down [her] legs and up by [her] chest." M did not like when defendant massaged her chest, though, because she "thought he was going too far into [her] other areas." M also testified that she told her mother that defendant was massaging "too close into other areas [she] didn't like."

         Palfreyman also testified for the state. She told the jury that she has a bachelor's and a master's degree in social work and received specialized training in forensic interviewing, both basic and advanced, with the American Professional Society on the Abuse of Children. She stated that she had over 10 years of experience working in child welfare and protection and as a forensic interviewer. She had worked for the State of Idaho from 1999 and then had been a forensic interviewer with CARES since 2005. At the time of the trial in 2009, she had completed over 600 forensic interviews.

         During Palfreyman's testimony, the prosecutor played for the jury the video recording of her interview of M at CARES, pausing it at various points to ask Palfreyman clarifying questions. In the recorded interview, M said that she had told her father's fiancee about several massages from defendant and described the massages to Palfreyman:

"When I'm sore, he'll massage me, but he won't get where I need him to. He'll go all over the place [gesturing and putting her hands palms down in the middle of her chest]. And, like last month, I asked him to massage my neck 'cause I had a neck ache. I'm never gonna do that again because of what happened, because I'm so scared of him-with the camping. But, I was asking him to massage my neck. He was massaging it, and he was going down here [putting her hands in the middle of her chest], and then I asked him to [363 Or. 290] stop going down here [putting her hands to her chest]. And he was all, okay; then he went down here [gesturing toward her lower back]."

         In the recording, Palfreyman confirmed that M was pointing to her lower back, and M described that defendant had also massaged her on the back of her upper legs that time.

         After the conclusion of the video, the prosecutor asked Palfreyman the following question about her training on grooming: "In terms of this particular interview or in general, have you had any training regarding a concept called grooming?" Palfreyman answered in the affirmative. Defendant objected to Palfreyman's qualification to testify as an expert on grooming behavior. In response, the prosecutor requested an opportunity to qualify Palfreyman as an expert and asked her several other questions about her training on grooming:

"[PROSECUTOR]: So you've actually had training in the area of grooming is that correct?
"A: Yes.
"[PROSECUTOR]: Okay. But you're-you're not a psychologist or anything like that?
"A: No.
"[PROSECUTOR]: Okay. What sort of training have you had?
"A: Um, just due to my forensic interview training we talk about grooming (INAUDIBLE) leading up to offending, and through my college courses, different trainings that I've had."

         When the prosecutor proceeded to ask Palfreyman to describe what she had been taught to look for in terms of grooming behavior, defendant again objected, on the ground that the prosecutor had not laid a proper foundation for that testimony-that is, that Palfreyman was not an expert and had had no special training with regard to grooming. The prosecutor responded that he was asking Palfreyman about her "training and experience" with regard to grooming. At that point, defense counsel suggested that the matter should be argued without the jury present.

          [363 Or. 291] Outside the presence of the jury, the court asked the prosecutor whether he would go beyond asking Palfreyman to define grooming and her training, by asking whether she saw signs of grooming. The prosecutor told the court that Palfreyman had "been taught to recognize certain behaviors which could be considered grooming" and argued that, although he would ask if she saw any signs of grooming in this case, he was not asking for a scientific, medical, or expert opinion. Defendant argued that testimony about grooming was similar to testimony about syndrome evidence or a diagnosis of sexual abuse and that, like evidence on those topics, "there has to be some sort of scientific validity" to it, which had not been shown in this case.

         The trial court overruled the objection. It permitted Palfreyman to define what grooming behavior is and to describe behaviors by defendant that concerned her. The court also granted defendant a continuing objection to evidence concerning sexual grooming.

         Once the jury was recalled to the courtroom, the prosecutor continued to question Palfreyman about grooming behavior in general:

"[PROSECUTOR]: So in terms of grooming can you just briefly describe some of the activities that you're familiar with that might be considered grooming?
"A: Some of the activities would include spending time together, sometimes allowing the child to do things the parents wouldn't allow like video games when it's not allowed or alcohol use. It would include things like giving them money for things, tickling, massaging, that sort of thing.
"[PROSECUTOR]: So the grooming's done by the offender to sort of lay the groundwork for later abuse?
"A: Yeah, to build trust and weaken defense[s] of the child:”

         (Emphasis added.)

         The prosecutor then moved to a question about defendant's behavior, asking whether Palfreyman had seen "anything in this case which you might consider or might be considered grooming?" Defense counsel objected, and the court directed the prosecutor to rephrase the question. The prosecutor resumed:

[363 Or. 292] "[PROSECUTOR]: In this particular interview was there any behavior which could be considered grooming?
"A: Um, when she just talked about the massaging where she wanted it on her neck but he would go lower into her chest area."

         The prosecutor ended his examination there.

         On cross-examination, Palfreyman acknowledged that an adult who spent time with a child was not necessarily grooming the child for sexual abuse and that she had not spoken with defendant about his intentions. Defendant elicited the following testimony:

"[DEFENSE COUNSEL]: Now you mentioned spending time with-spending time together.
"[DEFENSE COUNSEL]: Surely you're not saying that anytime an adult spends time with a child that they're grooming them for sexual abuse.
"A: No, not every time.
"[DEFENSE COUNSEL]: So I'm reading to my child at night, in bed, I'm grooming them for sexual abuse in the future? That not true is it?
"A: No.
"[DEFENSE COUNSEL]: Okay. If I decide to take my child out for an ice cream cone I'm grooming them to abuse ...

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