review from the Court of Appeals. (CC 09072338C) (CA A154810)
and submitted June 15, 2017
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.
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. [**]
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.
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.
Or. 286] NAKAMOTO, J.
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.
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
The Alleged Abuse
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.
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.
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
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."
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.
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.
The Investigation and Charges
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.
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.
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.
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.
trial, M testified in conformance with the recorded CARES
interview. M testified regarding the camping incident, the
incident from years earlier,  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."
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.
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]."
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.
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?
"[PROSECUTOR]: Okay. But you're-you're not a
psychologist or anything like that?
"[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
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.
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.
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
the jury was recalled to the courtroom, the prosecutor
continued to question Palfreyman about grooming behavior in
"[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
"[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
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
[363 Or. 292] "[PROSECUTOR]: In this particular
interview was there any behavior which could be considered
"A: Um, when she just talked about the massaging where
she wanted it on her neck but he would go lower into her
prosecutor ended his examination there.
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
"[DEFENSE COUNSEL]: Now you mentioned spending time
with-spending time together.
"A: Mmm hmm (INDICATING YES).
"[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?
"[DEFENSE COUNSEL]: Okay. If I decide to take my child
out for an ice cream cone I'm grooming them to abuse ...