Submitted on remand September 24, 2018.
Washington County Circuit Court C142372CR, Suzanne Upton,
remand from the Oregon Supreme Court, State v.
Plueard, 363 Or. 599, 427 P.3d 184 (2018).
G. Lannet, Chief Defender, Criminal Appellate Section, and
Andrew D. Robinson, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jordan R. Silk, Assistant Attorney General, fled
the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: This case is on remand from the Supreme Court for
reconsideration in light of State v. Henley, 363 Or.
284, 422 P.3d 217 (2018), in which it held that-at least as
offered in the context of the trial in that case-evidence
about sexual grooming of children "was
'scientifc' evidence under OEC 702" that could
not be admitted "without frst requiring the state to
establish its scien-tifc validity." Id. at 304.
At trial, defendant was convicted of frst-degree sexual
abuse, ORS 163.427, and using a child in display of sexually
explicit conduct, ORS 163.670. On appeal, he argues that the
trial court erred in admitting grooming evidence without a
The grooming testimony and the context in which it was given
in this case did not differ meaningfully from the testimony
at issue in Henley. Therefore, as in that case, the
trial court erred when it admitted the evidence. Further, the
accuracy of the complainant's description of
defendant's conduct was a central issue at trial and the
evidence gave the jury [296 Or. 581] a scientifc lens through
which to view defendant's reported conduct. Given those
circumstances, and Henley's reiteration of the
principle that "scientifc evidence or evidence perceived
by lay jurors to be scientifc in nature possesses an
unusually high degree of persuasive power," 363 Or at
307, the error was harmful.
and remanded. [296 Or.App. 582]
HADLOCK, P. J.
case is on remand from the Supreme Court for reconsideration
in light of State v. Henley, 363 Or. 284, 422 P.3d
217 (2018). At trial, defendant was convicted of first-degree
sexual abuse, ORS 163.427, and using a child in display of
sexually explicit conduct, ORS 163.670. Defendant raised
three assignments of error on appeal, including an argument
that the trial court erred by admitting testimony relating to
"grooming" without requiring a scientific
foundation. We affirmed without opinion. The Supreme Court
remanded the case to us after it issued its opinion in
Henley, in which it held that-at least as offered in
the context of the trial in that case-evidence about sexual
grooming of children "was 'scientific' evidence
under OEC 702" that could not be admitted "without
first requiring the state to establish its scientific
validity." Henley, 363 Or at 304. That remand
implicates only defendant's first assignment of error, in
which he argues that the trial court erred in admitting
grooming evidence without a scientific foundation. We
therefore adhere, without further analysis, to our previous
rejection of defendant's second and third assignments of
error. With respect to the first assignment of error, we
reverse and remand for further proceedings in light of
Henley for the reasons set out below
review the trial court's determination that evidence is
not scientific for legal error. Brenner v. Nooth,
283 Or.App. 868, 877, 391 P.3d 947, rev den, 361 Or.
671 (2017). In determining whether any evidentiary error was
harmless, we "look at all pertinent evidence."
State v. Blaylock, 267 Or.App. 455, 456 n 1, 341
P.3d 758 (2014), rev den, 357 Or. 299 (2015). We
briefly summarize the pertinent evidence below, acknowledging
that the trial was lengthy and included much evidence about
the victim's mental state that is not discussed here.
[296 Or.App. 583]
time of trial, T was a developmentally disabled 13-year-old
boy who had also experienced significant mental-health
challenges, including periods of psychosis. T frequently
spent time at a game store that is set up so that groups of
people can play games there, including a card game called
Magic: The Gathering. Defendant is an adult who also spent
time at that game store and was an experienced Magic player
and collector of Magic cards. Defendant invited T to go home
with him one night after they had played Magic at the store.
T spent the night with defendant, partly at defendant's
home and partly at a restaurant where they played games. T
went home the next morning. Later that day, T told his mother
that defendant had sexually abused him. Police were called
and T spoke with them, with some neighbors, and with a CARES
interviewer, Petke, whose testimony we discuss below. The
details of T's descriptions of the alleged crimes are not
important to our analysis. Generally speaking, although T did
not give the same details to each person with whom he spoke,
T reported that defendant had induced him to engage in sexual
conduct and that defendant had given him Viagra. T also
suggested to some people that defendant had offered him Magic
cards to get him to allow the sexual contact.
testified at trial. He described having met defendant at the
game store, when defendant was "just sitting there
playing with his cards" and T asked him if he wanted to
play a game. T did not leave the store with defendant that
day. On a different day, T testified, he played Magic with
defendant, then went home with him. T's testimony
included descriptions of the sexual abuse that followed. On
cross-examination, defense counsel asked T why he went to
"Q. Did you want to go to [defendant's] house?
"A. He offered me cards and I wanted to get some cards
so I can upgrade my deck. And this is a *** 60 card deck and
he helped me very numerous times on my deck and he's very
nice. He was very nice at it, like making decks and stuff
and-and so, yeah."
Or.App. 584] At defendant's house, T showed defendant his
penis "for cards"; defendant also gave T Viagra and
touched his penis.
interviewed at CARES by Petke, whose testimony about grooming
is at issue in this case. T told Petke that he had gone to
the game shop and had seen defendant- whom T had previously
seen playing games at the shop- outside with another person.
Defendant, T, and that third person went inside and played
Magic. Defendant then invited T over to spend the night at
his house; T told Petke that defendant "was going to
(inaudible) for a Magic deck and he was going to like fix it
up and stuff." Defendant told T that they would
"figure out some price later or something." T told
Petke that, after the group arrived at the house, they played
Magic for a while and defendant gave him some particularly
valuable cards. T then described the abuse that occurred
during the course of the evening.
defendant's objection, Petke also testified about
grooming. She first informed the jury about her training and
"I have a master's degree in social work. I'm a
licensed clinical social worker and I have been since 1998.
I've worked at CARES for over 11 years and as a part of
my work there I attend ongoing conferences and trainings.
And, also, * * * our team, we meet regularly to go over cases
and review our work and ...