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State v. Plueard

Court of Appeals of Oregon

March 20, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMESON COLE PLUEARD, Defendant-Appellant.

          Submitted on remand September 24, 2018.

          Washington County Circuit Court C142372CR, Suzanne Upton, Judge.

         On remand from the Oregon Supreme Court, State v. Plueard, 363 Or. 599, 427 P.3d 184 (2018).

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Reversed and remanded.

         Case 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 scientifc foundation.

         Held: 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.

         Reversed and remanded. [296 Or.App. 582]

          HADLOCK, P. J.

         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). 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[1]

         We 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]

         At the 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.

         T 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 defendant's home:

"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."[2]

         [296 Or.App. 584] At defendant's house, T showed defendant his penis "for cards"; defendant also gave T Viagra and touched his penis.

         T was 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.

         Over defendant's objection, Petke also testified about grooming. She first informed the jury about her training and experience:

"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 ...

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