Washington County Circuit Court C142372CR; Suzanne Upton,
appellant's petition for reconsideration fled April 3,
2019, and respondent's response to petition for
reconsideration fled April 10, 2019.Opinion fled March 20,
2019. 296 Or.App. 580 ___, P.3d ___.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Andrew D. Robinson, Deputy Public Defender, Offce of Public
Defense Services, for petition.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jordan R. Silk, Assistant Attorney General, for
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant seeks reconsideration of the Court of
Appeals opinion in State v. Plueard, 292 Or.App.
580, P.3d (2019), in which the court reversed and remanded
based on a determination that the trial court erred when it
admitted certain evidence about "grooming" and that
the error was not harmless. Defendant asks the court to
delete from the opinion footnote one, in which the court
suggested that if the trial court determined on remand
"that the evidence was, after all, admissible," a
new trial would not be necessary. Id. at 582 n 1.
Defendant contends that the footnote was overly directive.
Held: The court allowed the petition for
reconsideration and deleted footnote one from the opinion.
The footnote was too limiting because it foreclosed the
possibility that the trial court would determine that a new
trial still is necessary, even if it ultimately determines on
remand that the evidence at issue was admissible. It was also
surplus age, as the court's use of the "[r]eversed
and remanded" tag line was [297 Or.App. 593] sufficient
to signal to the trial court that it would have authority to
determine the necessary or appropriate proceedings on remand.
allowed; former opinion modified and adhered to as modified.
Or.App. 594] HADLOCK, P. J.
seeks reconsideration of our opinion in State v.
Plueard, 296 Or.App. 580, P.3d(2019), in which we
reversed and remanded based on our determination that the
trial court erred when it admitted certain evidence about
"grooming" and that the error was not harmless. In
his petition for reconsideration, defendant asks us to delete
footnote 1 from the opinion. That footnote states:
"When the Supreme Court remanded for further proceedings
in [State v. Henley, 363 Or. 284, 422 P.3d 217
(2018)], it suggested that the parties might-on remand-
develop 'the evidentiary record concerning
admissibility' of the proffered grooming evidence and
that the trial court could then determine, in the first
instance, whether the state had established the scientific
validity of that evidence. It appears that, under
Henley, the trial court has that option in this case
on remand. If it determines that the evidence was, after all,
admissible, then no new trial will be necessary."
Plueard, 296 Or.App. at 582 n 1. Defendant
challenges that footnote on several grounds. With the
following exception, we reject those arguments without
grant reconsideration, however, to address one argument that
defendant makes in his petition. Reduced to its essence, that
argument is that we were overly directive in the last
sentence of the quoted footnote. Defendant relies on
State v. Baughman, 361 Or. 386, 411, 393 P.3d 1132
(2017), in which the Supreme Court reversed and remanded
because the trial court had erred in determining the purpose
for which certain other-acts evidence could be admitted,
undermining the soundness of its balancing determining under
OEC 403. The Supreme Court explained that, on remand, the
state would "be entitled to make new arguments about the
purposes, if any, for which [that] evidence is
relevant," and the trial court could then conduct a new
OEC 403 analysis. The court further explained that a new
trial might be necessary, whether or not the trial
court again ruled the evidence admissible, "to allow the
parties to make new arguments, and the court to give new
instructions, to the jury," given the possibility that
the evidence would be admitted for [297 Or.App. 595] a
different reason on remand than it was originally. 361 Or at
411. Because the trial court would be "in the best
position to assess the need for a new trial after it * * *
determined the purposes for which the challenged evidence
[was] relevant," the Supreme Court "[left] it to
the trial court to determine the nature of the proceedings
that are necessary or appropriate on remand."
contends that, under Baughman, we erred by stating
that "no new trial will be necessary" in this case
if the trial court determines, on remand, that the grooming
evidence was admissible. In response, the state asserts that
it is much less likely here that a new trial will still be
needed if, on remand, the state is able to lay an adequate
foundation for the challenged grooming evidence because,
unlike in Baughman, the purpose for which that
evidence was offered will not have changed. The state
acknowledges, however, "that the question whether a new
trial is necessary will ultimately be one for the trial court
to resolve after it reconsiders the foundational
admissibility of the challenged evidence on remand."
(Emphasis in state's brief.)
state may be correct that it is less likely here than in
Baughman that the trial court will determine that a
new trial still is necessary, even if it ultimately
determines on remand that the evidence at issue (here, the
grooming evidence) was admissible. Nonetheless, we agree with
defendant that we should not have foreclosed that