State v. Dulfu, 386 P.3d 85

Background

Defendant was convicted of 15 counts of Encouraging Child Sexual Abuse in the First Degree (ORS 163.684) and 15 counts of Encouraging Child Sexual Abuse in the Second Degree (ORS 163.686) for sexually explicit child images found on his computer and in a shared peer‑to‑peer folder.
Police discovered the shared files using software that located publicly shared files on the network; defendant’s challenge to that surveillance was rejected as foreclosed by State v. Combest.
Defendant testified that he possessed the images for nonsexual reasons (related to his own childhood abuse) and offered Dr. Frank Colistro as an expert to testify that some people possess child pornography for nonsexual motives.
The trial court excluded Colistro’s testimony as inadmissible “scientific evidence” because defendant failed to lay the Brown/O’Key foundational showing of scientific validity; the jury convicted on all counts.
At sentencing the court reconstituted defendant’s criminal‑history score across multiple counts (raising his grid from I to D, B, then A for later counts) based on separate acquisition dates for different images, producing a heavier aggregate sentence; defendant appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of expert testimony that some possess child pornography for nonsexual reasons	State: Expert testimony is scientific and requires Brown/O’Key foundation; defendant did not offer sufficient scientific validation	Defendant: Colistro’s opinion is based on clinical observation and qualifications; Stafford allows admission without Brown/O’Key foundation	Court held testimony was scientific and defendant failed to establish scientific validity under Brown/O’Key; exclusion proper
Whether challenged testimony is “scientific evidence”	State: Given expert’s credentials and reliance on literature/vocabulary, jurors would view it as scientific	Defendant: Testimony is observational clinical opinion (non‑scientific) and Stafford controls	Court held it would be perceived as scientific by jurors and thus subject to Brown/O’Key gatekeeping
Sufficiency of foundation under Brown/O’Key for Colistro’s technique (differential diagnosis to infer nonsexual motive)	State: No studies, peer review, error rates, or community acceptance for using such evaluations to infer nonsexual motive	Defendant: Colistro’s qualifications and clinical practice suffice to establish validity	Court held qualifications alone insufficient; other Brown/O’Key factors weigh against validity; exclusion affirmed
Reconstitution of criminal history (multiple counts from multiple acquisition dates)	State: Separate download dates constitute separate criminal episodes; convictions may reconstitute history and elevate grid	Defendant: All contraband seized at once, so possession is a single episode (relying on Boyd)	Court held separate acquisition dates show distinct episodes; Orchard and statutory test govern; reconstitution and sentencing calculation were proper

Key Cases Cited

State v. Combest, 271 Or. App. 38 (Or. Ct. App. 2015) (police use of peer‑to‑peer software to locate shared child pornography files not a search under Oregon Constitution)
State v. Brown, 297 Or. 404 (Or. 1984) (framework for admitting scientific evidence; gatekeeper role)
State v. O’Key, 321 Or. 285 (Or. 1995) (factors for evaluating scientific validity of expert testimony)
State v. Perry, 347 Or. 110 (Or. 2009) (testimony grounded in studies and scientific literature treated as scientific evidence)
State v. Marrington, 335 Or. 555 (Or. 2003) (whether expert assertions have increased potential to influence the trier of fact)
State v. Sanchez‑Alfonso, 352 Or. 790 (Or. 2012) (burden on proponent to show scientific validity to satisfy OEC 702)
State v. Cuevas, 358 Or. 147 (Or. 2016) (sentencing guidelines and how prior convictions feed criminal‑history calculations)
Orchard v. Mills, 247 Or. App. 355 (Or. Ct. App. 2011) (acquisition on separate dates supports treating offenses as separate criminal episodes)
State v. Boyd, 271 Or. 558 (Or. 1974) (discussion of possession as a unitary act; court explains limits and is not determinative here)