439 P.3d 556
Or. Ct. App.2019Background
- Defendant, an adult Magic: The Gathering player, invited T, a developmentally disabled 13-year-old, to his home after meeting at a game store; the next day T reported sexual abuse and alleged defendant gave him Viagra and offered Magic cards to induce sexual acts.
- At trial defendant was convicted of first-degree sexual abuse and using a child in display of sexually explicit conduct; defendant appealed raising three errors, including admission of "grooming" testimony without a scientific foundation.
- A CARES interviewer, Petke, testified about "grooming," defining it as a gradual trust-building process to enable sexual abuse; she described her MSW, 11+ years at CARES, and 1,200+ child interviews.
- Defense elicited testimony from its expert that grooming typically occurs over a longer period and called defendant who denied the abuse but agreed hypothetically that some acts could be "construed as grooming." Prosecutor referenced grooming in cross and rebuttal.
- The Supreme Court remanded for reconsideration in light of State v. Henley, which held that certain grooming testimony is "scientific evidence" under OEC 702 and requires a foundational showing of scientific validity; the court here applied Henley and found Petke's grooming testimony was scientific and admitted in error.
- The majority reversed and remanded for further proceedings (trial court may assess admissibility and scientific foundation on remand); dissent would have held the error harmless on the record.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petke's grooming testimony was "scientific evidence" under OEC 702 requiring a foundational showing of scientific validity | Testimony was general, brief, and not tied to specific conduct; any error harmless because other evidence supported verdict | Admission was improper without foundation because the testimony implied a scientific grounding and could influence the jury | Held: Petke's grooming testimony was "scientific evidence" under OEC 702 and admitting it without a scientific-validity foundation was error (per Henley) |
| Whether the erroneous admission of grooming testimony was harmless | Error was harmless because testimony was brief and did not apply grooming to specific acts; other evidence permitted jury inference of nefarious motive | Error prejudicial because grooming bolstered complainant and gave jury a scientific lens to interpret interactions | Held: Error was not harmless; reversal and remand for further proceedings to allow trial court to develop admissibility record |
Key Cases Cited
- State v. Henley, 363 Or. 284 (holds expert grooming testimony impliedly grounded in science is "scientific evidence" under OEC 702 and requires foundational proof of scientific validity)
- State v. Brown, 297 Or. 404 (defines typical characteristics of scientific expert evidence)
- State v. Marrington, 335 Or. 555 (discusses the difficulty of precisely defining "scientific" evidence)
- State v. Blaylock, 267 Or. App. 455 (instructs that harmless-error review considers all pertinent evidence)
- Brenner v. Nooth, 283 Or. App. 868 (trial court's determination that evidence is not scientific reviewed for legal error)