State v. Bolton

310 Or.App. 255

484 P.3d 347

STATE of Oregon, Plaintiff-Respondent,

v.Larry Marshall BOLTON, Defendant-Appellant.

A163568 (Control)

A163569

Court of Appeals of Oregon.

Argued and submitted September 11, 2019

March 31, 2021

Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. Also on the opening brief and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Larry Marshall Bolton filed a supplemental brief pro se.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

DeVORE, J.,

In this criminal case, both defendant and the state assign error after the trial court entered a judgment that convicted defendant of 17 offenses involving his wife, J.¹ We address defendant's leading assignment of error and the state's related cross-assignment of error. Defendant argues that the trial court erred when, without a foundation for scientific evidence, the court admitted the expert testimony of the state's witness about the counterintuitive behaviors of victims. In a cross-assignment, the state contends that the trial court erred in determining that the state had not provided an adequate foundation for scientific evidence. The state argues, offering scholarly literature on appeal, that the foundation was sufficient for the nature of the testimony under the standards of State v. Brown , 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995).

We conclude that the expert testimony required a scientific foundation; that the trial court erred in admitting the testimony as nonscientific expert testimony; that the trial court did not err in finding the foundation that was laid was insufficient for scientific evidence; and that the insufficiency is not remedied by scholarly articles offered on appeal. We reverse and remand.

Before returning to those issues, we reject several other assignments of error at the outset. Defendant argues that the trial court plainly erred in admitting Exhibit 2, a diagram, called a "power and control wheel," that depicts behavior in which domestic abusers engage. Defendant argues that the exhibit required a scientific foundation. He failed to preserve the issue by objecting to its admission. See ORAP 5.45(1) (requiring preservation of error).

Defendant also argues that the trial court plainly erred under the Sixth and Fourteenth Amendments to the United States Constitution by instructing the jury that it could return a verdict of guilty without a unanimous agreement of the jurors. Defendant did not object to the instruction, and there was no jury poll. Because defendant did not preserve this issue, we decline to exercise discretion to consider it. See State v. Dilallo , 367 Or. 340, 478 P.3d 509 (2020) (declining to consider unpreserved error in this context).

In a pro se supplemental brief, defendant assigns error to the trial court's ruling excluding evidence of various prior accusations that the victim made against others. The trial court determined that the probative value of that extrinsic evidence was substantially outweighed by the risk of prejudice from confusion of issues under OEC 403. We conclude that the trial court did not abuse its discretion in making its determination. See State v. Baughman , 361 Or. 386, 406, 393 P.3d 1132 (2017) (reciting standard). We reject the assignment of error without further discussion.

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, 399 P.3d 1002 (2017). To provide context for the issues addressed, we summarize the facts.

In 2011, defendant was 51 years old and J was 24 years old. J moved into defendant's home when recovering from drug addiction and escaping a prior abusive relationship. She was underweight, tired, and scared. Soon after she moved in, while both were in a hot tub, he pulled her pants off. She got out. At a party, he held her over a couch and painfully spanked her. Someone called the police. She left with them and spent the night in a shelter. She was not attracted to defendant. About 10 days after her arrival, defendant engaged in forcible intercourse over her objection. When drunk, he spanked her, sometimes several times a week. He assaulted her a number of times, causing a bloody nose or holding her off the ground by the throat, saying he could kill her. On one occasion and over her objection, he held J down while a woman performed oral sex on her. At one point, J's aunt took her away, but J returned to defendant's home.

Defendant told J they should marry, and, in December 2011, they did, although without her friends or family in attendance. In March 2012, police spoke with J, while investigating another matter. She told them of defendant's abuse, but she did not want to press charges. She left with the police for a shelter. Defendant called repeatedly and threatened her if she did not return. She did.

In the summer of 2013, defendant grew angry over a torn shirt, threw J to the floor, pulled her hair, and slammed her head into the ground repeatedly. That year, she became pregnant.

After an argument, J prepared to leave to stay with her sister, and defendant attacked her. She left, but, after four or five days, J returned to defendant's home.

Sometime after the baby was born, J decided to leave. She secretly saved money and recorded defendant's abusive language. In February 2015, J and her daughter left for a shelter and obtained a restraining order.

Defendant was charged with 21 offenses for conduct involving J. Defendant's theory of the case was that J had fabricated her account of his actions. He intended to argue that her behavior, including failing to contact police and remaining with him, was evidence that her testimony was untruthful.

Anticipating that defense, the state filed a pretrial motion to admit expert testimony regarding, among other things, counterintuitive victim behavior. The motion explained that counterintuitive victim behavior includes

"denial of abuse; recanting, minimizing, or changing the statement about what happened; not leaving the abusive relationship; returning to the abusive relationship after leaving; resuming contact with the perpetrator including sexual intimacy; not disclosing the abuse immediately; covering for the perpetrator; and not cooperating with the criminal justice system."

In its motion, the state wrote:

"The State acknowledges that inasmuch as expert testimony regarding Domestic Violence dynamics and counterintuitive victim behavior is offered as psychological or scientific phenomenon (as was the case in Marrington and Perry ) it would likely have to qualify under the standards set forth in Brown / O'Key ."

However, the state insisted that, where the expert testimony is "narrow in scope," the testimony "should not be subject to Brown / O'Key scrutiny."

In a pretrial hearing, the state offered the expert testimony of Downing, the executive director of the Center for Hope and Safety in Marion County, which is a nonprofit agency that serves the victims of domestic violence, sexual assaults, stalking, and human trafficking. Downing testified that she has a bachelor's degree with double majors in psychology and women's studies. She testified that she was certified by the state as a victim services specialist and has had "thousands of hours of training," including in "trauma informed services for victims." At the hearing, she offered testimony about the myths of domestic violence: that the violence is provoked, that domestic violence is confined to low income people, that victims "just leave [the] abuse," that a victim would not return to an abuser, that a person would report abuse "right away" if abused, and that a victim is safer after reporting abuse. In effect, she offered to testify that the behavior that defendant would attribute to J as inconsistent with having been abused is common among domestic violence victims and not necessarily reason to distrust the victim's testimony.

At the hearing, defendant objected to the admission of Downing's testimony, arguing, among other things, that her testimony was based in behavioral science, that it should require a scientific foundation, and that her education was insufficient to be an expert at all. Defendant contended that the subject was not complex and domestic violence was common, such that the testimony would not be helpful because it is not beyond the experience of the jurors. The state responded that the testimony was "not scientific evidence" and was instead "expert testimony based on decades of experience working in domestic violence."

The trial court noted that Downing lacked an advanced degree and that her testimony would not be "admissible as scientific evidence." That determination becomes the basis of the state's cross-assignment of error. The court determined, however, that Downing qualified as a non-scientific expert based on her experience and that her specialized knowledge would be helpful to the jury within the meaning of OEC 702.

At trial, Downing testified that she has worked directly with thousands of victims of domestic violence for over 25 years. As before, she described her college studies:

"[PROSECUTOR:] Can you tell us what your educational background is[?]

"[DOWNING:] So I have a bachelor's degree from Willamette University. I double majored in psychology and women's studies. I've also taken graduate level courses in different subjects and have had thousands of hours in training on—specific to domestic violence, sexual assault, stalking and human trafficking.

"* * * * *

"[PROSECUTOR:] And did those trainings cover specific issues, for example, with regard to dynamics of domestic violence?

"[DOWNING:] It did."

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