State v. Plueard

296 Or.App. 580

439 P.3d 556

STATE of Oregon, Plaintiff-Respondent,

v.Jameson Cole PLUEARD, Defendant-Appellant.

A162112

Court of Appeals of Oregon.

Submitted on remand September 24, 2018.

March 20, 2019

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

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

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

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, 422 P.3d 217. 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, 399 P.3d 1002 (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, 353 P.3d 594 (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.

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

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 kind of provide feedback and ongoing training to each other as well."

Petke also informed the jury that she had conducted over 1,200 interviews with children. The prosecutor specifically questioned Petke about grooming:

"Q. In your training and experience with conducting these interviews * * * for kids who have been referred for suspicions of child abuse, child sexual abuse, have you become familiar with a phenomenon called grooming?

"A. Yes.

"Q. Can you describe what that terms mean [sic ] to you in your work?

"A. Yes. So grooming is a gradual process of building trust with a child in—with the purpose of establishing such a level of trust to allow for an opportunity for sexual abuse."

On cross-examination, Petke acknowledged that grooming usually occurs "over a time," when a person tries to gain the trust of a child. Petke responded affirmatively when asked whether her "explanation of grooming in this case," based on the information she had, "would be focused in on that [two-day] time period" during which T spent the night at defendant’s home. She acknowledged that grooming "often * * * takes place over a longer period of time."

Because the court had overruled his objection to Petke’s grooming testimony, defendant called his own defense expert, Johnson, to testify on that topic. Johnson described grooming in terms generally similar to those that Petke had used. He also testified that grooming typically involves conduct over a period of time that is "not isolated to a 24-hour period" and is sometimes "much longer than that."

Defendant testified on his own behalf at trial. He acknowledged that he had played Magic with T at the game store and had invited T to his house, asserting that T had said that he was scared to go home. Defendant denied giving Viagra to T or sexually abusing him. While cross-examining defendant, the prosecutor referred to Petke’s testimony about grooming, tying it to the specific conduct that T had described:

"Q. If someone were to offer Magic cards to a 13-year-old slow, odd, magic card-playing boy in return for him to take a Viagra, would you agree that that would—could be construed as sexual grooming of that child?

"A. Yes.

"Q. Would you agree that offering that same child Magic cards in order to get—induce that child to show you their penis could be construed as sexual grooming?

"A. Yes.

"Q. Preparing the child for sexual contact or—other forms of sexual abuse?

"A. Yes."

Both lawyers referred to the grooming testimony in their closing arguments. Defense counsel suggested that the jury should not consider the interactions between defendant and T to be grooming, both because those interactions made sense in the context of what was going on at the game store and because defendant took actions that, according to his lawyer, were inconsistent with grooming (such as taking T to a public place like a restaurant). In rebuttal, the prosecutor reminded the jury of "all the testimony about grooming," suggesting that it helped explain T’s statement that defendant "was trying to touch my penis." The jury found defendant guilty of two of the three counts charged.

The question before us on remand is whether Petke’s testimony about grooming was "scientific evidence" for purposes of OEC 702 and, therefore, the trial court erred when it admitted the testimony without requiring the state to lay an adequate foundation establishing its scientific validity. OEC 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." Scientific evidence is "[t]ypically, but not necessarily, * * * presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy." State v. Brown , 297 Or. 404, 407-08, 687 P.2d 751 (1984). Evidence that...