State v. Smith

300 Or.App. 101

452 P.3d 492

STATE of Oregon, Plaintiff-Respondent,

v.Matthew Taylor SMITH, Defendant-Appellant.

A166334

Court of Appeals of Oregon.

Argued and submitted September 11, 2019.

October 16, 2019

Kali Montague, Deputy Public Defender, argued the cause for appellant. Also on the opening and reply briefs and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Matthew T. Smith filed a supplemental brief pro se.

Philip Thoennes, 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.

LAGESEN, P. J.

Defendant, who was 24, saw a girl at a restaurant and left her a note that invited a "hookup" and included his phone number. The girl’s mother gave the note to police. They then impersonated the girl in text messages to defendant. Through those text messages, the ostensible girl told defendant that she was 15 and arranged for him to meet her for oral sex. Defendant arrived at the agreed location and was arrested.

For that conduct, defendant was charged with and later convicted of luring a minor, ORS 167.057, first-degree online sexual corruption of a child, ORS 163.433, and attempted second-degree sexual abuse, ORS 163.425(a). On appeal, he argues that the trial court plainly erred by not sua sponte striking a detective’s testimony that defendant engaged in "grooming" during the text exchanges. In defendant’s view, that testimony was plainly scientific evidence that lacked the necessary foundation for its scientific validity in light of the Supreme Court’s decision in State v. Henley , 363 Or. 284, 301, 422 P.3d 217 (2018). As we explain, we reject that plain-error argument, because it is not beyond reasonable dispute under our post-Henley cases that the grooming testimony in this case was scientific evidence that required additional foundation. We therefore affirm.

At trial, the state offered the following testimony from a detective about how defendant’s actions constituted "grooming" behavior:

"It appeared to be that there was—there was obvious grooming, you know, that started going on here. You know when you look at the typical grooming of children, whether it’s online, in person or whatnot, we—we look at—it starts with, you know, some sort of acceptance, some sort of, you know, trust between the two. It was clear to me that this—whoever was on the other line, or other end of this phone knew that this was a—a 15 year old. And it also went to, you know, the note being left [at the restaurant]. So there’s already a—the set—the stage was set for a hookup. And then there was also some talk about keeping it a secret, you know, we don’t want mom to know, how do I know it’s not mom. So based on—on my training and experience as a detective, you know, is this going to be an investigation into preventing a crime or is this going to end up being a response to a—a rape that may have occurred."

Defendant did not object to that testimony but now argues that, in light of Henley , decided after the trial in this case, the detective’s testimony constituted scientific evidence for which the state did not lay an adequate foundation. See State v. Jury , 185 Or.App. 132, 136, 57 P.3d 970 (2002), rev . den . , 335 Or. 504, 72 P.3d 636 (2003) (explaining that error is determined based on the law that exists at the time of appeal rather than the time of the trial court’s ruling). In Henley , the trial court had allowed a forensic interviewer for Children at Risk Evaluation Services (CARES) to define grooming behavior and to describe the behaviors by the defendant that concerned her, but the state disclaimed a scientific grounding for that testimony. The Supreme Court held that, despite efforts to disclaim a scientific connection, the testimony about grooming, "in the context of her testimony overall, was ‘scientific’ evidence, because *** the evidence implied that it was grounded in science and the jury likely would have viewed the evidence that way." 363 Or. at 301, 422 P.3d 217. The court explained that, "[i]n light of her credentials and training, which the prosecution highlighted, [her] expert testimony implied that the training she had received on grooming, and the information about grooming from that training that she conveyed to the jury, was accepted and grounded in behavioral science." Id. at 303, 422 P.3d 217. Moreover, "even though the prosecution did not highlight the scientific nature of [her] testimony or focus its examination on studies, research, and literature in the field that supported her testimony, *** lay jurors likely would have accorded the testimony the persuasive value of scientific principle" based on the circumstances of her testimony. Id.

We have since applied Henley in two cases that bear on whether the detective’s testimony in this case was plainly scientific evidence that required a foundation showing its scientific validity:

State v. Plueard , 296 Or. App. 580, 439 P.3d 556, adh’d to as modified on recons. , 297 Or. App. 592, 443 P.3d 1195 (2019), and State v. Evensen , 298 Or App 294, 315, 447 P.3d 23 (2019).

In Plueard , the trial court overruled a defendant’s objection to testimony by a social worker, Petke, about her training and experience and familiarity with the "phenomenon" of grooming. Petke further testified that " ‘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.’ " 296 Or. App. at 584, 439 P.3d 556. We reversed, holding that the reasoning in Henley was controlling. We reasoned that that was the case in significant part because Petke’s phrasing ("phenomenon") could evoke a scientific air, her education and experience related to CARES investigations—which immediately preceded the testimony about the "phenomenon"—would have confirmed its scientific nature, and she offered a definition of grooming that was not common knowledge. Id. at 587-88, 439 P.3d 556.

After Plueard , we decided Evens en . It involved testimony by a detective about her own experiences investigating reports of child abuse and that younger children tend to be more susceptible to "suggestibility" about what happened than older children, that very few cases she had investigated involved a suspect who was a stranger to the child, and that suspects typically were people who were connected to the family and had a good relationship with them. Evensen , 298 Or. App. at 311-12, 447 P.3d 23. We held that the detective’s testimony was not scientific evidence that required a foundation showing its scientific validity, because the detective did not suggest the existence of some "phenomenon" independent of the detective’s own experience; the detective did not purport to...