State v. Etzel

• Decision Date: 21 April 2021
• Docket Number: A163473
• Citation: 488 P.3d 783,310 Or.App. 761
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Daniel Carlyon ETZEL, Defendant-Appellant.

310 Or.App. 761

488 P.3d 783

STATE of Oregon, Plaintiff-Respondent,

v.Daniel Carlyon ETZEL, Defendant-Appellant.

A163473

Court of Appeals of Oregon.

Argued and submitted December 6, 2018

April 21, 2021

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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 DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.^*

AOYAGI, J.

In 2014, defendant's girlfriend's 16-year-old daughter, B, told a police officer that defendant had sexually abused her over a 10-year period, beginning in 2004 when she and her mother moved in with him. The specifics of the alleged abuse are not relevant to the issues on appeal. Defendant was subsequently convicted of two counts of first-degree sexual abuse, ORS 163.427 ; two counts of second-degree rape, ORS 163.365 ; and two counts of second-degree sodomy, ORS 163.395.

On appeal, defendant challenges several of the trial court's evidentiary rulings: (1) the exclusion of testimony by defendant's ex-girlfriend and his ex-wife regarding their opinions of his "sexual propriety around children" as a character trait under OEC 404(2)(a) ; (2) the overruling of defendant's objection to a police detective's qualifications to testify about grooming of children for sexual abuse; and (3) the admission of grooming evidence over defendant's objections based on OEC 401, OEC 702, and OEC 403.¹ We hold that the trial court did not err as to the first two rulings but erred in part as to the third group of rulings. Under State v. Henley , 363 Or. 284, 304, 422 P.3d 217 (2018), the grooming evidence was scientific in nature and required a scientific foundation under OEC 702. We therefore reverse and remand for further proceedings.

I. LIMITATION ON SEXUAL-PROPRIETY EVIDENCE

At trial, defendant called his ex-girlfriend, Messina, to testify for the defense. The state objected when defendant began questioning Messina about defendant's interactions with her two young children. The state argued to the court that, under State v. Enakiev , 175 Or. App. 589, 29 P.3d 1160 (2001), defendant could ask Messina about defendant's sexual propriety in general, as character evidence, but could not ask her about his behavior around children specifically. Defendant disagreed, arguing that Messina could opine that defendant was sexually appropriate around children, as character evidence, and that specific instances were appropriate to lay a foundation.²

The trial court sustained the state's objection, ruling that Messina could testify to her opinion of defendant's sexual propriety in general but not to her opinion of defendant's sexual propriety around children specifically or to specific instances of defendant being sexually appropriate around children. Messina then testified consistently with the limitations placed by the court, including testifying to her opinion that defendant's sexual propriety is "very good."

The same issue arose again when defendant called his ex-wife, Etzel, with whom he has two children, to testify for the defense. Defendant advised the court that Etzel would testify that his sexual propriety in general is good and that he behaves appropriately around children. The state reiterated its position that it is improper to ask a witness about a defendant's sexual propriety around children specifically, while defendant again argued that sexual propriety around children is a pertinent character trait in child sex abuse cases. Consistent with its prior ruling, the court ruled that Etzel could testify to her opinion of defendant's sexual propriety generally but not his sexual propriety around children specifically. The court also noted the minimal probative value of the excluded evidence, given that sexual abuse of children tends to occur behind closed doors. Etzel proceeded to testify consistently with the limitations placed by the court, including testifying to her opinion that defendant's sexual propriety is "good."

On appeal, in his first assignment of error, defendant argues that the trial court erred in excluding Messina's and Etzel's opinion testimony about his sexual propriety around children specifically. Defendant argues that such testimony was admissible character evidence under OEC 404(2) and Enakiev . The state maintains that it was properly excluded under those authorities.

"Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion," with certain exceptions, one of which is "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same." OEC 404(2)(a). "Character" generally refers to "a person's disposition or propensity towards certain behavior, such as honesty, or a person's tendency to act in a certain way in all varying situations of life." State v. Marshall , 312 Or. 367, 371-72, 823 P.2d 961 (1991) (internal quotation marks and ellipsis omitted). Thus, character evidence is evidence of a particular trait—such as truthfulness, honesty, temperance, carefulness, or peacefulness, among others—as manifested in all varying situations of life; for example, a person's character for carefulness refers to his or her propensity to act with care in all varying situations of life. Id. at 372, 823 P.2d 961. The admissibility of evidence under OEC 404(2)(a) is a question of law. State v. Basua , 280 Or. App. 339, 344, 380 P.3d 1196 (2016).

In Enakiev , we held that sexual propriety is a "trait of character" for purposes of OEC 404(2)(a). 175 Or. App. at 595, 29 P.3d 1160. In that case, the defendant was charged with harassment by touching the sexual or intimate parts of another. Id. at 592, 29 P.3d 1160. He sought to have six witnesses (his wife, his pastor, his pastor's wife, the associate pastor, a friend, and an acquaintance) testify to his sexual propriety as character evidence under OEC 404(2)(a), but the trial court excluded the testimony as not pertaining to a "trait of character." Id. We reversed, concluding that "evidence of a person's character with respect to sexual propriety evinces that person's propensity to act in a sexually proper manner in all the varying situations of life" and, as such, "is materially indistinguishable" from those character traits enumerated in Marshall and therefore is an admissible character trait. Id. at 595, 29 P.3d 1160 (internal quotation marks omitted). To be admitted, sexual-propriety character evidence must be relevant—i.e. , it must have a tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence—and it must be in proper form—i.e. , it must be in the form of reputation or opinion testimony, rather than referencing specific instances of sexually appropriate conduct. Id. at 595-96, 29 P.3d 1160 ; see also Marshall , 312 Or. at 373, 823 P.2d 961. In Enakiev , the evidence was relevant, because a person "of excellent sexual propriety" would be unlikely to touch the sexual or intimate parts of another, and it was in the proper form, because it did not refer to specific instances of conduct. 175 Or. App. at 596, 29 P.3d 1160 (internal quotation marks omitted). The trial court therefore erred in excluding it. Id . at 596-97, 29 P.3d 1160.

Similarly, sexual-propriety character evidence was wrongly excluded in Basua , where the defendant was charged with second-degree sexual abuse after he allegedly sexually assaulted an acquaintance while they were both highly intoxicated. 280 Or. App. at 340-41, 380 P.3d 1196. As part of his defense, the defendant intended to call a female friend to testify that that she had known him for two years, that she had spent time with him while he was intoxicated, and that her opinion was that he was sexually appropriate around women. Id. at 342, 380 P.3d 1196. The trial court excluded the evidence, and we reversed. Id. at 342, 344, 380 P.3d 1196. We explained that the evidence was relevant, in that it tended to show that the defendant would not have acted in a sexually inappropriate manner against the complainant, and was in the proper form, in that it consisted only of the witness's opinion and did not refer to specific instances of sexually appropriate conduct. Id. at 344-45, 380 P.3d 1196.

In this case, Messina and Etzel testified to their opinions of defendant's sexual propriety in general, but they were not permitted to testify to their opinions of defendant's sexual propriety around children specifically. Defendant contends that that was error under OEC 404(2)(a). The state maintains that it was not. We agree with the state. By its nature, character evidence pertains to a "person's tendency to act in a certain way in all varying situations of life ." Marshall , 312 Or. at 372, 823 P.2d 961 (internal quotation marks omitted; emphasis added). Thus, a person with the character trait of "sexual propriety" is a person who tends to act in a sexually appropriate manner in all the varying situations of life—which would include those involving children. In stating their opinions of defendant's good character for sexual propriety, Messina and Etzel were necessarily opining that defendant tends to be sexually appropriate in all situations. To illustrate, if someone has a tendency to sexually abuse children, then, regardless of how the person tends to act with adults, it would be impossible to say that the person is "sexually appropriate" as a character trait . A character trait is a tendency present in all the varying situations of life.

Under OEC 404(2) and existing precedent, defendant was entitled to put on character evidence of his general tendency toward sexual propriety—and the trial court permitted him to do so—but he...