State v. Henley

• Decision Date: 26 October 2016
• Docket Number: A154810
• Citation: 281 Or.App. 825,386 P.3d 126
• Parties: State of Oregon, Plaintiff–respondent, v. Robert Lewis Henley, aka Sonny Henley, Defendant–appellant.
• Court: Oregon Court of Appeals

281 Or.App. 825

386 P.3d 126

State of Oregon, Plaintiff–respondent,

v.Robert Lewis Henley, aka Sonny Henley, Defendant–appellant.

A154810

Court of Appeals of Oregon.

Submitted May 28, 2015.

October 26, 2016

Peter Gartlan, Chief Defender, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for the appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Egan, Judge, and DeHoog, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427, and attempted sodomy in the first degree, ORS 163.405, for engaging in sexual behavior with the victim, his 11–year–old stepdaughter. On appeal, defendant assigns error to the trial court's admission of testimony that defendant's act of massaging the victim's chest, which occurred sometime before the sexual abuse, could constitute sexual "grooming." Defendant argues that the court erred because the witness who testified about the grooming was not a qualified expert and because the state failed to lay a scientific foundation for the admission of that evidence under State v. Brown , 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995). Defendant argues further that the testimony should have been excluded because it was not relevant under OEC 401 or unduly prejudicial under OEC 403. Defendant also assigns error to the court's imposition of consecutive sentences, which we reject without discussion. We write to discuss only defendant's challenges to the court's admission of the grooming evidence and conclude that the court did not err in admitting the evidence. We therefore affirm.

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Johnson , 342 Or. 596, 598, 157 P.3d 198 (2007). Defendant is the stepfather of the victim, M. He married M's mother when M was two years old. M lived with her mother and defendant in Idaho, and spent every other weekend with her father and stepmother, also in Idaho.

When M was five or six years old, defendant was with M in her bedroom, and he asked her to touch his penis. M did not comply with defendant's request. Instead, she told him that she needed to go to the bathroom and then went to find her mother. M's mother confronted defendant, who admitted to sleeping in M's bed but stated that he "didn't know" about M's allegation. M's mother told M that defendant would never go in her room again and that M could sleep in her mother's bed for the rest of the night.

"Once in a while," M asked defendant to give her massages. He would massage her shoulders, legs, and chest area. M did not like it when defendant would massage her chest because she "thought he was going too far into [her] other areas." When M told her mother about the massages, her mother said that defendant probably did not mean anything by it because he gave her massages like that all the time.

In June 2009, when M was 11 years old, she went on a camping trip with defendant, her mother, her siblings, and defendant's friend, all of whom stayed in a trailer. M slept on a mattress in the middle of the trailer, next to her mother and defendant, who slept in a fold-out bed on the side of the trailer. M fell asleep, but she awoke in the middle of the night when defendant laid down next to her on her mattress. Defendant did not do anything but lie there, and M eventually fell back to sleep.

In the early morning hours, M woke up and felt defendant touching her. He had pulled his pants down and pulled M's pants and underwear to her ankles, and he was placing his fingers in her vagina. M rolled over to try and stop defendant from touching her. Defendant then placed his hands on M's sides, attempted to spread her buttocks with his thumbs, and placed his penis on her buttocks and between her "butt cheeks." Defendant did not penetrate M's anus. He ejaculated and said, "Ahh."

Afterwards, M sat up, and defendant asked her if she was okay. M lied to defendant, telling him that she was not tired. When M's mother woke up, defendant laid back down on the bed. M's mother asked M if anything was wrong. M replied, "No." Her mother then asked her to lie down next to her. M's mother testified that defendant was asleep on M's bed at that time.

M told her mother about what had happened later that afternoon, and M's mother responded by telling M that she "didn't know what to say" and that she would arrange the mattresses so that defendant could not get into bed with M. M's mother confronted defendant about M's allegations, and he stated that he did not know what had happened because he had been asleep. Later that afternoon, M, defendant, and others went rock hunting.

After the camping trip ended, M went to live with her father and stepmother for a month, in accordance with a previous plan. She did not disclose the abuse right away, but eventually told her stepmother and father what had happened on the camping trip. M's father reported the abuse to the police, who initiated an investigation.

On June 25, 2009, M was interviewed by Courtney Palfreyman, a forensic interviewer with Children At Risk Evaluation Services (CARES) at St. Luke's Hospital in Boise, Idaho. Palfreyman has both a bachelor's degree and a master's degree in social work, has had special training in forensic interviewing, and has over 10 years of experience working in child protection.¹ During the interview, M told Palfreyman about the incident when she was five or six years old as well as what had happened on the camping trip. M also described defendant's massages to Palfreyman, stating that he "goes all over" and indicating her chest area. M told Palfreyman about one occasion when M asked defendant to give her a neck massage, but he instead massaged her upper chest. When M asked defendant to stop, he massaged the area above and below her buttocks.

At trial, Palfreyman testified generally about the concept of sexual grooming. She explained that grooming can be used by abusers to "build trust and weaken the defenses of a child." She explained that grooming can consist of behaviors such as spending time with a child, allowing a child to do things that the child's parents would not allow, giving a child money, tickling a child, or massaging a child. When Palfreyman was asked whether, during her interview with M, she identified "any behavior which could be considered grooming," Palfreyman replied, "Um, when she just talked about the massaging where she wanted it on her neck but he would go lower into her chest area."

During cross-examination, Palfreyman clarified that whether behavior can be considered grooming depends on the motives of the adult. For instance, typical parental behavior can constitute grooming if it is done with "evil intent." Palfreyman explained that, "as an outsider looking to build trust and weaken defenses; if that's [the] motive for getting into [the] child's circle of trust, then that could be potential grooming." Palfreyman acknowledged that she had not spoken to defendant and did not know what his motives were.

Defendant was convicted of first-degree sexual abuse and attempted first-degree sodomy. He now appeals, challenging the trial court's admission of Palfreyman's testimony about grooming.

In his first assignment of error, defendant contends that the trial court erred when it overruled defendant's objection to Palfreyman's qualifications as an expert on the topic of sexual grooming. In his second assignment of error, defendant claims that the trial court erred when it admitted the grooming testimony without a proper foundation. Specifically, he argues that the testimony constituted scientific evidence and that the state failed to demonstrate the scientific validity of the concept of sexual grooming. Defendant argues further that Palfreyman's testimony should have been excluded under OEC 401 because it was irrelevant or, alternatively, that it should have been excluded under OEC 403 because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

We begin with defendant's challenge to Palfreyman's qualifications to testify on the subject of grooming. At the outset, we reject the state's argument that defendant's claim is unpreserved for appellate review. "Preservation requirements serve a practical purpose, that is, to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument." State v. Ohotto , 261 Or.App. 70, 73, 323 P.3d 306 (2014) (internal quotation marks omitted).

Here, when the prosecutor asked Palfreyman if she had "any training regarding a concept called grooming," defense counsel immediately objected to the question, stating, "I would object to her being asked to testify as an expert on this issue." The prosecutor clarified that he was not trying to qualify Palfreyman as a psychologist or "expert in the field of grooming," and Palfreyman testified that she was not, in fact, a psychologist. Defense counsel again objected, this time arguing that the state had failed to lay a proper foundation for "this kind of testimony" and that Palfreyman was not an expert and did not have special training with regard to grooming.

Then, outside of the presence of the jury, the court asked the prosecutor to clarify whether he intended to qualify Palfreyman as an expert witness. The prosecutor explained:

"Essentially, Your Honor, what I plan on asking her is just laying a foundation that through her trainings and experiences and through doing 600 of these interviews, she's been taught to recognize certain behaviors which could be considered grooming."

The court admitted the testimony about grooming, with the understanding that Palfreyman "would not be...