State v. Henley
| Decision Date | 21 April 2021 |
| Docket Number | A170383 |
| Citation | 310 Or.App. 813,486 P.3d 853 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Robert Lewis HENLEY, aka Sonny Henley, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Mary M. Reese, 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 brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
This case is before us for the second time. Defendant was convicted of first-degree sexual abuse and attempted first-degree sodomy. The victim was his 11-year-old stepdaughter. On review of the first judgment of conviction, the Supreme Court held that a forensic interviewer's testimony regarding "grooming" of children for sexual abuse constituted scientific evidence under OEC 702, such that the state was required to establish a scientific foundation for it. State v. Henley , 363 Or. 284, 304, 422 P.3d 217 (2018). Because the trial court had viewed the testimony as nonscientific, it failed to "determine whether sexual grooming evidence possesses the requisite level of scientific validity and reliability for admissibility under OEC 702." Id . at 307, 422 P.3d 217. The Supreme Court declined to decide that issue in the first instance, as the trial court was "best suited for the development of the evidentiary record concerning admissibility." Id . at 306-07, 422 P.3d 217. The matter was therefore remanded to the trial court for further proceedings. Id. at 310, 422 P.3d 217.
On remand, the trial court held a Brown / O'Key hearing. See State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995) ; State v. Brown , 297 Or. 404, 687 P.2d 751 (1984). Based on the evidence admitted at that hearing, the trial court concluded that the concept of grooming to which the witness testified had "a sufficient level of scientific validity to qualify for admission at trial," such that it was properly admissible under OEC 702. Accordingly, the court reentered defendant's convictions for first-degree sexual abuse and attempted first-degree sodomy. Defendant appeals, again challenging the admission of the grooming testimony. For the following reasons, we affirm.
We must first address the scope of this second appeal. In his first appeal to us, defendant challenged the admission of the grooming testimony on multiple grounds. He argued that the trial court erred in admitting it because the witness was not qualified to testify about grooming, because the state had failed to lay a scientific foundation under OEC 702, because the testimony was not relevant under OEC 401, and because the testimony was unduly prejudicial under OEC 403. State v. Henley , 281 Or. App. 825, 826, 386 P.3d 126 (2016), rev'd , 363 Or. 284, 422 P.3d 217 (2018) ; see also State v. Southard , 347 Or. 127, 133, 218 P.3d 104 (2009) (). We rejected each of those challenges, either on the merits or as unpreserved. Henley , 281 Or. App. at 831, 834, 386 P.3d 126.
Defendant sought Supreme Court review only on the OEC 702 issue. The question presented to the Supreme Court was whether the admitted testimony about grooming "constitute[d] scientific evidence and so require[d] a foundational showing under OEC 702."1 That was the only issue that the court considered. See Henley , 363 Or. at 286, 422 P.3d 217 (). The court ultimately agreed with defendant that the testimony was scientific in nature and therefore required a scientific foundation under OEC 702. Id. at 304, 422 P.3d 217. It reversed and remanded for the trial court to determine, after appropriate development of the record, whether the testimony possessed the requisite level of scientific validity for admissibility under OEC 702. Id. at 307, 310, 422 P.3d 217.
Consistent with the foregoing sequence of events, on remand, the trial court held a Brown / O'Key hearing to determine whether the grooming testimony admitted over defendant's objection was scientifically valid. Relying on evidence offered by the state, the trial court ruled that it was, concluding that "the concept of grooming possesses a sufficient minimum level of scientific validity to be admissible as scientific evidence under OEC 702." The court then reentered defendant's convictions.
On appeal from the resulting judgment, defendant contends that the trial court erred in its OEC 702 ruling, an issue that we address shortly. However, that is not all. Defendant also seeks to revisit other challenges to the admission of the grooming testimony that we considered and rejected in his first appeal. Specifically, he argues that the testimony should have been excluded as lacking relevance under OEC 401 and as substantially more unfairly prejudicial than probative under OEC 403. We reject those arguments. In the first appeal, we already rejected defendant's claims of error regarding OEC 401 and OEC 403 as unpreserved, and the Supreme Court did not grant review on those issues, address them in its opinion, or include them in the scope of the remand. Had the trial court ruled correctly on defendant's trial objection in the first instance (back in 2009), its ruling would have been limited to OEC 702, because that was the objection made. If defendant believed that we erred in the first appeal in ruling that his claims of error under OEC 401 or OEC 403 were unpreserved, or if defendant believed that something about the particular posture of this case merited allowing him to raise new OEC 401 or OEC 403 issues on remand despite not having raised them in the original trial, then he should have raised those matters in the Supreme Court. He did not. Under the circumstances, we cannot say that the trial court erred in limiting the remand proceedings to OEC 702.2 We similarly limit our consideration to the OEC 702 ruling.
Having determined the scope of this appeal, we turn to the merits. Defendant argues that the state failed to establish the scientific validity of the concept of grooming to which the witness testified and that the trial court therefore erred in ruling that the testimony was admissible under OEC 702. We review the admissibility of scientific evidence for errors of law. State v. Branch , 243 Or. App. 309, 314, 259 P.3d 103, rev. den. , 351 Or. 216, 262 P.3d 402 (2011).
Evidence perceived by jurors to be scientific "possesses an unusually high degree of persuasive power." O'Key , 321 Or. at 291, 899 P.2d 663. The trial court's role is to ensure that the persuasive appeal of such evidence is legitimate. Id. Toward that end, when evidence is scientific in nature, the court must determine that the evidence is scientifically valid before admitting it. See id. at 292, 899 P.2d 663. In conducting that analysis, the court is to keep in mind the purpose for which the evidence is offered. State v. Perry , 347 Or. 110, 122, 218 P.3d 95 (2009) ; O'Key , 321 Or. at 302, 307, 899 P.2d 663. Additionally, the focus of the inquiry must be on principles and methodology, not conclusions. Id. at 305, 899 P.2d 663. Weaknesses in a given scientific study or errors in an expert's analysis do not render scientific evidence invalid; that is, they go to the weight of the evidence, not whether the factfinder should be allowed to hear it in the first place. Thoens v. Safeco Ins. Co. of Oregon , 272 Or. App. 512, 537, 356 P.3d 91 (2015).
The Supreme Court has identified various nonexclusive factors that may be relevant when assessing the scientific validity of evidence under OEC 702. In Brown , the court identified seven primary factors: (1) the technique's general acceptance in the field; (2) the expert's qualifications and stature; (3) the use which has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the invention; and (7) the extent to which the technique relies on the subjective interpretation of the expert. 297 Or. at 417 & n. 5, 687 P.2d 751. Then, in O'Key , the court adopted four additional factors from Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) —the leading federal case on the validity of scientific evidence—some of which overlap with the Brown factors: (1) whether the theory or technique in question can be and has been tested; (2) whether the theory or technique has been subject to peer review and publication; (3) the known or potential rate of error and the existence of operational standards controlling the technique's operation; and (4) the degree of acceptance in the relevant scientific community. O'Key , 321 Or. at 303-04, 899 P.2d 663.
The Brown / O'Key factors are nonexclusive, not every factor needs to be considered in every case, and no single factor is decisive. See Southard , 347 Or. at 134, 218 P.3d 104 ; Brown , 297 Or. at 417 & n. 5, 687 P.2d 751. Ultimately, determining whether evidence is scientifically valid for purposes of OEC 702 is a flexible process aimed at ascertaining the scientific validity of the principles underlying the evidence. O'Key , 321 Or. at 303, 899 P.2d 663. The Supreme Court has demonstrated that flexibility when faced with scientific evidence as to which of the Brown / O'Key factors do not...
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State v. Williams
...reject defendant's argument on the merits, so we do not resolve the close preservation question. In State v. Henley , 310 Or App 813, 486 P.3d 853, rev. den. , 368 Or. 638, 496 P.3d 633 (2021) ( Henley II ), we recently considered a challenge to the scientific validity of testimony related ......
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...that, because this case is before us for the first time, we are not subject to the same constraints that we are in State v. Henley , 310 Or. App. 813, 486 P.3d 853 (2021), another case decided today. In Henley , on a second appeal after remand, we decline to revisit an OEC 403 issue that we......