State v. Henley

Citation363 Or. 284,422 P.3d 217
Decision Date19 July 2018
Docket NumberSC S064494,CC 09072338C (SC S064494)
Parties STATE of Oregon, Respondent on Review, v. Robert Lewis HENLEY, aka Sonny Henley, Petitioner on Review.
CourtOregon Supreme Court

Mary M. Reese, Senior Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before, Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices.**

NAKAMOTO, J.

In this criminal case arising out of allegations of child sexual abuse, the issue is whether the expert testimony that the trial court allowed about "grooming" children for later sexual activity is "scientific" evidence that requires a foundational showing of scientific validity under OEC 702. At trial, over defendant’s objection, the trial court permitted a forensic interviewer to testify about defendant’s behavior that may have constituted "grooming" of the victim for sexual abuse if defendant had the requisite intent, without the state first establishing that the testimony about grooming was scientifically valid and reliable.

Defendant was convicted of first-degree sexual abuse and attempted first-degree sodomy. On defendant’s appeal, the Court of Appeals held that the testimony was not scientific evidence for which a foundation was required. State v. Henley , 281 Or. App. 825, 386 P.3d 126 (2016). For the reasons that follow, we conclude that the testimony was scientific evidence and that the trial court erred in admitting it without a proper foundation. Given the record, we decline to decide the validity and reliability of the expert testimony on review. We also conclude that the admission of the testimony was not harmless. Therefore, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand to the trial court for further proceedings.

I. FACTS
A. The Alleged Abuse

Defendant’s trial centered on whether he had sexually abused his stepdaughter, M, during a family camping trip. As to that specific event, the state presented the following evidence.

At the time of the alleged abuse, defendant had been married to M’s mother for nine years. M, who was then 11 years old, lived with her mother and defendant in Idaho. One summer weekend, defendant, M, her mother, two of M’s siblings, and an adult male friend of the family went camping in eastern Oregon. They all slept in a camper—a pop-up tent trailer with fold-out beds on either end of a middle living space. Defendant and M’s mother slept in one fold-out bed and M’s siblings slept in the other. M slept on a mattress in the middle area, next to her mother and defendant. The family friend slept on another mattress in the middle area.

Defendant and the friend stayed up late and went into the camper after the others were already in bed. M’s mother woke up and tried to persuade defendant to come into bed with her. Instead, defendant sat down next to M on M’s bed, and M’s mother went back to sleep. M awoke briefly while defendant was lying on her bed, and then she fell back to sleep.

M was awakened again early the next morning, when defendant, who was lying beside her, pulled down his own pants and pulled M’s sweatpants and underwear to her ankles. He inserted his fingers into her vagina. In an effort to stop him from touching her, M rolled over onto her stomach and then onto her side. Defendant put his hands on M’s sides, attempted to spread her buttocks with his thumbs, and put his penis in her "butt crack." Defendant rubbed against her, ejaculated, and said, "Ahh."

M then sat up. Defendant also sat up and asked her if she was okay. M’s mother then woke up, and defendant lay back down in M’s bed. M’s mother asked M if anything was wrong, but M answered no. M’s mother asked M to come up into her bed, and M complied and fell asleep. When M woke up, defendant was not in the camper.

Later that day, M told her mother what had happened. M’s mother replied that she did not know what to say, but that she would arrange a mattress to make a barrier to prevent defendant from getting into bed with her again that night. Sometime later, M’s mother told defendant that M had said he had touched her and rubbed his penis against her buttocks. Defendant responded that he did not know what had happened, as he had been asleep.

B. The Investigation and Charges

The police became involved later that month. M’s father and his fiancée also lived in Idaho. When the camping trip was over, M, as previously planned, went to stay with her father and his fiancée for a month. M did not immediately tell her father what had happened on the camping trip. M eventually told her father’s fiancée about massages that defendant had given her, and she relayed that information to M’s father. M’s father asked M to tell him if any adult had ever touched her inappropriately. Later that day, M told her father and his fiancée about the abuse in the camper. M’s father called the local police in his community, where the investigation began.

Courtney Palfreyman, a forensic interviewer for Children at Risk Evaluation Services (CARES) at St. Luke’s Hospital in Boise, Idaho, interviewed M. Palfreyman’s interview of M was video-recorded. During the interview, M told Palfreyman about the recent camping incident. In addition, she described massages that defendant had given her that made her uncomfortable. M also said that, when she was five or six years old, defendant had crawled into bed with her one night and asked her to touch his penis. M explained that she did not comply and instead told defendant that she needed to go to the bathroom and went to find her mother.

Because the camping incident occurred in Oregon, the case was transferred to Malheur County, Oregon. Defendant was charged with one count of first-degree sexual abuse and one count of first-degree sodomy based on his conduct in the camper.

C. Trial

Citing OEC 403 and OEC 404(3), defendant filed a motion in limine seeking to exclude evidence from his impending jury trial, including testimony that defendant had massaged M inappropriately. The state responded that evidence of inappropriate massages was admissible to demonstrate defendant’s "grooming behavior as part of [his] planning or preparation for the later sexual assault" of M. The trial court denied defendant’s motion.

At trial, M testified in conformance with the recorded CARES interview. M testified regarding the camping incident, the incident from years earlier,1 and the massages defendant had given her. The massages were the subject of the expert’s grooming testimony at issue. During M’s direct examination, she testified that defendant had been giving her massages from time to time, at her request. M explained that defendant had massaged her shoulders but also "down [her] legs and up by [her] chest." M did not like when defendant massaged her chest, though, because she "thought he was going too far into [her] other areas." M also testified that she told her mother that defendant was massaging "too close into other areas [she] didn't like."

Palfreyman also testified for the state. She told the jury that she has a bachelor’s and a master’s degree in social work and received specialized training in forensic interviewing, both basic and advanced, with the American Professional Society on the Abuse of Children. She stated that she had over 10 years of experience working in child welfare and protection and as a forensic interviewer. She had worked for the State of Idaho from 1999 and then had been a forensic interviewer with CARES since 2005. At the time of the trial in 2009, she had completed over 600 forensic interviews.

During Palfreyman’s testimony, the prosecutor played for the jury the video recording of her interview of M at CARES, pausing it at various points to ask Palfreyman clarifying questions. In the recorded interview, M said that she had told her father’s fiancée about several massages from defendant and described the massages to Palfreyman:

"When I'm sore, he'll massage me, but he won't get where I need him to. He'll go all over the place [gesturing and putting her hands palms down in the middle of her chest]. And, like last month, I asked him to massage my neck 'cause I had a neck ache. I'm never gonna do that again because of what happened, because I'm so scared of him—with the camping. But, I was asking him to massage my neck. He was massaging it, and he was going down here [putting her hands in the middle of her chest], and then I asked him to stop going down here [putting her hands to her chest]. And he was all, okay; then he went down here [gesturing toward her lower back]."

In the recording, Palfreyman confirmed that M was pointing to her lower back, and M described that defendant had also massaged her on the back of her upper legs that time.

After the conclusion of the video, the prosecutor asked Palfreyman the following question about her training on grooming: "In terms of this particular interview or in general, have you had any training regarding a concept called grooming?" Palfreyman answered in the affirmative. Defendant objected to Palfreyman’s qualification to testify as an expert on grooming behavior. In response, the prosecutor requested an opportunity to qualify Palfreyman as an expert and asked her several other questions about her training on grooming:

"[PROSECUTOR]: So you've actually had training in the area of grooming is that correct?
"A: Yes.
"[PROSECUTOR]: Okay. But you're—you're not a psychologist or anything like that?
"A: No.
"[PROSECUTOR]: Okay. What sort of training have you had?
"A: Um, just due to my forensic interview training we talk about grooming (INAUDIBLE) leading up to offending, and
...

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    ...reversal. Errors that had "little likelihood of affecting the verdict" are harmless and do not warrant reversal. State v. Henley , 363 Or. 284, 307, 422 P.3d 217 (2018). "In making a determination of harmlessness, the court does not ask whether the evidence of guilt is substantial or compel......
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