State v. Marrington

• Decision Date: 31 July 2003
• Citation: 335 Or. 555,73 P.3d 911
• Parties: STATE of Oregon, Respondent on Review, v. Jay Dee MARRINGTON, Petitioner on Review.
• Court: Oregon Supreme Court

73 P.3d 911

335 Or. 555

STATE of Oregon, Respondent on Review, v. Jay Dee MARRINGTON, Petitioner on Review.

(CC 99CR0566; CA A108321; SC S49100).

Supreme Court of Oregon.

Argued and Submitted May 5, 2003.

Decided July 31, 2003.

Anne Fujita Munsey, Deputy Public Defender, Salem, argued the cause for petitioner on review. With her on the briefs were David E. Groom, Acting Executive Director, and Beth Corbo, Deputy Public Defender.

Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.

De MUNIZ, J.

This criminal case requires that we decide whether an expert's testimony that delay in reporting is a predominant feature in a child's disclosure of sexual abuse is scientific evidence and therefore subject to the standards for evidentiary admission established by this court in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995). At trial, over defendant's objection on foundation grounds, the trial court permitted the state's expert to testify that delay in reporting is a predominant feature in a child's disclosure of sexual abuse. Defendant was convicted and, on appeal, the Court of Appeals affirmed from the bench. State v. Marrington, 176 Or.App. 651, 34 P.3d 754 (2001). We allowed defendant's petition for review. We now hold that the expert's testimony possessed the potential to influence the trier of fact as scientific assertions and required an appropriate foundation that the state failed to provide. We therefore reverse and remand.

We state the facts and review the evidence in the light most favorable to the state. State v. Oatney, 335 Or. 276, 278, 66 P.3d 475 (2003). Defendant was a family friend of the victim. In April 1999, the victim, who was 12 years old, visited defendant's home for several days. Defendant's son also was visiting during his spring break.

One day during that time period, while the three of them were watching television, defendant and the victim were seated on a couch. Defendant touched the victim's genitals and rubbed her hand on the crotch of his pants. To get away from defendant, the victim told defendant that she wanted to play with defendant's son, left the couch, and played with the son. The victim then telephoned her father and asked him to take her home because she felt uncomfortable.

The victim testified that she did not tell her father about the abuse because "I thought that it would ruin our friendship together and I didn't want this to happen because of me." Later, her mother arrived to take her home, but the victim did not tell her mother about the incident either.

Over a month later, the victim revealed the incident to her mother. The victim testified that she had told her mother "[b]ecause I thought that if I didn't tell her then it might happen some time later and then it would be my fault because I didn't say anything and then they would think that mine was not true." Later, she related her story to her father, her pastor, and a police detective.

Defendant was charged with two counts of first-degree sexual abuse, ORS 163.427—one count for touching the victim and one count for rubbing the victim's hand on the crotch of his pants. In its case-in-chief, the state offered the testimony of Shouse, a program manager and clinical supervisor at Family Friends, a private nonprofit organization that specializes in the treatment of sexually abused children. In discussing her background, Shouse stated that she had earned bachelor's and master's degrees in psychology, and that she was licensed by the state and certified by the National Board of Certified Counselors. She also testified that she had worked at Family Friends for 12 years and that she was current with the literature and research in the area of child sexual abuse.

After the witness had related her background, the following exchange took place:

"Q. Does [the victim] display any characteristics of a sexually abused child?

"A. She would display a very prevalent characteristic of abused children in her delayed reporting in that I believe the incident had been identified as being around Spring break in March and then the disclosure came out a couple of months later.

"Q. Okay. So based on your expertise can you say whether or not it is unusual for a child not to have reported an incident of sexual abuse immediately?

"A. Delayed reporting is more * * *

"[Defense Counsel]: (Interposing) I think that kind of thing gets into what is essentially a scientific analysis and that the criteria established by State v. Brown and the cases that follow it have not been met for that kind of statistical presentation.

"THE COURT: This kind of testimony is routinely received in Oregon courts.

"Go ahead.

"* * * * *

"Q. Based on your expertise, can you say whether or not it's unusual for a child not to report an incidence of sex abuse immediately?

"A. Actually it is anticipated that a child would not report abuse immediately. The delay is a predominate [sic] feature in disclosure. Part of this body of literature really jelled in the mid-eighties by Dr. Roland Summit from Harbor Medical School at UCLA. In his work as a psychiatrist he came to realize that this delayed disclosure is very much against what most adults would have believed. Most adults would have believed that if a child is harmed they would tell right away and reach out for some safety. But that's not what was happening. So in his study of sexual abuse and looking at the elements of secrecy and helplessness that kind of surround this that the abuse happens in isolation; that the child is most frequently advised not to tell; there may be real or implied threats to insure that secrecy and also looking at the imbalance of power between a child and a caretaking adult, the child is in a helpless state.

"So some of these—understanding this background help us to understand delayed reporting. Now, delayed reporting is never used to prove a molest but it holds up against the myths of what an adult might expect.

"There are so many reasons for a child not to tell. Shame is one; talking about sexual content is not something that we leap forward to do. Also that sense the child feels that they may be in trouble or that a loved one would get into trouble or that a family or relationships might separate. Those are really disturbing to a child. Children seem to have this sense of self that the larger outside world is really dependent upon their behavior and they do a lot to protect adults.

"We find not only is delayed reporting really prevalent but we have so many instances where we have substantiated abuse either through a confession of an offender or a child having a sexually transmitted disease and the child continues to deny that abuse happens."

In his own defense, defendant testified that no sexual contact had occurred and that the victim had accused him of sexual abuse as revenge because he had expressed anger at her for repeatedly turning off the television while he had been watching it.

At the outset, we clarify the scope of the evidentiary question that we resolve in this case. Based on some of the prosecutor's opening and closing remarks,¹ and the manner in which the prosecutor phrased certain questions to Shouse,² it appears that the state might have intended the trier of fact to consider Shouse's testimony about the victim's delay in reporting the incident as a "characteristic" of a child who had been sexually abused or, in other words, as substantive proof that the child had been abused. The state now concedes on review that evidence regarding the child's delay in reporting was not admissible for that purpose. However, Shouse later clarified her testimony, stating that "delay is a predominate [sic] feature in disclosure" and that "delayed reporting is never used to prove [sexual abuse,] but it holds up against the myths of what an adult might expect." Thus, it is that assertion — that delayed reporting is a predominant feature of disclosure in otherwise verified cases of child sexual abuse—that frames the evidentiary question in this case. We now turn to that question.

Defendant argues that Shouse's testimony regarding the victim's delayed reporting of the alleged abuse is "scientific" evidence and therefore must comply with the standards for admission of "scientific" evidence. The state responds that "evidence about typical reactions of victims of abuse, when offered to explain otherwise puzzling behavior does not require such a foundation." As explained below, we agree with defendant.

This court has never precisely defined what makes evidence "scientific." In Brown, this court observed that "[t]he term `scientific' * * * refers to evidence that draws its convincing force from some principle of science, mathematics and the like." 297 Or. at 407, 687 P.2d 751. Later, in O'Key, this court emphasized that whether proffered expert testimony is scientific evidence, requiring an appropriate foundation, depends primarily on whether the trier of fact will perceive the evidence as such. In that regard, the O'Key court explained:

"Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert. Propositions that a court finds possess significantly increased potential to influence the trier of fact as scientific assertions, therefore, should be supported by the appropriate scientific validation. This approach `ensure[s] that expert testimony does not enjoy the persuasive appeal of science without subjecting its proposition

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