State v. Stafford

• Decision Date: 09 December 1998
• Docket Number: 94CR0927,CA A90616
• Citation: 157 Or. App. 445,972 P.2d 47
• Parties: STATE of Oregon, Respondent, v. Neil Bennett STAFFORD, Appellant.
• Court: Oregon Court of Appeals

972 P.2d 47 (1998)

157 Or. App. 445

STATE of Oregon, Respondent, v. Neil Bennett STAFFORD, Appellant.

94CR0927

CA A90616

Court of Appeals of Oregon, En Banc.^*

Argued and Submitted May 28, 1997.

Resubmitted August 12, 1998.

Decided December 9, 1998.

David E. Groom, Deputy 49 Defender, argued the cause for appellant. With him on the briefs were Sally L. Avera, Public Defender, and Neil Bennett Stafford, pro se.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Resubmitted En Banc August 12, 1998.

EDMONDS, J.

Defendant appeals from his convictions for three counts of attempted sexual abuse in the first degree, ORS 163.427, and one count of attempted coercion, ORS 163.275. We affirm.

According to the evidence, defendant worked for a business that offered tutoring to school age children. On the morning in question, an eight-year-old student attended a session with defendant; there were no other children at the tutoring facility at that time. Defendant moved to where the child was sitting, placed the palm of his hand on her bare upper thigh and kept it there for about five seconds. Although the child had not complained previously about the room being cold, defendant asked her if she was cold. He turned on the heater in the room, and about five minutes later, he touched her thigh in the same place, again for about five seconds. Later when the child wanted to look over a room divider, defendant picked her up by placing his hands under her arms with his fingers on her chest. Still later, defendant touched the child's thigh again as he reached over to grab a pencil or to show her something.

The child reported the touchings to her parents and indicated to them that they had made her feel uncomfortable. The parents reported the incident to law enforcement authorities, who initiated an investigation. Meanwhile, a second child reported that, during approximately the same period of time, defendant had made her feel uncomfortable on a number of occasions by caressing her mid-thigh with his hand and by looking down her shirt. The child asked defendant to stop his behavior, but he declined. After the child told defendant that she was going to tell her mother about his behavior, he warned her that if she told anyone about his conduct, he would hurt her. The state also offered evidence from three witnesses from California where defendant had lived previously. Those witnesses testified that they had been molested by defendant under similar circumstances. That conduct occurred 17 years earlier for two witnesses and 24 years earlier for another witness.

After the police investigation was completed, defendant was charged with the above crimes. At trial, defendant took the position that his behavior had been misinterpreted by the children and was not related to any interest in sexual gratification. In defendant's first assignment of error, he argues that the trial court erred by denying his motion to exclude the testimony of Dr. Michael Knapp, a licensed clinical psychologist.

Knapp testified that he has had specialized training in the treatment of persons who have been charged with or convicted of sexual crimes, has treated sex offenders throughout his professional career, has conducted group and individual therapy, and has made psychological assessments of offenders. While in practice, he has continued to take courses in the field of sexual abuse, has written an article on sexual abuse issues and has testified in court on such issues. At the time of trial, he was administering an offender treatment program involving approximately 40 adult male offenders.

At trial, Knapp was asked whether there is a concept known as "grooming" in his specialty. He was next asked to explain what the concept means. On direct and cross-examination, Knapp indicated that, within the field of sex offender treatment, the word "grooming" describes a pattern of behavior that offenders generally go through to prepare a victim for the eventual abusive behavior. He said that "grooming behavior" often involves the offender trying to make friends with the child, while at the same time exposing the child to varying degrees of touching that are at first non sexual but then progress to become sexual.¹ On cross-examination, Knapp indicated that, within the field of sex offender treatment, the word "grooming" refers to a pattern of behavior that some offenders go through and that, essentially, he makes a "medical diagnosis" regarding an alleged offender by identifying the individual's intent based on his conduct. He said that he does not require a particular number of acts before beginning to form such a diagnosis and that a report from a child of inappropriate touching, such as the touching of a child on the upper leg to check the child's temperature, would be enough to raise a question in his mind that he would "want to check out."

On redirect reexamination, the prosecutor asked,

"Doctor, if this individual had been previously convicted of touching many children in exactly the same ways that led to sexual intercourse and sodomy and manipulation of the genitals, would that indicate to you that that individual has engaged in grooming?"

Knapp answered in the affirmative. On recross-examination, Knapp again testified that the combination of a prior history of committing sexual abuse together with the touching on the upper leg and the picking up of a child would be significant facts in deciding whether grooming behavior had occurred. Defense counsel inquired if his opinion would be the same if the earlier "sexual situation" was fourteen years in the past, and Knapp replied:

"[T]here are plenty of examples of offenders that molest two or three times in their lifetime and have 20 year spans between incidents of offending behavior, so [I] wouldn't rule it out. I wouldn't rule out a conclusion on my part that this person may have been grooming the child."

At that point in the trial, the prosecutor started to give a lengthy hypothetical example, and defense counsel objected. The trial court overruled the objection. The prosecutor's hypothetical required Knapp to assume that he had before him"an individual in the context of teaching young females in the past and engaging inpicking them up under the armpits in the past and putting his fingers on their upper chest, upper breast area, rubbing their legs, their thighs, which eventually leads to culmination of criminal sexual offenses— sexual intercourse, sodomy and masturbation, touching of the genitals—and this person then is convicted of offenses involving that and sent to prison for a good number of years, and then after release from prison engages in teaching school again and engages in teaching young children of female age, and claims to be interested in finding out how cold or hot the ambient temperature is by touching one of these student's legs on the upper side area twice, to see how cold it is and then to see if the change in the heating apparatus has caused a difference, that person then picks that individual up by the armpits from behind and places his fingers on the person's chest or upper breast area, engages in conduct where he puts his hand on her leg while he is pointing out things, when they're sitting down, school work that's being done; when that individual, in connection with another young female, engages in a process of continually putting his hand on her upper leg in the context of leaning over and pointing things out with regard to school lessons, is told by the second individual that that conduct is not wanted and he still persists— and this is all again in the context of teaching * * *.

"* * * * *

"The last bit of information I'd like you to consider is that the second person advises the school teacher that she's going to report the matter to her mother and the school teacher responds that she better not; if she does, he'll hurt her, he'll hunt her down or haunt her. Based upon all of that information, would you be willing to give us an opinion as to whether or not in your professional opinion you feel that that person has engaged in grooming behavior?"

Dr. Knapp responded, "Yes, I feel that's grooming behavior."

Defense counsel relied on State v. Hansen, 304 Or. 169, 743 P.2d 157 (1987), in support of his argument to exclude Knapp's testimony. He said:

"But the language that I have quoted in the Hansen case as far as what is grooming is the only thing that's really been addressed in our appellate courts as of this point, whichdescribes a process or a technique. As I pointed out in the memorandum, when you look at the pleadings in this case, it doesn't even come close to establishing some kind of grooming.

"Now, the Hansen case, of course, said that as far as grooming, the grooming process cannot be simply put forth for the purpose of establishing a bad character or bad acts. * * * Well, based on the indictment which alleges, again, the first type of conduct and then also the touching of the upper leg, it doesn't even come close to this criteria that was quoted in Hansen * * *.

"By calling Dr. Knapp what they're basically saying is we're going to tell you how an innocent act performed by anyone could in fact be an act of grooming for sexual purposes. There isn't any support for that based on the pleadings other than the fact that they're alleging a grooming process by touching the upper leg.

"* * * Looking at everything in the record pertaining to [the second child], there is not even a hint of some kind of a grooming here. Her allegation, which [the prosecutor] just mentioned a moment ago, about what he alleges happened on this particular day, and it's also alleged again in paragraph 4, Attempted Coercion, is a hostile, aggressive act that has nothing to do with grooming. So as far as [the second child] is concerned, Dr. Knapp's testimony, based on the pleadings and based on the...