State v. Stafford

¶1concurring.

¶2I agree with the majority that defendant preserved the argument that the state failed to establish an adequate foundation under State v. Brown, 297 Or 404, 687 P2d 751 (1985), for the admission of Dr. Knapp’s testimony. I also agree that the disputed evidence is relevant under OEC 401. My disagreement with the majority is with its holding thát this is not “scientific evidence” as those terms are used in Brown. For the reasons discussed in Judge Landau’s dissent, in my view, we are compelled by existing case law to hold that this is scientific evidence and that an adequate foundation under Brownmust be established for the admission of the evidence at issue here. However, as I will explain, it is my position that the case law establishes that Brownis to be applied in a flexible manner depending on the nature of the particular evidence. Applying the Brownfactors here in that manner, I would hold that an adequate foundation was established.

¶3As noted above, I believe that Judge Landau is correct that the Oregon Supreme Court and this court have clearly held that psychological evidence, similar in nature to the evidence presented here, should be evaluated as ‘scientific evidence’ for purposes of admissibility under Brown. State v. Milbradt, 305 Or 621, 756 P2d 620 (1988); State v. Stevens, 147 Or App 592, 599, 938 P2d 780 (1997), rev allowed 326 Or 57 (1997); State v. Lawson, 127 Or App 392, 872 P2d 986, rev den 320 Or 110 (1994); State v. St. Hilaire, 97 Or App 108, 112, 775 P2d 876 (1989). The majority attempts to distinguish the holdings in the above cases on the basis that Knapp’s testimony here is offered for a different purpose and that the force of Knapp’s observations does not *461flow from psychological tests or other scientific principles, but from observations made in light of his training and experience. In my view, however, under the existing case law, this distinction does not lead to the conclusion that the Brownfactors do not apply. Instead, this difference dictates how the Brownfactors should be applied.

¶4I would begin by emphasizing that, in applying the Browntest, the focus should not be on assessing the correctness of the scientific proposition that is being offered; that is a task for the trier of fact. Rather, the focus of the Browninquiry should be on the scientific methodology underlying the scientific proposition. Scientific methodology involves “validation technique[s], consisting of the formulation of hypotheses, followed by observation or experimentation to test the hypotheses.” State v. O’Key, 321 Or 285, 292, 899 P2d 663 (1995). This court appeared to agree that scientific methodology was the proper focus when applying the Brown factors in our decisions in Jennings v. Baxter Healthcare Corp., 152 Or App 421, 428, 954 P2d 829, rev allowed 327 Or 317 (1998):

“[The seven Brownfactors] are to be used to help the court to determine whether the methodology underlying the scientific evidence is sufficiently reliable. Moreover, the Brownfactors focus on whether scientific evidence has a level of reliability sufficient for it to have probative value and are not to be used to determine whether ‘the evidence reflects or rests on a certain or indisputably correct scientific proposition.’ Boger v. Norris & Stevens, Inc., 109 Or App 90, 93, 818 P2d 947 (1991), rev den 312 Or 588 (1992).” (Emphasis in original.)

¶5It is also important to recognize, as the majority does, that the Browntest was developed with more traditional scientific evidence in mind and, as a consequence, the application of the test to psychological evidence is not a precise fit. For example, four of the Brownfactors use the terms “technique” or “invention.” The proffered evidence here, of course, does not involve a “technique” or “invention.” Rather, the evidence here consists of generalizations about human behavior made by a person trained in assessing particular kinds of human behavior. In the words of Knapp, the witness *462offering the disputed evidence here, grooming is “a description of a pattern of behavior that offenders generally go through, some more than others.”

¶6The court in Brown, and in subsequent cases, appears to have recognized these incongruities in the application of Brownto psychological evidence by declaring that the Browntest is not a mechanical test for the admission of scientific evidence and in its admonition that the test should be applied in a flexible manner, depending on the characteristics of the particular evidence. O’Key, 321 Or at 300; Brown, 297 Or at 417-18. I would hold that, in applying the Browntest to psychological evidence, we need to take into account the nature of the particular evidence and, in particular, to focus on the methodology used to develop the evidence.

¶7The manner in which I would apply the Brownfactors differs from that used by Judge Landau in that his major focus is on the validity of the theory being offered by the expert here, which he labels as “grooming,” rather than on the scientific methodology that Knapp used to develop this theory. Judge Landau appears to consider grooming to be the “technique” or “invention” that we are evaluating and concludes that the Brownfactors are not satisfied here because there is no evidence of the general acceptance of grooming as a technique, no evidence about the use that is made of grooming, the potential rate of error of grooming or the novelty of the use of the concept of grooming. Grooming, however, is the scientific theory here. In my view, we should evaluate how Knapp arrived at the premise that there is a generalized pattern of behavior called grooming. If the scientific methodology used in arriving at this theory is sound, and the evidence otherwise satisfies the relevancy test, it is for the trier of fact to determine the weight to be given to the evidence. OKey, 321 Or at 322.

¶8This court used the above approach in applying the Brownfactors to this type of evidence in St. Hilaire. That case involved the question of the admissibility of testimony by a police officer who specialized in sex abuse cases regarding typical behavior by child victims of sexual abuse. The witness offering the evidence in St. Hilaire, Robson, had worked for 14 years investigating crimes involving child abuse and child *463sexual exploitation. He had received extensive training on the subject of sexual abuse of children and had interviewed personally over 400 alleged sex abuse victims. The court in St. Hilairenoted at the outset that the Brownfactors should serve as “guidelines,” not as a checklist. It then explained its application of Brown:

“In testifying about the typical behavior of sexually abused children, Robson merely drew observations from his extensive experience interviewing them. He was clearly qualified to do that. Moreover, because most of the children whom he had interviewed were known to have been abused, there was a low potential for error in his observations. Finally, because the testimony consisted of Robson’s factual observations, there was little room for subjective interpretation on his part.

“It is true that the state might have offered evidence on the existence of specialized literature in the field of the behavior of child abuse victims. Given that Robson’s testimony was based on first-hand experience, however, that foundation was unnecessary. None of the remaining Browncriteria applies to the type of testimony offered here.” St. Hilaire, 97 Or App at 113 (emphasis added).

¶9A similar analysis is appropriate here. Defendant does not dispute that Knapp was an expert. Knapp has a masters’ degree in clinical psychology and has been licensed as a clinical psychologist in Oregon since May 1984. He has had specialized training in the treatment of persons who have been charged with or convicted of sexual crimes and has worked with sexual offenders during that time conducting group therapy, individual therapy and making psychological assessments of offenders. He has continued to take courses in the field of sexual abuse, has written on sex abuse issues and has testified on such issues. He testified that he presently is working in an offender treatment program. He explained:

“I have a treatment program in Ashland that has about 40 adult males involved in it at this time. The program is a two to three year program. It involves getting the person to make full disclosure about their sexual history, working with them to help them understand their high risk situation-thoughts, feelings and behaviors — that are antecedent, or come before, sexually acting out. It helps them understand the side of themselves that perhaps many of *464them don’t want to acknowledge, that leads them into doing this kind of offense in the first place. For example, personality characteristics like being self-centered, not looking at consequences to one’s actions, those kinds of things.”

¶10Knapp’s testimony regarding the pattern of behavior that he describes as grooming was drawn from his observations based on his training and personal experience. He was clearly qualified to so testify. Knapp’s testimony consisted mostly of factual observations about the behavior of sexual offenders. Although Knapp’s generalizations included some subjective interpretation, for the most part, his testimony consisted of objective observations of certain behavior that he had observed in sexual offenders. The technique used to develop Knapp’s proposition, namely, observation and assessment of sexual offenders by a person with training and experience, is certainly a well-accepted method of developing psychological evidence. As with most techniques associated with psychological evidence, this technique does not readily lend itself to providing objective, empirical data on which to base a potential rate of error, as do more traditional scientific tests. There likely is specialized literature on the subject of grooming, but none was introduced here. The Brownfactor regarding the “novelty of the invention” is not particularly meaningful here, as we are not evaluating an invention.

¶11After considering the above factors, and in view of the nature of this evidence, I would hold that an adequate foundation has been established under Brownfor the admission of the evidence. Further, as noted above, I agree with the majority that the evidence is relevant under OEC 401. The remaining question is whether the evidence, even though relevant, should be excluded under OEC 403, because it is unfairly prejudicial. The application of OEC 403 was explained by the court in Brown:

“This rule requires trial courts and, in some cases, appellate courts to evaluate the degree to which the trier of fact may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence, thereby leading the trier of fact to abdicate its role of critical assessment. See 3 Weinstein’s, supra 702-19.” 297 Or at 439.

¶12*465The court in Brownwent on to conclude that because polygraph evidence has “an aura of scientific infallibility” and goes directly to the essence of the trial process, namely, the truthfulness of the witnesses and the defendant, it must be excluded as unfairly prejudicial.

¶13In evaluating here whether the trier of fact will be overimpressed by the disputed evidence, again I believe that we need to take into account the nature of this evidence. In particular, we should consider the difference between the impact of psychological evidence versus more traditional scientific evidence. The impact of more traditional scientific evidence, or what is often referred to as “hard scientific” evidence, is discussed by one commentator.1

“The particular concern about juries and ‘hard’ scientific evidence traditionally covered by the Frye test is that juries are not in a position to fairly and intelligently weigh evidence when the key to understanding the evidence is locked up in some inscrutable device or process which cannot be cross-examined. Additionally, the evidence by its ‘scientific’ nature may tend to elicit unquestioning juror acceptance. Where the jury is in the position of either being virtually compelled to accept the validity of the evidence because it cannot effectively be cross-examined or irrationally wanting to believe the evidence simply because it appears to be unassailably ‘scientific’, the Frye test seeks to assure that the evidence is reliable. The general acceptance by the scientific community serves to compensate for the jury’s inability to fairly weigh the evidence by at least assuring that the jury is not likely to be misguided by placing reliance on the evidence.” David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or L Rev 19, 85 (1987).

¶14"While juries likely do give some deference to psychological evidence, such evidence does not consistently have the *466same effect on jurors as hard scientific evidence. Psychological evidence generally is not information that a juror is compelled to accept because it is inscrutable and difficult to cross-examine. Psychological evidence is most often derived from observations of human behavior. Jurors often may draw, at least to some extent, from their own life experience in assessing the reliability of such evidence and meaningful cross-examination is often available to assist the trier of fact in assessing the reliability of the evidence.

¶15As the court explained in O’Key, “unfair prejudice” under OEC 403 does not mean that the evidence is harmful to a party’s case:

“In the context of OEC 403, ‘unfair prejudice’ does not mean ‘evidence is harmful to the opponent’s case — a central reason for offering evidence.’ [State v.] Hampton, 317 Or [251,] 259 n 15, [855 P2d 621 (1993)]. Rather, it means an undue tendency to suggest a decision on an improper basis, commonly although not always, an emotional one. State v. Pinnell, 311 Or 98, 105-06 n 12, 806 P2d 110 (1991). ‘Unfair prejudice’ describes a situation in which the preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to establish the fact of consequence.” 321 Or at 321.

¶16I would hold that the evidence here is not unfairly prejudicial. The existence of a pattern of behavior — labeled as grooming — provides one possible explanation for defendant’s acts of touching the alleged victims. Knapp never testified that defendant did engage in grooming. Rather, he described grooming as a general pattern of behavior and indicated that whether the pattern existed in a particular case must be determined based on the “context of the situation.” As recognized by the court in O’Key, the jury is capable of evaluating such evidence. 321 Or at 305. For all of the above reasons, I would hold that the trial court properly admitted Knapp’s testimony.

¶18dissenting.

¶19I would hold that the testimony of Dr. Knapp is inadmissible. In my view, the lead opinion wrongly concludes that the admissibility requirements of State v. Brown, 297 Or 404, 687 P2d 751 (1984), do not apply. They do apply, as the decisions of the Supreme Court and this court readily demonstrate. Moreover, and contrary to the conclusion of Chief Judge Deits’s concurring opinion, those admissibility requirements have not been satisfied on the record developed by the state in this case. I therefore would reverse and remand, and, *471from the decision of this court to the contrary, I respectfully dissent.

¶20I begin with the question whether Brownapplies to Knapp’s testimony. The state’s questioning of Knapp was relatively brief. It elicited from him that he is a licensed clinical psychologist, that he received specialized training in the treatment of people who have been charged with or convicted of sexual crimes, that he has published at least one article on treating sexual offenders, that he is a member of the Association for the Treatment of Sexual Abusers, that he has testified in court on a number of occasions on the subject of sexual abuse, that he reads professional journals to keep up on developments in the treatment of sexual offenders, and that he runs a treatment program for approximately 40 male offenders. With that foundation, Knapp then testified as follows:

“Q. Based on your training and experience on the issue of sexual abuse and sexual offenders, is there a concept that you’re aware of that’s known as grooming?

“A. Yes.

“Q. And could you please explain to this jury what that concept is and what it entails?

“A. When an offender prepares a child for ultimate sexual victimization, he has to get close to the child and create a relationship with the child. And grooming is the term that’s used to describe this behavior on the offender’s part, of getting close to a child, making friends with the child, becoming perhaps a confidant of the child, getting the child used to certain kinds of touching, play activities. Most offenders that I know groom with relationship; that is, they become a confidant, friend, close associate of the child, do many things with the child, buy them gifts. Many of them expose the child to varying degrees of touching that is non-sexual in nature, but eventually leads up to sexual touching; touching on the legs, the arms, back rub, applying suntan lotion, often using legitimate reasons like that for the touching.

“Also, in grooming there’s this concept that the offender very subtly oftentimes leads the child into feeling somehow responsible. Some offenders might *472ask the child, Do you. mind if I do this? And the child, who really has no power in the relationship to begin with, doesn’t object. And so then, when the sexual molestation follows, the child feels that he or she must have been some kind of partner in this.”

¶21On cross-examination, defendant asked if what Knapp described as “grooming” constituted a technique or a theory. Knapp explained that “[i]t’s just a description for a pattern of behavior that offenders generally go through, some more so than others.” He further explained that grooming “always needs to be interpreted in the context of a situation,” including the offender’s history, the child’s age and sex, the location of any touching, and the circumstances of that touching.

¶22On redirect, the state expanded on that point and asked whether, if the individual in question previously had been convicted of sexual assault following preliminary, ostensibly nonsexual, touching, then such information would indicate that the individual later engaging in the same sort of ostensibly nonsexual touching in fact has engaged in grooming. Knapp replied, “yes.”

¶23On further cross-examination, defendant questioned Knapp about that point, asking whether it made any difference whether the prior conviction was very old. Knapp replied that he would consider that fact. He then elaborated:

“I think that conclusions in this matter are not either or. I mean, they’re not either 100 percent or zero. I think they’re tentative, always, because prediction of this kind of behavior or interpretation of this kind of behavior is an interpretation based on the context of the situation in which it occurred, as I have elaborated.”

¶24The state then pursued the matter further, posing to Knapp a fairly detailed hypothetical situation and asking him whether he would consider that to constitute grooming behavior. When Knapp answered in the affirmative, the state concluded its examination.

¶25The lead opinion holds that the foregoing testimony does not implicate the admissibility requirements of Brown, because what Knapp said was not “scientific evidence.” *473According to the lead opinion, “scientific evidence” does not include evidence that is “based on personal observations that does not draw its convincing force from a principle of science.” 157 Or App at 455.1 cannot accept that statement of the law for two reasons. First, it is a bald tautology — scientific evidence is what draws its convincing force from science — and is essentially meaningless. I can only imagine the difficulty the bench and practicing bar will have in applying the holding of lead opinion in future cases. Second, and apart from that, I can find no support in the case law for the lead opinion’s statement of the applicable law. So far as I can tell, it rests entirely on a revisionist reading of the relevant decisions of the Supreme Court and this court.

¶26In Brown, the Oregon Supreme Court held that, before “scientific” evidence may be admitted, the trial court must

“identify and evaluate the probative value of the evidence, consider how it might impair rather than help the fact-finder, and decide whether truthfinding is better served by exclusion or admission.” Brown, 297 Or at 409.

¶27The court did not define precisely what is “scientific” evidence and, hence, subject to that foundational inquiry. The Supreme Court addressed that problem in State v. O’Key, 321 Or 285, 291-93, 899 P2d 663 (1995), explaining:

“This court’s definition of ‘scientific’ evidence in Brownrecognizes that it is difficult to set a more definitive boundary between ‘scientific’ evidence and ‘technical or other specialized knowledge,’ which are the other types of evidence requiring expert proof. As Professors Mueller and Kirkpatrick state:

“ ‘Most expert testimony rests at least partly on science. In many areas the scientific underpinning is well established and the criteria set out in [Rules] 702 and 703 work well. The requirements are essentially three: The witness must qualify as an expert, his testimony must be helpful ([Rule] 702), and he must have an adequate basis for what he says ([Rule] 703). Under these criteria, an enormous amount of conventional scientific evidence is routinely admitted.’ Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 7.8, 990 (1995).

*474“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. …

…

“We need not attempt precisely to distinguish ‘scientific’ from other types of expert testimony under the Oregon Evidence Code. For now, we hold that, in the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid.” (Footnotes omitted; brackets in original; emphasis added.)

¶28Thus, contrary to the lead opinion’s reading of the cases, whether expert testimony relies on some “scientific” proposition, technique, or formula is not the point. It is, as the court explained, whether the jury likely will perceive the testimony to have a basis in science and thereby regard it with enhanced persuasive force. Id. at 292-93.

¶29Consistent with that general principle, the cases of both the Supreme Court and this court have required that testimony concerning psychological “syndromes” or “profiles” must satisfy the requirements of Brown. For example, in State v. Milbradt, 305 Or 621, 631, 756 P2d 620 (1988), the court held that the testimony of an expert about the way child victims normally react to sexual abuse was “scientific evidence” and implicated the admissibility requirements of Brown. Similarly, in State v. St. Hilaire, 97 Or App 108, 112-13, 775 P2d 876 (1989), the state’s expert testified about the behavior of children who were victims of child abuse based on his observations of others in similar circumstances. We held that the testimony was subject to the admissibility requirements of Brown. So also in State v. Lawson, 127 Or App 392, *475395, 872 P2d 986, rev den 320 Or 110 (1994), we held that expert testimony concerning the extent to which defendant’s behavior was consistent with traits the expert had observed in many other child abusers was scientific evidence that implicated the requirements of Brown.

¶30In my view, Knapp’s testimony is indistinguishable from the testimony in Milbradt, St. Hilaire, and Lawson. It is testimony that compares the behavior of an individual with the observed behavior of other individuals with an assumed shared trait. The jury is likely to ascribe special persuasive force to the expert’s characterization of the behaviors. Brown, therefore, must be satisfied.

¶31The lead opinion attempts to distinguish each of the foregoing cases by recasting them as dependent upon the offering of “syndrome” evidence, which the lead opinion defines as the aggregate of signs and symptoms that constitute a “picture of the disease.” 157 Or App at 455 n 7 (quoting Stedmaris Medical Dictionary, 1379 (23d ed 1976). In other words, the majority attempts to distinguish the cases merely by appending a label to them. The label, however, has no independent significance. As we said in Lawson:

“Whether it is labeled a ‘syndrome’ or a ‘profile,’ the type of evidence proffered … in this case involves comparing an individual’s behavior with the behavior of others in similar circumstances who have been studied in the past.” 127 Or App at 395.

¶32That is precisely what Knapp testified to in this case, in which he compared defendant’s behavior with the behavior of others he had observed in the past.1

¶33Even accepting the lead opinion’s description of the cases, the testimony in this case still would be subject to Brown. According to the the lead opinion, Milbradt, St. Hilaire, and Lawson are distinguishable because “[tjhey were concerned with the admissibility of the evidence of the psychological picture of … individuals who physically *476abuse children.” 157 Or App at 457. That, once again, is precisely the nature of Knapp’s testimony. The state itself acknowledges that Knapp’s testimony was offered merely to provide “[gjeneral background information about how sexual abusers” go about physically abusing children.2 It is, in other words, the very “psychological picture” that — by the lead opinion’s own characterization of the case law — is subject to the admissibility requirements of Brown.

¶34I turn, then, to the extent to which the foundational requirements of Brownwere in fact met. In Brown, the Supreme Court explained that, in evaluating the foundation for the admissibility of scientific evidence, trial courts must consider the following 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.

¶35The court also observed, in a footnote, that other factors may be relevant, including the analogy to other scientific techniques whose results are admissible, presence of safeguards in the characteristics of the technique, the nature and breadth of the inference adduced, the clarity and simplicity with which the technique can be described, and the availability of other experts to test and evaluate the technique. Id.at 417-18 n 5. The factors are designed to serve as a guide in *477evaluating the evidence. Id.They are not, however, a checklist; not all factors must be satisfied for the evidence to be admissible. Id.; see also St. Hilaire, 97 Or App at 112 (“The factors are guidelines, not a checklist.”).

¶36Turning to Knapp’s actual testimony, I conclude that the foundation fails to satisfy the requirements of Brown. First, there was no testimony from anyone about the general acceptance of “grooming” as a descriptive term within the field. Knapp testified that it is “just a description for a pattern of behavior that offenders generally go through, some more so than others.” Knapp did not testify about who uses the description, whence it originated, on what basis it was developed or whether it is generally accepted in any field of inquiry. Second, there was no testimony about the use that is generally made of the technique. Once again, the only testimony is that Knapp uses the term as a description for a pattern of behavior. Third, what testimony there was in this case about the potential rate of error does not favor admissibility. Knapp testified that his conclusions about whether certain behavior may constitute “grooming” are “tentative, always, because prediction of this kind of behavior or interpretation of this kind of behavior is an interpretation based on the context of the situation in which it occurred.” Fourth, there is no evidence of any specialized literature on the subject of grooming behavior. The only testimony about professional literature is that Knapp wrote a single article on an unspecified topic related to treatment of sex offenders and that Knapp reads unspecified journals on the general subject of sex offender treatment. Fifth, there is no testimony about the novelty of the use or application of the behavior classification that Knapp described. Sixth, Knapp’s testimony was that the classification of grooming behavior was subjective and based almost entirely on the interpretation of an expert in light of the unique circumstances of each case. In short, the only Brownfactor that favors the admissibility of the evidence is that Knapp was an expert in the field of sex offender treatment. All other Brownfactors weigh against admissibility.

¶37Judge Deits’s opinion insists that, even assuming Brownapplies, under our decision in St. Hilaire, Knapp’s testimony is admissible. I disagree. At issue in St. Hilairewas the admissibility of testimony about an expert’s personal *478observations that certain behavior is typical of child sex abuse victims. He based that testimony on his interviews of 400 alleged victims of abuse, 85 to 90 percent of whom were known to have been abused. We held that the testimony was admissible under Brown, “[m]ost significantly, [because the expert] had personally interviewed over 400 alleged sex abuse victims” who were known empirically to have been abused. St. Hilaire, 97 Or App at 112-13. In testifying about the behavior typical of abused children, we noted, the expert “merely drew observations from his extensive experience interviewing them.” Id. at 113.

¶38In contrast, there is no such record in this case. Knapp testified that grooming is “just a description for a pattern of behavior that offenders generally go through, some more so than others.” The state elicited from Knapp no foundation for that testimony. There was, most significantly, no evidence that it was based on Knapp’s personal observation of a large number of individuals who are empirically known to have engaged in grooming behavior. It may well be that his testimony was grounded in precisely such extensive personal observation and experience. The problem is that, unlike the situation in St. Hilaire, there is no such evidence in this case. As a result, Knapp’s testimony reduces to a conclusion that some unquantified percentage of an unquantified number of sex offenders of unspecified nature “groomed” their victims. Moreover, in this case — and in contrast to the expert testimony in St. Hilaire— Knapp did not merely testify from personal observation. He testified whether he would conclude that a hypothetical individual had engaged in grooming behavior on the basis of various hypothetical facts put before him. There simply is no foundation for admitting that testimony under Brown.

¶39Judge Deits’s concurring opinion takes me to task for failing to focus on the methodology by which Knapp arrived at his conclusions about grooming. According to her, because Knapp’s testimony consisted of his observations of sexual offenders, the only real issue is whether the methodology-observation — is an accepted scientific technique. 157 Or App at 464. Because that methodology is “well accepted,” the concurring opinion concludes that Knapp’s testimony is admissible. Id. That analysis, however, is predicated on several false assumptions.

¶40*479First, Judge Deits assumes that the exclusive focus of the Brownanalysis is the validity of a particular scientific methodology and does not include the inferences drawn from that methodology. As O’Keymakes clear, however, that is not the case. Brownitself refers, as an additional appropriate consideration, to the “nature and breadth of inferences adduced” from the application of a particular methodology or technique. Brown, 297 Or at 417 n 5.

¶41Second, she assumes that Knapp’s testimony consisted solely of reports of his observations about offenders. As I have demonstrated, his testimony went well beyond that, including an affirmative response to a hypothetical question about whether facts nearly identical to those involved in this case involved grooming behavior as opposed to innocent touching.

¶42Third, Judge Deits assumes that the methodology involved in this case — observation of only 40 offenders — is well accepted. She cites no authority for that assumption. It is, in fact, precisely the sort of assumption we are not to make in performing our gatekeeping function of screening the admissibility of scientific evidence. Brownrequires the state to demonstrate that the methodology applied in this case is well accepted. The state did not do that in this case.

¶43I wish to emphasize that my conclusions are based on the state’s evidence in this case. I express no opinion whether, in some other case and on a more complete foundational record, grooming evidence might be admissible under Brown.