State v. Bolton

                                       255

      Argued and submitted September 11, 2019, reversed and remanded
                             March 31, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                LARRY MARSHALL BOLTON,
                     Defendant-Appellant.
            Marion County Circuit Court 15CR16809;
                  A163568 (Control), A163569
                                   

    Defendant appeals from a judgment of conviction for 17 offenses involving
the abuse of his wife. He primarily assigns error to the trial court’s admission,
without a foundation for scientific evidence, of the expert testimony of the state’s
witness about the counterintuitive behaviors of victims. The state contends, in
a cross-assignment of error, that the trial court erred in determining that the
state had not provided an adequate foundation for scientific evidence. Held: As
to defendant’s assignment of error, the expert testimony required a scientific
foundation, and the trial court erred in admitting the evidence as nonscientific
expert testimony. As to the state’s cross-assignment of error, the trial court did
not err in finding that the foundation that was laid was insufficient for scientific
evidence, and that insufficiency is not remedied by scholarly articles offered on
appeal.
    Reversed and remanded.



    Sean E. Armstrong, Judge.
   Daniel C. Bennett, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. Larry
Marshall Bolton filed a supplemental brief pro se.
   Jordan R. Silk, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge,
and Powers, Judge.
    DeVORE, J.
    Reversed and remanded.
256                                                         State v. Bolton

           DeVORE, J.,
         In this criminal case, both defendant and the state
assign error after the trial court entered a judgment that
convicted defendant of 17 offenses involving his wife, J.1 We
address defendant’s leading assignment of error and the
state’s related cross-assignment of error. Defendant argues
that the trial court erred when, without a foundation for
scientific evidence, the court admitted the expert testimony
of the state’s witness about the counterintuitive behaviors
of victims. In a cross-assignment, the state contends that
the trial court erred in determining that the state had not
provided an adequate foundation for scientific evidence. The
state argues, offering scholarly literature on appeal, that
the foundation was sufficient for the nature of the testimony
under the standards of State v. Brown, 

, 

 (1984), and State v. O’Key, 

, 

(1995).
         We conclude that the expert testimony required a
scientific foundation; that the trial court erred in admitting
the testimony as nonscientific expert testimony; that the
trial court did not err in finding the foundation that was
laid was insufficient for scientific evidence; and that the
insufficiency is not remedied by scholarly articles offered on
appeal. We reverse and remand.
         Before returning to those issues, we reject several
other assignments of error at the outset. Defendant argues
that the trial court plainly erred in admitting Exhibit 2, a
diagram, called a “power and control wheel,” that depicts
behavior in which domestic abusers engage. Defendant
argues that the exhibit required a scientific foundation. He
failed to preserve the issue by objecting to its admission. See
ORAP 5.45(1) (requiring preservation of error).

    1
      Defendant was convicted of one count of first-degree sexual abuse, ORS
163.427; one count of first-degree sodomy, ORS 163.405; one count of first-degree
unlawful sexual penetration, ORS 163.411; one count of menacing constituting
domestic violence, ORS 163.190; one count of second-degree assault constituting
domestic violence, ORS 163.175; one count of fourth-degree assault constituting
domestic violence, ORS 163.160(3); two counts of fourth-degree assault, ORS
163.160; one count of strangulation, ORS 163.187; one count of recklessly endangering another person, ORS 163.195; one count of interference with making a
report, ORS 165.572; and six counts of coercion, ORS 163.275.
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          Defendant also argues that the trial court plainly
erred under the Sixth and Fourteenth Amendments to the
United States Constitution by instructing the jury that it
could return a verdict of guilty without a unanimous agreement of the jurors. Defendant did not object to the instruction, and there was no jury poll. Because defendant did not
preserve this issue, we decline to exercise discretion to consider it. See State v. Dilallo, 

, 

 (2020)
(declining to consider unpreserved error in this context).

         In a pro se supplemental brief, defendant assigns
error to the trial court’s ruling excluding evidence of various prior accusations that the victim made against others.
The trial court determined that the probative value of that
extrinsic evidence was substantially outweighed by the risk
of prejudice from confusion of issues under OEC 403. We
conclude that the trial court did not abuse its discretion in
making its determination. See State v. Baughman, 

, 

 (2017) (reciting standard). We reject
the assignment of error without further discussion.

        We review the trial court’s determination that evidence is not scientific for legal error. Brenner v. Nooth, 

, 

, rev den, 

 (2017). To
provide context for the issues addressed, we summarize the
facts.

         In 2011, defendant was 51 years old and J was 24
years old. J moved into defendant’s home when recovering
from drug addiction and escaping a prior abusive relationship. She was underweight, tired, and scared. Soon after
she moved in, while both were in a hot tub, he pulled her
pants off. She got out. At a party, he held her over a couch
and painfully spanked her. Someone called the police. She
left with them and spent the night in a shelter. She was
not attracted to defendant. About 10 days after her arrival,
defendant engaged in forcible intercourse over her objection.
When drunk, he spanked her, sometimes several times a
week. He assaulted her a number of times, causing a bloody
nose or holding her off the ground by the throat, saying he
could kill her. On one occasion and over her objection, he
held J down while a woman performed oral sex on her. At
258                                             State v. Bolton

one point, J’s aunt took her away, but J returned to defendant’s home.
        Defendant told J they should marry, and, in
December 2011, they did, although without her friends or
family in attendance. In March 2012, police spoke with J,
while investigating another matter. She told them of defendant’s abuse, but she did not want to press charges. She left
with the police for a shelter. Defendant called repeatedly
and threatened her if she did not return. She did.
        In the summer of 2013, defendant grew angry
over a torn shirt, threw J to the floor, pulled her hair, and
slammed her head into the ground repeatedly. That year,
she became pregnant.
          After an argument, J prepared to leave to stay with
her sister, and defendant attacked her. She left, but, after
four or five days, J returned to defendant’s home.
         Sometime after the baby was born, J decided to
leave. She secretly saved money and recorded defendant’s
abusive language. In February 2015, J and her daughter left
for a shelter and obtained a restraining order.
        Defendant was charged with 21 offenses for conduct
involving J. Defendant’s theory of the case was that J had
fabricated her account of his actions. He intended to argue
that her behavior, including failing to contact police and
remaining with him, was evidence that her testimony was
untruthful.
        Anticipating that defense, the state filed a pretrial motion to admit expert testimony regarding, among
other things, counterintuitive victim behavior. The motion
explained that counterintuitive victim behavior includes
   “denial of abuse; recanting, minimizing, or changing the
   statement about what happened; not leaving the abusive
   relationship; returning to the abusive relationship after
   leaving; resuming contact with the perpetrator including
   sexual intimacy; not disclosing the abuse immediately;
   covering for the perpetrator; and not cooperating with the
   criminal justice system.”
In its motion, the state wrote:
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   “The State acknowledges that inasmuch as expert testimony regarding Domestic Violence dynamics and counterintuitive victim behavior is offered as psychological or scientific phenomenon (as was the case in Marrington and
   Perry) it would likely have to qualify under the standards
   set forth in Brown/O’Key.”

However, the state insisted that, where the expert testimony
is “narrow in scope,” the testimony “should not be subject to
Brown/O’Key scrutiny.”
         In a pretrial hearing, the state offered the expert
testimony of Downing, the executive director of the Center
for Hope and Safety in Marion County, which is a nonprofit
agency that serves the victims of domestic violence, sexual
assaults, stalking, and human trafficking. Downing testified that she has a bachelor’s degree with double majors in
psychology and women’s studies. She testified that she was
certified by the state as a victim services specialist and has
had “thousands of hours of training,” including in “trauma
informed services for victims.” At the hearing, she offered
testimony about the myths of domestic violence: that the violence is provoked, that domestic violence is confined to low
income people, that victims “just leave [the] abuse,” that a
victim would not return to an abuser, that a person would
report abuse “right away” if abused, and that a victim is
safer after reporting abuse. In effect, she offered to testify
that the behavior that defendant would attribute to J as
inconsistent with having been abused is common among
domestic violence victims and not necessarily reason to distrust the victim’s testimony.
         At the hearing, defendant objected to the admission
of Downing’s testimony, arguing, among other things, that
her testimony was based in behavioral science, that it should
require a scientific foundation, and that her education was
insufficient to be an expert at all. Defendant contended
that the subject was not complex and domestic violence
was common, such that the testimony would not be helpful
because it is not beyond the experience of the jurors. The
state responded that the testimony was “not scientific evidence” and was instead “expert testimony based on decades
of experience working in domestic violence.”
260                                             State v. Bolton

         The trial court noted that Downing lacked an
advanced degree and that her testimony would not be
“admissible as scientific evidence.” That determination
becomes the basis of the state’s cross-assignment of error.
The court determined, however, that Downing qualified as
a nonscientific expert based on her experience and that her
specialized knowledge would be helpful to the jury within
the meaning of OEC 702.
         At trial, Downing testified that she has worked
directly with thousands of victims of domestic violence for
over 25 years. As before, she described her college studies:
  “[PROSECUTOR:]       Can you tell us what your educational
  background is[?]
  “[DOWNING:] So I have a bachelor’s degree from
  Willamette University. I double majored in psychology and
  women’s studies. I’ve also taken graduate level courses
  in different subjects and have had thousands of hours in
  training on—specific to domestic violence, sexual assault,
  stalking and human trafficking.
  “…
  “[PROSECUTOR:] And did those trainings cover specific
  issues, for example, with regard to dynamics of domestic
  violence?
  “[DOWNING:] It did.”
Downing added that, in addition to receiving training on
domestic violence, she has regularly trained other people,
lectured, and testified as an expert on the subject:
  “[PROSECUTOR:]       Do you also conduct these trainings?
  “[DOWNING:] I do.
  “[PROSECUTOR:]       And can you tell us a little bit about
  that?
  “[DOWNING:] So I have trained over 30,000 people all
  across the northwest on domestic violence, sexual assault,
  stalking and human trafficking. I train for the State
  Victims Academy and I’m also—I’ve trained for numerous
  academies. I’ve also guest lectured in universities and colleges around the state.
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   “[PROSECUTOR:] Okay. Have you also testified previously in circuit courts in Marion County and been qualified
   as an expert witness regarding issues of domestic violence?
   “[DOWNING:] Yes, I have been.”
         Turning to the merits, Downing spoke about the
“common misconceptions” surrounding domestic violence.
She described the misconceptions that a victim somehow
provoked the violence, that a victim “can just leave [the]
abuse,” that it is safer to report, that a “victim would report
right away,” and that a victim would not go back to the
abuser. When asked about “the phrase ‘counterintuitive
victim behaviors,’ ” Downing testified that she was familiar
with it. She explained that the phrase refers to a set of common victim behaviors that defy the general public’s expectation for how a domestic violence victim would react to abuse.
Downing explained that the general public is often unaware
of how victims behave and that, in her experience, people
are often “shocked” when they learn about the dynamics of
domestic violence.
        Downing described her own personal experience with the counterintuitive behaviors in which victims
engage. Among them are denying that abuse is happening,
recanting or minimizing reports of abuse, covering up for
a perpetrator, blaming oneself for abuse, being ashamed to
admit being abused, not leaving the abusive relationship,
returning to the abusive relationship, and resuming sexual
intimacy. On occasion, Downing couched her testimony in
terms of the greater national study of domestic violence. In
one instance, Downing referenced national and statewide
observations regarding the particular danger a victim faces
when trying to escape an abusive relationship:
   “[DOWNING:] And the most dangerous time, we’ve found
   overall—and this is nationally—is that when someone is
   leaving an abuser or has left. We’ve had, unfortunately,
   more than 250 individuals—women and children murdered due to domestic violence in the state of Oregon in the
   last few years.
   “And the vast majority of them were already out of the relationship. One had been out of for a year and—or were in the
   process of getting out.”
262                                                             State v. Bolton

In another instance, Downing commented while describing
Exhibit 2—a diagram called a power and control wheel that
depicts common abusive behaviors—that “across the nation
many programs” use the wheel to educate victims.
          In its rebuttal argument on closing, the state
referred to Downing’s testimony about the myths of domestic violence based on “her decades of experience.” The state
recounted the myths that a victim would report abuse,
would never again be sexually intimate, and would leave
the relationship. The state argued that J’s “behavior, while
difficult for you to understand it, is very common.”
       The jury convicted defendant on 17 of the offenses
charged.
         On appeal, defendant assigns error to the trial
court’s ruling that Downing’s testimony was admissible as
nonscientific evidence. He argues that, after his trial, a new
decision, State v. Henley, 

, 

 (2018),
made clear that testimony like Downing’s testimony was
scientific evidence that required a scientific foundation.
         Under Oregon law, scientific, technical, or other
specialized knowledge may be admissible when it will assist
the trier of fact to determine a fact at issue. OEC 702.2
Scientific evidence is admissible only upon a showing of
scientific validity employing the multifactor analysis developed in Brown, 

, and O’Key, 

.
The Supreme Court has not “precisely defined what makes
evidence ‘scientific,’ ” State v. Marrington, 

,

 (2003), and that uncertainty explains the problem presented when a proponent offers nonscientific expert
testimony that the opponent insists is scientific testimony.
The recent Henley decision summarized the characteristics
of scientific evidence this way:
   “Expert evidence is ‘scientific’ under OEC 702 when it is
   expressly presented to the jury as scientifically grounded,

   2
     OEC 702 provides:
        “If scientific, technical or other specialized knowledge will assist the trier
   of fact to understand the evidence or to determine a fact in issue, a witness
   qualified as an expert by knowledge, skill, experience, training or education
   may testify thereto in the form of an opinion or otherwise.”
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   as in Marrington. Expert evidence also is ‘scientific’ under
   OEC 702 when it ‘draws its convincing force from some
   principle of science,’ as in Brown, … or ‘implies a grounding in the methods and procedures of science’ and would
   likely be perceived by the jury as imbued with the ‘persuasive appeal of science,’ [as in] O’Key.”
Henley, 

 (internal citations omitted). After
Brown and O’Key, four cases illustrated the meaning of “scientific” evidence. Those cases are helpful.
         The decision in Marrington demonstrated that
the Brown/O’Key standard for scientific evidence reached
beyond “hard sciences” to include the behavioral sciences.
Marrington, 

. The court considered whether
a scientific foundation was required for the testimony of a
program manager from Family Friends, a service organization that interviewed and treated victims of child abuse.

. The witness had bachelor’s and master’s
degrees in psychology, was certified by the state as a counselor, had worked for the organization for 12 years, and was
current with the literature and research in child abuse.

. She testified that a child’s delay in reporting
sexual abuse is a predominant feature of abuse. 

.
More carefully, she said, “[D]elayed reporting is never used
to prove a molest but it holds up against the myths of what
an adult might expect.” 

.
         On review, the Supreme Court recognized “that
expert testimony concerning matters within the sphere of
the behavioral sciences possess the increased potential to
influence the trier of fact as scientific assertions, just as
expert testimony dealing with the ‘hard’ sciences does.”

. The court considered that the witness was licensed
by the state, professed to provide training for others about
sexual abuse, had interviewed 200 children, and referred to
research and literature in her testimony. 

. Absent
a scientific foundation, albeit one suitable for the behavioral
sciences, the testimony was found inadmissible. 

.
The judgment of conviction for first-degree sexual abuse
was reversed and remanded. 

.
        In State v. Perry, 

, 

 (2009),
the court affirmed a judgment on various crimes involving
264                                            State v. Bolton

sexual abuse of a child, upholding the admission of testimony about the phenomenon of a child’s delayed reporting
of sexual abuse. The state’s witness was the medical director of CARES Northwest, who held an M.D. and Ph.D. in
biometry. She testified that the medical profession recognizes a medical diagnosis of child sexual abuse; that there
are specialized journals and other peer reviewed literature
on child sexual abuse; but that the field cannot ethically conduct scientifically case-controlled research in child sexual
abuse, as in “the majority of medical processes.” 

.
The witness testified that delayed reporting was “common,”
was “well understood,” and was considered in a body of literature. 

. She cautioned that delayed reporting was
not affirmatively probative of whether sexual abuse actually occurred. 

. After laying a foundation, the state
offered the testimony as scientific evidence. 

.
         On review, the Supreme Court considered the particular Brown/O’Key factors that were made applicable by
the defendant’s objection and that were suited to behavioral
science. 

. Given the foundation provided, the
court concluded that the trial court did not err in admitting
the testimony. 

.
          A different result occurred in the recent Henley
decision, where, as here, the state did not offer such testimony as scientific evidence in the trial court. 

.
The defendant was convicted of first-degree sexual abuse
and attempted first-degree sodomy of his stepdaughter.

. The state offered the testimony of a forensic
examiner for Children at Risk Evaluation Services from
Boise, who had interviewed the victim. 

. The witness had a bachelor’s and a master’s degree in social work,
had received training in forensic interviewing, had 10 years’
experience, and had done over 600 forensic interviews.

. The state offered her testimony about a perpetrator’s behavior in “grooming” a victim to desensitize the
victim to familiarity, build trust, and weaken the child’s
defenses. 

. She opined that the defendant’s acts
of providing the stepdaughter massages of her neck and
chest could be considered grooming. 

. The prosecutor elicited that the witness was not a psychologist, and the
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prosecutor told the trial court that he was not asking for a
scientific opinion. Id. at 290-91.
         On review, the Supreme Court recognized that the
witness did not purport to establish that sexual grooming
had been studied by social scientists or that her observations
about grooming had been scientifically verified phenomena.
Id. at 300. The court noted that the prosecution had “disclaimed that he was asking her for a scientific opinion.” Id.
The state argued that the witness gave “limited testimony
that did not make any ‘scientific assertion’ to the jury.” Id. at
301.
        The state’s attempt to characterize the testimony as
nonscientific proved to be unavailing. The Supreme Court
rejoined:
   “[T]he fact that the proponent of expert evidence at trial
   disclaims that the evidence is scientifically grounded does
   not obviate the possibility that it nevertheless constitutes
   ‘scientific’ evidence under OEC 702.”
Id. The court determined that the witness was presented
as an expert in child sexual abuse. She had college degrees,
certification, specialized training in forensic interviewing,
and ten years’ experience with 600 children. She opined on
grooming as a predicate to sexual abuse and identified the
defendant’s massages as grooming behavior. Id. Although
the prosecutor did not highlight the scientific nature of her
testimony, nor focus on research, studies, or literature, the
court determined that “lay jurors likely would have accorded
the testimony the persuasive value of scientific principle.”
Id. at 303. The court concluded that the testimony about
grooming was scientific, lacked an appropriate foundation,
and was inadmissible. Id. at 304.
         Recently, in State v. Evensen, 

,

, rev den, 

 (2019), we determined to be
admissible a detective’s testimony about the comparative
suggestibility of children depending upon their age. The
detective had interviewed the 12-year-old victim. The detective testified about the victim’s account that the defendant
had touched her sexually. As background, the detective testified that she had five years’ experience in such cases and
266                                            State v. Bolton

she followed guidelines to limit suggestibility with children.
When asked the age range during which suggestibility was
concerning, the detective answered “[m]ostly in the three to
four age group” while with “the five and six year old range,
you see a little bit more of them correcting you if you say
something wrong ….” Id. at 311. The defendant objected
that the testimony lacked the scientific foundation required
by Brown/O’Key standards. Id. The objection was overruled.
Id. The detective explained that, in her training and experience, the interviews of three- and four-year-old children were
more “concerning than older kids” and that she would send
younger ones to be interviewed by a specialist. Id. at 311-12.

          On appeal, we noted that the detective did not mention familiarity with any literature or studies supporting her
views, id. at 312, and she did not purport to draw any scientific or research-based connection between her challenged
testimony and the conduct of the defendant or the victim,
id. at 316. We distinguished Henley and another recent case,
State v. Plueard, 

, 

, adh’d to as
modified on recons, 

, 

 (2019). In
those cases, the witnesses addressed grooming, which was
a concept or phenomenon that was not common knowledge
and that implied it was scientifically based. Evensen, 

. The detective in Evensen, however, did
not address any “ ‘phenomenon’ ” from studies of behavioral
science. 

 at 316 (quoting Henley, 

). She only
spoke from experience that interviews of older children are
less “concerning.” 

 We held the narrow testimony limited
to her background to be admissible. 

         Like Henley and Marrington, we conclude that
Downing’s testimony in this case was scientific evidence.
First, the state presented her as an expert in domestic violence
based on education and training. Her undergraduate work in
psychology and women’s studies was followed by “thousands
of hours of training,” including in “trauma informed services
for victims.” She is certified by the state as a victim services
specialist and has over 25 years of experience working with
thousands of victims. She teaches about domestic violence,
guest-lectures on the subject at colleges and universities, and
has trained over 30,000 people in the Northwest.
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          Second, Downing made small but unmistakable
reference to presumably professional sources of information
in the field of human behavior. She observed that “the most
dangerous time, we’ve found overall—and this is nationally—
is … when someone is leaving an abuser or has left.” Her
observation that “we” have observed a pattern “nationally”
alludes to a broader study of domestic violence beyond her
own experience. She made a similar allusion when saying
that “across the nation many programs” use the power and
control wheel to educate victims about common patterns in
domestic violence. In applying Henley, we have determined
that this sort of phrasing “evoke[s] … a kind of scientific
air” which implies a scientific basis because it “suggests the
existence of a recognized pattern of conduct that has been
determined to have particular significance.” Plueard, 

. With such references, Downing conveyed
to the jury an expertise that was grounded in behavioral
science.
         Third, Downing was asked to describe a phenomenon or concept of “counterintuitive victim behavior.” Like
grooming in Henley or Plueard, it was presented as a phenomenon or concept that “was not common knowledge.”
Henley, 

. Downing testified that the general
public is often “shocked” to learn of many of the behaviors
that she identified. As such, the phenomenon of “counterintuitive victim behavior” implied a basis in behavioral science. See 

.
        Finally, the authority that Downing conveyed was
manifested in the breadth of the opinions that she offered
on matters of human behavior beyond common understanding. Her opinions described a variety of counterintuitive victim behaviors. Those opinions were not, as in Marrington,
limited to just the single phenomenon of delayed reporting,
but spanned the range of counterintuitive victim behaviors
from denial of abuse to return to the abuser.
          Although the state tried to present Downing’s testimony at trial as “narrowed,” or as founded on her experience
rather than in behavioral science, the state’s characterization of the testimony is not determinative. The same attempt
failed in Henley when a narrower opinion was offered. As
268                                                State v. Bolton

previously noted, to disclaim “that the evidence is scientifically grounded does not obviate the possibility that it nevertheless constitutes ‘scientific’ evidence under OEC 702.”
Henley, 

.
          We conclude that Downing’s testimony about counterintuitive victim behavior was “scientific” evidence within
the meaning of OEC 702. As a result, the trial court erred
in permitting the testimony as purportedly expert nonscientific testimony in the absence of an appropriate scientific foundation suitable to behavioral science. See generally
Perry, 

 (discussing an appropriate foundation for behavioral science).
         In its cross-assignment of error, the state contends
that, even if Downing’s testimony was scientific testimony,
the trial court erred in ruling that the evidence was insufficient to provide a foundation for scientific testimony. The
state invites us to determine, based on Downing’s experience and the secondary literature that the state cites in its
brief, that Downing’s testimony should be admissible under
the multifactor test of Brown and O’Key. See State v. Branch,

, 

, rev den, 

 (2011)
(explaining that, in determining whether evidence is scientifically valid, we may consider scientific literature both
outside of the record and presented for the first time on
appeal).
         As an initial matter, we decline the state’s invitation to supplement the record with scholarly writings referenced in the state’s brief. The Supreme Court declined the
same invitation in Henley. In that case, the state requested
judicial notice and asked that the court determine that the
concept of sexual grooming possesses a level of scientific
validity sufficient to be admissible under OEC 702. 

. The state cited articles and other research materials, including those in the defendant’s own briefing. 

. The Supreme Court declined. It explained:
       “To decide the matter of scientific validity and reliability for the first time on review, we would be required to
   decide based on judicial notice of legislative facts—that is,
   nonadjudicative facts—used to determine the foundational
   basis for admission of evidence.”
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 The court declined to do so because the parties had
not been given a full opportunity to adduce the evidence
before the trial court, and because the court was uncertain
whether it had been advised of the full scope and nature of
the research on sexual grooming of children. 

 The court
would not determine on appeal what should have been determined in the trial court in the first instance.

         Similarly, we decline to supplement the record with
new material offered on appeal. That is particularly so due
to the way in which the state chose to present Downing’s
testimony at the outset. In the pretrial hearing, defendant’s initial objection was that notice had been too short
and time too short to have prepared to address testimony
if the state offered it as scientific testimony under the
Brown/O’Key standards. The state responded by characterizing Downing’s testimony as nonscientific testimony.
Given that approach, the parties became concerned with
whether Downing’s testimony was expert, not whether it
was scientifically valid. It is doubtful that defendant had
an opportunity to adduce evidence contrary to a scientific
foundation for Downing’s testimony—particularly when the
state disclaimed the evidence was scientific. Although the
state hedged, saying that it could argue that the testimony
was valid under Brown/O’Key standards, the state offered
the testimony as nonscientific testimony. Because the state
took that position, the parties did not directly address
Brown/O’Key standards, and defendant was not on notice
of a need to address those standards. See Perry, 

 (reviewing standards in light of objections raised).
The record was not developed below to fairly present a question whether the testimony could have a valid scientific
foundation.

         Moreover, we are unsure, as was the court in Henley,
whether the secondary references offered in the state’s brief
serve to fully advise us of the scope of research into the various behavior of domestic violence victims. During her pretrial testimony, Downing allowed that research has shown
that all victims are different and that it is a myth that one
can reliably predict how a victim will react in any given
situation.
270                                             State v. Bolton

          Unlike Marrington, Perry, or Henley, the trial court
here did indicate, albeit somewhat incidentally, that the
record did not suffice to support Downing’s testimony as scientific evidence. The state contends that Downing’s 25 years’
experience with thousands of victims of domestic violence
should suffice to permit her to provide scientific testimony
about victims’ counterintuitive behavior. Defendant responds
that the state addresses one factor among the Brown/O’Key
standards—the expert’s education and training—but little
else. See Brown, 

 (qualifications as one of seven
factors); see also O’Key, 

 (listing four additional factors). Defendant has the better argument.
         Because the state presented Downing’s testimony in
the trial court as nonscientific, the state did little or nothing
to provide a scientific foundation for Downing’s opinions on
counterintuitive victim behavior. The record is quite unlike
the foundation laid in Perry where the doctor’s narrow opinion about delayed reporting was couched in terms of specialized training, professional journals, and peer-reviewed literature. 

. The record here does not address
general acceptance in the field of Downing’s opinions on the
patterns of behavior for abusers and victims, the existence
of specialized literature in the field, the extent to which her
opinions rely on subjective interpretations, the variation
or consistency of opinions on the characteristic behavior
of abusers and victims, or the general acceptance of those
views in the professional literature in the field. See Brown,

 (factors); O’Key, 

 (factors);
see also State v. Southard, 

, 

(2009) (not all factors will apply). In short, the trial court
did not err in determining that Downing’s testimony would
not be admissible as scientific evidence based on the limited
foundation provided.
        As in Henley, 

, and in Marrington, 

, the error in admitting Downing’s testimony as
nonscientific was not harmless. The judgment of conviction
must be reversed and remanded.
         Reversed and remanded.