State v. Henley

                                       813

          Argued and submitted January 29, affirmed April 21, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     ROBERT LEWIS HENLEY,
                         aka Sonny Henley,
                        Defendant-Appellant.
                    Malheur County Circuit Court
                        09072338C; A170383
                                   

    Defendant was convicted of first-degree sexual abuse, ORS 163.427, and
attempted first-degree sodomy, ORS 163.405, for acts committed against his
11-year-old stepdaughter. On review, the Supreme Court held that a forensic
interviewer’s testimony regarding “grooming” of children for sexual abuse constituted scientific evidence under OEC 702, such that the trial court erred in
not requiring the state to establish a scientific foundation for the evidence. On
remand, the trial court determined that the evidence had a sufficient scientific
foundation to be admissible under OEC 702, and it reentered defendant’s convictions. Defendant appeals, challenging the admission of the grooming testimony
under OEC 401 (relevance), OEC 403 (unfair prejudice), and OEC 702 (scientific
validity). Held: Given the procedural history of this case, the trial court did not
err in limiting the remand proceeding to addressing the scientific validity of the
grooming evidence to determine its admissibility under OEC 702. Nor did the
trial court err in determining that the state had proved its scientific validity.
    Affirmed.



    Gregory L. Baxter, Judge.
   Mary M. Reese, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jordan R. Silk, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    AOYAGI, J.
    Affirmed.
814                                              State v. Henley

         AOYAGI, J.
         This case is before us for the second time. Defendant
was convicted of first-degree sexual abuse and attempted
first-degree sodomy. The victim was his 11-year-old stepdaughter. On review of the first judgment of conviction, the
Supreme Court held that a forensic interviewer’s testimony
regarding “grooming” of children for sexual abuse constituted scientific evidence under OEC 702, such that the state
was required to establish a scientific foundation for it. State
v. Henley, 

, 

 (2018). Because
the trial court had viewed the testimony as nonscientific, it
failed to “determine whether sexual grooming evidence possesses the requisite level of scientific validity and reliability
for admissibility under OEC 702.” 

. The Supreme
Court declined to decide that issue in the first instance, as
the trial court was “best suited for the development of the
evidentiary record concerning admissibility.” 

.
The matter was therefore remanded to the trial court for
further proceedings. 

.
         On remand, the trial court held a Brown/O’Key
hearing. See State v. O’Key, 

, 

 (1995);
State v. Brown, 

, 

 (1984). Based on
the evidence admitted at that hearing, the trial court concluded that the concept of grooming to which the witness
testified had “a sufficient level of scientific validity to qualify
for admission at trial,” such that it was properly admissible
under OEC 702. Accordingly, the court reentered defendant’s
convictions for first-degree sexual abuse and attempted
first-degree sodomy. Defendant appeals, again challenging
the admission of the grooming testimony. For the following
reasons, we affirm.
                     SCOPE OF APPEAL
        We must first address the scope of this second
appeal. In his first appeal to us, defendant challenged the
admission of the grooming testimony on multiple grounds.
He argued that the trial court erred in admitting it because
the witness was not qualified to testify about grooming,
because the state had failed to lay a scientific foundation
under OEC 702, because the testimony was not relevant
under OEC 401, and because the testimony was unduly
Cite as 

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prejudicial under OEC 403. State v. Henley, 

, 

 (2016), rev’d, 

, 

(2018); see also State v. Southard, 

, 

 (2009) (recognizing that, to be admissible, scientific evidence must be relevant (OEC 401), it must possess sufficient
indicia of scientific validity (OEC 702), and its probative
value must not be substantially outweighed by any unfairly
prejudicial effect (OEC 403)). We rejected each of those challenges, either on the merits or as unpreserved. Henley, 

.
          Defendant sought Supreme Court review only on
the OEC 702 issue. The question presented to the Supreme
Court was whether the admitted testimony about grooming
“constitute[d] scientific evidence and so require[d] a foundational showing under OEC 702.”1 That was the only issue
that the court considered. See Henley, 

 (“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.”). The court ultimately
agreed with defendant that the testimony was scientific in
nature and therefore required a scientific foundation under
OEC 702. 

. It reversed and remanded for the trial
court to determine, after appropriate development of the
record, whether the testimony possessed the requisite level
of scientific validity for admissibility under OEC 702. 

.
        Consistent with the foregoing sequence of events,
on remand, the trial court held a Brown/O’Key hearing to
determine whether the grooming testimony admitted over
defendant’s objection was scientifically valid. Relying on evidence offered by the state, the trial court ruled that it was,
concluding that “the concept of grooming possesses a sufficient minimum level of scientific validity to be admissible

     1
       In his petition for review, defendant posed a second question that put a
constitutional gloss on the OEC 702 issue—whether the admission of scientific evidence without adequate testing of its validity violates due process—
but he did not pursue the due-process angle in his Supreme Court merits
briefing.
816                                                        State v. Henley

as scientific evidence under OEC 702.” The court then reentered defendant’s convictions.
         On appeal from the resulting judgment, defendant
contends that the trial court erred in its OEC 702 ruling,
an issue that we address shortly. However, that is not all.
Defendant also seeks to revisit other challenges to the
admission of the grooming testimony that we considered
and rejected in his first appeal. Specifically, he argues that
the testimony should have been excluded as lacking relevance under OEC 401 and as substantially more unfairly
prejudicial than probative under OEC 403. We reject those
arguments. In the first appeal, we already rejected defendant’s claims of error regarding OEC 401 and OEC 403 as
unpreserved, and the Supreme Court did not grant review on
those issues, address them in its opinion, or include them in
the scope of the remand. Had the trial court ruled correctly
on defendant’s trial objection in the first instance (back
in 2009), its ruling would have been limited to OEC 702,
because that was the objection made. If defendant believed
that we erred in the first appeal in ruling that his claims
of error under OEC 401 or OEC 403 were unpreserved, or
if defendant believed that something about the particular posture of this case merited allowing him to raise new
OEC 401 or OEC 403 issues on remand despite not having
raised them in the original trial, then he should have raised
those matters in the Supreme Court. He did not. Under the
circumstances, we cannot say that the trial court erred in
limiting the remand proceedings to OEC 702.2 We similarly
limit our consideration to the OEC 702 ruling.

                                  MERITS

         Having determined the scope of this appeal, we
turn to the merits. Defendant argues that the state failed to
establish the scientific validity of the concept of grooming to
which the witness testified and that the trial court therefore
     2
       At the Brown/O’Key hearing, the state maintained that the only issue
before the trial court on remand was the grooming evidence’s scientific validity
under OEC 702, whereas defendant argued that the Supreme Court’s opinion
left open the possibility of revisiting the OEC 401 and OEC 403 issues. The trial
court implicitly agreed with the state regarding the scope of the remand, ruling
only on the OEC 702 issue.
Cite as 

 (2021)                               817

erred in ruling that the testimony was admissible under
OEC 702. We review the admissibility of scientific evidence
for errors of law. State v. Branch, 

, 

, rev den, 

 (2011).

          Evidence perceived by jurors to be scientific “possesses an unusually high degree of persuasive power.”
O’Key, 

. The trial court’s role is to ensure
that the persuasive appeal of such evidence is legitimate.

 Toward that end, when evidence is scientific in nature,
the court must determine that the evidence is scientifically
valid before admitting it. See 

. In conducting that
analysis, the court is to keep in mind the purpose for which
the evidence is offered. State v. Perry, 

, 

 (2009); O’Key, 

. Additionally, the
focus of the inquiry must be on principles and methodology,
not conclusions. 

. Weaknesses in a given scientific
study or errors in an expert’s analysis do not render scientific evidence invalid; that is, they go to the weight of the
evidence, not whether the factfinder should be allowed to
hear it in the first place. Thoens v. Safeco Ins. Co. of Oregon,

, 

 (2015).

          The Supreme Court has identified various nonexclusive factors that may be relevant when assessing the scientific validity of evidence under OEC 702. In Brown, the court
identified seven primary 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. 

 & n 5. Then, in O’Key, the court
adopted four additional factors from Daubert v. Merrell Dow
Pharmaceuticals, 

, 

, 

 (1993)—the leading federal case on the validity of scientific evidence—some of which overlap with the Brown factors: (1) whether the theory or technique in question can be
and has been tested; (2) whether the theory or technique has
been subject to peer review and publication; (3) the known
or potential rate of error and the existence of operational
standards controlling the technique’s operation; and (4) the
818                                           State v. Henley

degree of acceptance in the relevant scientific community.
O’Key, 

.

          The Brown/O’Key factors are nonexclusive, not
every factor needs to be considered in every case, and no
single factor is decisive. See Southard, 

; Brown,

 & n 5. Ultimately, determining whether evidence is scientifically valid for purposes of OEC 702 is a
flexible process aimed at ascertaining the scientific validity of the principles underlying the evidence. O’Key, 

. The Supreme Court has demonstrated that flexibility when faced with scientific evidence as to which of the
Brown/O’Key factors do not naturally fit. For example, in
Perry, 

, the court addressed scientific
evidence about the phenomenon of “delayed reporting” of
child sexual abuse, relying on only the few factors that it
considered germane to conclude that the evidence was scientifically valid. In Marcum v. Adventist Health System/West,

, 

 (2008), the court declined
to use the Brown/O’Key factors at all, explaining that they
were not useful in evaluating the scientific basis for medical
causation testimony, which differed in nature from a particular technique or method.

         Turning to the facts of this case, during defendant’s
criminal trial, the state called Palfreyman, a forensic interviewer for CARES (Child at Risk Evaluation Services), to
testify about her interview of the victim. During that testimony, the prosecutor asked Palfreyman if she had training regarding a concept called grooming, and she said yes.
Defendant objected to Palfreyman’s qualifications to testify about grooming and also objected to a lack of scientific
validity. Outside the jury’s presence, the prosecutor told the
court that he expected Palfreyman to testify that she had
learned through her training and experience to recognize
certain behaviors that could be considered grooming; to
give examples of those behaviors, such as buying things for
a child, treating a child differently, or touching a child in a
way that is not necessarily sexual to accustom the child to
being touched; and to identify anything from her interview
of the victim that might be considered grooming. Based on
that description, the court overruled defendant’s objection,
Cite as 

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reasoning that the evidence was not scientific in nature and
did not require a scientific foundation.3
         Palfreyman proceeded to testify that activities that
might be considered grooming would include spending time
together, allowing a child to do things the child’s parents do
not allow (such as play video games or use alcohol), giving a
child money, tickling, and massaging. She said that grooming is done to build trust and weaken a child’s defenses. She
pointed to defendant’s massaging the victim down into her
chest area when she wanted a neck massage as something
that the victim had mentioned in her interview that could
be considered grooming. On cross-examination, Palfreyman
agreed that spending time with a child, reading to a child,
or taking a child for ice cream is not necessarily grooming,
stating, “It depends on your motives.” She testified that, if
the person is an outsider whose motive is to get into the
child’s circle of trust, “then that could be potential grooming.” Palfreyman concluded her testimony about grooming
by confirming that whether any given behavior is grooming
is a matter of the person’s intent and that she had never
talked to defendant about his intent.
          As previously discussed, on review, the Supreme
Court held that Palfreyman’s testimony was scientific in
nature and therefore required a scientific foundation to be
admissible under OEC 702. On remand, the state relied on
seven academic papers to establish the scientific validity of
the concept of grooming to which Palfreyman testified. Our
task on appeal is to determine whether the trial court erred
in ruling that that evidence sufficiently established a scientific foundation for the testimony.
        Preliminarily, we disagree with defendant that,
when the Supreme Court remanded to the trial court to
assess the scientific validity of the concept of grooming to
which Palfreyman testified—rather than deciding that issue

     3
       Because of the procedural history of this case, the trial court did not recognize the scientific nature of Palfreyman’s testimony and assess its scientific
foundation until long after trial. However, as we understand it, fundamentally,
the trial court’s task on remand was to reconsider its ruling on defendant’s OEC
702 objection. Therefore, we consider the ruling in the context that it would have
been made at trial, had the trial court correctly recognized the evidence as scientific in nature.
820                                             State v. Henley

itself in the first instance—the court was implying that the
academic papers cited in the parties’ Supreme Court briefing were inadequate as a matter of law to establish scientific validity. It is true that the Supreme Court declined the
state’s suggestion to take judicial notice of those papers and
use them to affirm on the alternative basis that Palfreyman’s
testimony had a scientific foundation. Henley, 

. The court did so, however, because the parties
had “not been given a full opportunity to adduce evidence”
regarding scientific foundation and, relatedly, because the
court was “uncertain” about the completeness of the record.

. We do not read those statements to suggest that
the Supreme Court viewed the cited papers as inadequate
to establish scientific validity. We understand the court to
have remanded based on process concerns, irrespective of
the merits. Further, the fact that the parties eschewed the
opportunity to develop a fuller record on remand—the state
offered into evidence the same papers that it had discussed
in the Supreme Court, and defendant offered no evidence—
is neither here nor there. The point of the remand was to
give both parties a full opportunity to develop the record on
scientific validity. The parties did what they did with that
opportunity, and we must now review the trial court’s OEC
702 ruling on the record that was made.
          In doing so, our task is somewhat complicated by
the fact that the record is silent as to the specific purpose for
which the trial court admitted the grooming evidence. Both
parties acknowledge that the purpose for which evidence is
offered is relevant in evaluating its scientific validity. Perry,

 (“Before applying the multifactor test to the
evidence in question, it is important to restate the purpose
for which the scientific evidence was offered.”). That is, the
trial court necessarily evaluates whether the evidence is scientifically valid for the purpose for which it is offered, not all
possible purposes. O’Key, 

 (“Simply put, the
scientific evidence must be pertinent to the issue to which
it is directed. ‘Scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.’ ”
(Quoting Daubert, 

 (brackets in O’Key omitted).)). At trial, however, defendant never objected to the relevance of the grooming evidence—only to scientific validity
Cite as 

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and to Palfreyman’s qualifications—nor did he make an OEC
403 objection that would have forced discussion of the evidence’s probative value. And, because the trial court viewed
the evidence as nonscientific, it did not conduct an OEC 702
analysis at the time of admission. Due to that combination
of circumstances, the state was never put in the position of
having to articulate the specific purpose for which it was
offering the grooming testimony, and, relatedly, the trial
court never expressly stated the purpose for which it was
allowing it. The only specific comment that the court made
was that Palfreyman could not testify that, in interviewing
the victim, she saw signs of grooming and therefore diagnosed the victim as having been sexually abused.

         Defendant conflates Palfreyman’s testimony—which
is what the trial court allowed over defendant’s OEC 702
objection—with the prosecutor’s closing argument—to which
the defendant did not object. As described by the Supreme
Court, the prosecutor made improper use of Palfreyman’s
testimony in closing, such that any error in admitting the
testimony was not harmless. Henley, 

.
However, we decline defendant’s invitation to retroactively
extrapolate from the prosecutor’s closing remarks the purpose for which the trial court admitted the evidence much
earlier in the trial when defendant objected. Whereas the
harmlessness of any error in admitting the grooming testimony requires a review of the entire record, determining
whether the trial court erred in overruling an objection must
be evaluated at the time that the objection was made. State
v. Prieto-Rubio, 

, 

 (2014),
aff’d, 

, 

 (2016).

        The trial court cautioned as part of its OEC 702
ruling that Palfreyman could not diagnose the victim as
having been groomed and therefore sexually abused. And,
shortly after that ruling was made, Palfreyman herself
acknowledged that behavior identified as possible grooming is meaningless without knowing the person’s intent.
Although the prosecutor later relied on improper logic in
using Palfreyman’s testimony in closing, see Henley, 

, it is hardly unprecedented for a party to use evidence in closing for a purpose other than that for which it
822                                           State v. Henley

was permissibly admitted. See Perry, 

 (a defendant is responsible to object if the state uses evidence in
a manner that exceeds the scope for which the trial court
could permissibly admit it).
          Here, on the record that exists, it is reasonable to
infer that the trial court admitted Palfreyman’s testimony
about the general concept of grooming only to explain the
potential significance of some of defendant’s behavior—
cf. State v. Etzel, 

, 

 (2021);
State v. Swinney, 

, 

,
rev den, 

 (2015)—not to establish that defendant
had groomed the victim and therefore had sexually abused
her. That is consistent with what the trial court said when
ruling and with how Palfreyman testified immediately after
the court’s ruling, even though the prosecutor later cited the
evidence for an improper purpose in closing. It is also consistent with how we described the admission of the evidence
in the first appeal in connection with discussing defendant’s
challenge to Palfreyman’s qualifications. See Henley, 

 (stating that her “testimony about grooming
was helpful to assist the jury in understanding defendant’s
behavior leading up to the camping trip”).
         With that in mind, we consider whether the evidence admitted at the Brown/O’Key hearing on remand—
consisting of seven academic papers—adequately established the scientific validity of the general concept of grooming to which Palfreyman testified.
         Per his reply brief, defendant “does not contest”
that “the behavioral science concept of grooming by offenders, including ‘boundary testing,’ is well established,” nor
does he contest “that the methodology used to identify that
behavior—mostly interviewing—is a valid scientific technique.” His argument on appeal rests, instead, on the premise that the trial court admitted Palfreyman’s testimony for
forensic purposes and that that use of grooming evidence is
not scientifically valid.
         We absolutely agree with defendant that the record
created at the Brown/O’Key hearing would not establish the
scientific validity of using the concept of grooming as forensic evidence, e.g., to prove that someone engaged in sexual
Cite as 

 (2021)                              823

abuse because they engaged in grooming-consistent behaviors. That is, if the trial court had admitted Palfreyman’s testimony for the purpose of showing that defendant engaged
in behaviors that could be grooming and therefore sexually
abused the victim, we would conclude that the state failed
to establish scientific validity. But, as already explained, we
do not understand the trial court to have admitted the testimony for that purpose.
          For the purpose for which we understand the testimony to have been admitted, we conclude that the trial
court did not err in ruling that the general concept of
grooming to which Palfreyman testified is scientifically
valid. The lack of expert testimony and the relatively small
record made at the Brown/O’Key hearing make it a closer
question than it might otherwise be. Cf. Perry, 

 (relying on expert testimony in evaluating the scientific validity of evidence about delayed reporting of child sexual abuse). We also note that the state relies heavily on case
studies, but that is essentially unavoidable in this context.
See 

 at 113-14 & n 3 (recognizing descriptive case-study
methodology employed in researching the phenomenon of
delayed reporting of child sexual abuse and noting that controlled studies in the field of child sexual abuse research
would flagrantly violate medical ethics).
          As in Perry and Marcum, the Brown/O’Key factors
are not a great fit for the type of evidence at issue here,
requiring a more flexible approach. The factors that we do
consider relevant are similar to those on which the court
relied in Perry, 

-26: general acceptance in the
field, the existence of specialized literature, and indicia that
Palfreyman’s approach was not unduly novel or improperly
subjective. Ultimately, however, we hark back to the “fundamental question of the scientific validity of the general propositions utilized by the expert,” which is what underlies the
various considerations and factors described in Brown and
O’Key. Marcum, 

. Doing so, we agree with the
state that the seven academic papers admitted at the Brown/
O’Key hearing sufficiently established the scientific validity
of the general concept of grooming to which Palfreyman
testified. That is, the state adequately established that
Palfreyman’s testimony was not grounded in “bad science”
824                                             State v. Henley

of the sort that requires exclusion under OEC 702. 

(stating that, in performing the “vital role of gatekeeper”
under OEC 702, the trial court is to screen “proffered scientific testimony to determine whether it is sufficiently valid,
as a matter of science, to legitimately assist the trier of fact,”
and the court is to exclude “bad science” that would be confusing, misleading, erroneous, prejudicial, or useless (internal quotation marks omitted)).
        In sum, the trial court did not err in ruling that
Palfreyman’s grooming testimony had a sufficient scientific
foundation to be admissible under OEC 702 and, therefore,
reentering defendant’s convictions.
         Affirmed.