State v. Williams

                                      594

   Argued and submitted January 29, 2021; convictions on Counts 12, 13, and
   19 reversed and remanded, remanded for resentencing, otherwise affirmed
    September 8; petition for review denied December 29, 2022 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                        ROY JAY WILLIAMS,
                         Defendant-Appellant.
                      Lane County Circuit Court
                         17CR80163; A169948
                                  

     Defendant was convicted of 16 sex crimes against two children, specifically
11 counts of first-degree sexual abuse, two counts of first-degree unlawful sexual
penetration, two counts of first-degree sodomy, and one count of second-degree
unlawful sexual penetration. Three of the jury’s guilty verdicts were nonunanimous, while the remainder were unanimous. Defendant argues that the trial
court erred by instructing the jury that it could return nonunanimous guilty
verdicts and then by accepting the jury’s verdicts. He also argues that the trial
court erred by admitting certain expert testimony regarding “grooming” of children for sexual abuse, asserting that the evidence was irrelevant under OEC
401, that it did not possess sufficient indicia of scientific validity and was not
helpful to the jury under OEC 702, and that its prejudicial effect outweighed
its probative value under OEC 403. Held: Under the Sixth Amendment, it was
error for the trial court to instruct the jury that it could find defendant guilty
by nonunanimous verdict, requiring reversal of the three convictions that were
based on nonunanimous verdicts. As for the “grooming” evidence, the trial court
did not err in admitting the expert testimony. For the purpose for which the testimony was admitted—providing a possible alternate explanation for the victims’
delayed disclosure and for their continuing to spend time with defendant after he
abused them—it was relevant, helpful, and not more prejudicial than probative.
    Convictions on Counts 12, 13, and 19 reversed and remanded; remanded for
resentencing; otherwise affirmed.



   Suzanne B. Chanti, 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.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2022)                           595

  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
   AOYAGI, J.
  Convictions on Counts 12, 13, and 19 reversed and remanded;
remanded for resentencing; otherwise affirmed.
596                                                    State v. Williams

          AOYAGI, J.
         Defendant was convicted of 16 sex crimes against
two children, specifically 11 counts of first-degree sexual
abuse, ORS 163.427; two counts of first-degree unlawful
sexual penetration, ORS 163.411; two counts of first-degree
sodomy, ORS 163.405; and one count of second-degree unlawful sexual penetration, ORS 163.408. Three of the jury’s
guilty verdicts were nonunanimous, while the remainder
were unanimous. On appeal, defendant raises two issues.
First, he claims that the trial court erred by admitting
certain expert testimony regarding “grooming” of children
for sexual abuse. Second, he claims that the trial court
erred by instructing the jury that it could return nonunanimous guilty verdicts and then by accepting the jury’s
verdicts.
         We summarily address the second issue. As the
state concedes, given post-trial changes in the law, it was
error for the trial court to instruct the jury that it could find
defendant guilty by nonunanimous verdict. See Ramos v.
Louisiana, 

, 

, 

 (2020) (holding that, under the Sixth Amendment,
a criminal defendant may be convicted of a serious offense
only by unanimous verdict). Defendant is therefore entitled to a new trial on Counts 12, 13, and 19—the counts on
which the jury returned nonunanimous verdicts—and we
reverse and remand his convictions on those counts.1 The
instructional error was harmless, however, as to the counts
on which the verdicts were unanimous. State v. Kincheloe,

, 

 (2020), cert den, ___ US
___, 

 (2021). We therefore reject defendant’s
Sixth Amendment argument as to the unanimous-verdict
counts.
         That leaves the first issue—the admission of
“grooming” testimony—which is the subject of the remainder of this opinion. We begin with a brief summary of the historical facts. We then provide a somewhat detailed description of the procedural facts, because, as we explain later,
   1
     Due to changes in the count numbering over time, which both parties
acknowledge, we use the count numbering from the judgment on appeal, i.e., the
Amended Judgment entered on February 1, 2019.
Cite as 

 (2022)                            597

defendant’s claim of evidentiary error presents questions
for which the answers are highly context specific. Finally,
we analyze the legal issue presented, ultimately concluding
that the court did not err in admitting the testimony.
        Accordingly, we reverse and remand on Counts 12,
13, and 19, and we otherwise affirm.
                 I. HISTORICAL FACTS
         Defendant, his wife, and his wife’s three children
lived across the street from S and her family. The two families were friendly. In 2012, when S was 10 years old, defendant broke his pelvis in an ATV accident. S spent a lot of
time with defendant while he recuperated. S sometimes
brought her cousin J with her.
         In early 2014, a neighbor contacted the Department
of Human Services (DHS) after she saw S lying on top of
defendant on his couch. During the DHS investigation,
both defendant and S admitted that they were close, and
S acknowledged that she texted defendant, that defendant
confided in her about his poor relationship with his wife, and
that defendant’s wife had told S not to spend so much time
with defendant. It is unclear whether DHS asked defendant
or S directly about sexual abuse, but, in any event, there is
no indication that either revealed any sexual abuse. DHS
told S’s parents to keep their children away from defendant.
Defendant’s wife and stepchildren moved away almost immediately, and defendant moved away about a month later.
        A few years later, toward the end of 2016, J told her
parents that defendant had sexually abused her and that S
had been present. That led to a police investigation, during
which J was interviewed by a forensic interviewer, Nichole
Satterwhite. S initially refused to be interviewed but was
eventually interviewed by Satterwhite as well. During that
interview, S described various incidents of sexual abuse by
defendant.
                II. PROCEDURAL FACTS
        In late 2017, defendant was indicted for alleged
crimes against S and J.
598                                         State v. Williams

A.    Pretrial Motions in limine

          Before trial, defendant filed a motion in limine to
prevent the state from making any reference to “grooming”
behavior without satisfying the foundational requirements
for scientific evidence, citing the Supreme Court’s thenrecent decision in State v. Henley, 

, 

(2018), in which the court held that a forensic interviewer’s
testimony about grooming required a scientific foundation.
The state acknowledged in its response that it intended to
call Satterwhite to testify “regarding delayed disclosure
and related factors” and that her testimony “may cover
‘grooming’ behavior.” Defendant then filed a second motion
in limine, asking specifically that the court exclude “scientific evidence, expert testimony, and other opinion testimony of Nichole Satterwhite, a child forensic interviewer,
or other witnesses as to which the State fails to lay an adequate foundation.” Defendant argued that expert testimony
on grooming “cannot withstand the special scrutiny that
Oregon law applies to scientific evidence.” He further argued
that Satterwhite was unqualified to testify on grooming, as
she was “not credentialed nor regarded within any relevant
scientific community as an expert on behavioral science”
and was “not qualified to explain the (nonexistent) scientific technique and methodology for detecting and measuring grooming in sex abuse cases.” (Emphases in defendant’s
motion.) Finally, defendant argued that any probative value
was outweighed by the danger of unfair prejudice.

         The court held a pretrial hearing on defendant’s
motions, during which the substance of Satterwhite’s anticipated testimony became clearer. Describing “grooming” as
“too generic of a term,” the state explained that it viewed
grooming as “one piece of this greater body of research and
relevant testimony, which is child disclosures and recantations and delayed disclosures.” The state then explained
that it intended to have Satterwhite testify regarding the
dynamics of disclosure of abuse and manipulation by the
abuser, which the state viewed as relevant to rebut defendant’s anticipated attack on the girls’ credibility, to explain
the complicated process of disclosure of abuse, and to contextualize the girls’ testimony regarding defendant’s actions.
Cite as 

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         Satterwhite testified at length at the pretrial hearing, including describing her understanding of controlled
studies on forensic interviewing of children and the process
of disclosure. The state also offered multiple academic papers
into evidence, to lay a scientific foundation for Satterwhite’s
testimony. On cross-examination, defendant questioned
Satterwhite regarding her lack of training as a scientist.
         Defendant’s own expert—Dr. Reisberg, a psychology professor—also testified at the pretrial hearing. Among
other things, Reisberg testified that, with respect to “something that we might want to call grooming,” “in the vast
majority of cases we can only identify those behaviors in
hindsight,” making it difficult to “define grooming in most
cases without confirming the intent,” such that “scientific
inquiry is stymied right at the start.” The state made an
objection during Reisberg’s testimony that prompted the
court to ask defense counsel to clarify the precise nature
of defendant’s challenge to Satterwhite’s testimony. The following colloquy occurred:
       “THE COURT: … I’m just trying to figure out if—so
   you’re challenging—you’re saying two things. One is this
   idea of grooming or manipulation of child sex abuse victims
   is not scientifically based in any way.
      “[DEFENSE COUNSEL]:          No. I’m not saying that.
      “THE COURT: Okay.
      “[DEFENSE COUNSEL]: I think—I think our witness would disagree with that proposition.
     “THE COURT: All right. So what are you saying?
   Where are you going?
      “[DEFENSE COUNSEL]: I’m saying that there’s not
   enough science here to reach a conclusion that would allow
   predictability or any sort of reliance on the fact that it—
   that because this behavior happened, it has any sort of relevance to whether or not the person did the thing.
      “THE COURT: All right. And that’s why I was originally talking about it depends on the purpose that this
   information is being used for. If it’s not being used for the
   purpose of showing here’s the behavior, ergo, abuser, and it’s
600                                             State v. Williams

   being used for some other purpose, is that a different analysis
   in your mind?
      “[DEFENSE COUNSEL: I can’t imagine another purpose that we would—that would be relevant and have any
   probative value, certainly—
      “THE COURT: Okay.
      “[DEFENSE COUNSEL]:           —to the factfinder.”
(Emphases added.)
         Later, defense counsel asked Reisberg, “[I]f you, as
a scientist, were asked to rely on or make predictions based
upon the studies that have been made available to you,
would you feel confident in doing that?” Reisberg responded
that it “[d]epends on what conclusion you’re asking me to
draw.” He then clarified that the “main issue” with relying
on evidence about grooming in court is the circularity problem that he had identified earlier. That is, “you say, look,
there was grooming that led up to it. But then you reverse
direction and say, how do you know there was grooming?
Answer, because there was abuse. As a matter—as a logical matter, that’s worthless. As a scientific matter, that’s
worthless.”
        Toward the end of the hearing, the court again
sought to focus the parties on the specific purposes for which
Satterwhite’s testimony was being offered, noting that
defendant’s own expert (Reisberg) had acknowledged that
“there can be scientific studies that are valid for one purpose, but not valid for another purpose.” The court took the
matter under advisement. It indicated that it might issue a
conditional ruling based on the purposes for which the evidence was being offered.
         The court issued a detailed and thoughtful letter
opinion that carefully tracked the parties’ arguments and
the issues presented at the hearing. The court ruled that
Satterwhite was qualified to testify regarding the victim
disclosure process and regarding commonly recognized
offender manipulation strategies designed to further abuse.
It described her as a highly qualified forensic interviewer
with a wealth of experience and education relating to the
sexual abuse of children and the effect of the victim-abuser
Cite as 

 (2022)                               601

relationship on disclosure of abuse, and it rejected defendant’s suggestion that she was unqualified to testify because
she lacked a background in scientific research.
          As for scientific reliability, the court concluded that
the state had proved the existence of “a body of extensive
specialized literature concerning the process of disclosure of child sex abuse as well as the strategies commonly
employed by abusers to further abuse.” It explained that
both phenomena—the process of disclosure of sexual abuse,
and the strategies for manipulation of victims—were “well
understood and widely accepted by those researching issues
concerning child sexual abuse and by those working with
abused children[,] including state and national organizations that promulgate evidence-based practices for centers
investigating allegations of abuse.” The court noted that
defendant’s expert witness did not disagree with that point
but was concerned with the lack of “predictive certainty”
as well as the lack of controlled studies to determine what
percentage of people who engage in potential “grooming”
behaviors are actually engaged in grooming—which the
court understood to be the crux of defendant’s argument for
exclusion. The court observed that whether certainty or controlled studies are required for admissibility is a case-bycase inquiry, because “[o]ur appellate courts have instructed
that the evaluation of the reliability of the proffered evidence
must be considered in light of the purposes for which it is
offered.”
         The court then examined relevant appellate precedent, including three decisions specifically addressing the
admissibility of “grooming” evidence. In State v. Hansen, 

, 

 (1987), the Supreme Court held
that it was error to admit evidence of “the specific techniques
used by some child abusers ‘to get close to the victim’ ”—
what the detective in that case described as the “grooming
process”—to explain a child’s unwillingness to implicate
an abuser or to show that sexual abuse had occurred. In
State v. Stafford, 

, 

 (1998),
rev den, 

 (1999), this court held that expert testimony on “grooming behaviors” was admissible to show that
the defendant’s conduct was sexually motivated. In State
v. Swinney, 

, 

, rev den,
602                                        State v. Williams

 (2015), this court held that expert testimony on
grooming was admissible to help the jury understand and
evaluate testimony regarding the defendant’s overarching
plan to choose, desensitize, and abuse the victim, as well as
to corroborate the victim’s account of the abuse.

         Parsing the state’s theories of admissibility under
that case law, the trial court ultimately concluded that
Satterwhite’s proffered testimony was “sufficiently reliable
to be admissible for some, although not all, purposes” and
explained that its “ruling that the evidence is admissible
is conditional: it depends on the reason it is being offered.”
It explained that the testimony was relevant and reliable
to explain and contextualize S’s and J’s disclosure behaviors and would be helpful to the jury on that issue, including by providing possible explanations for the children’s
behavior and decision-making processes. The court also
concluded that the probative value of the evidence for that
purpose was not outweighed by any unfair prejudice, noting that Satterwhite would not be allowed to testify that
the children were telling the truth or otherwise vouch for
them.

         The court further explained that, because the evidence was being admitted only to help the jury assess the
children’s delayed disclosures, “detailed descriptions of specific behaviors employed to achieve the alleged abuse [are]
inadmissible”—a limitation the court drew from Hansen.
The court left open the possibility, however, that the evidence might be admissible for one or more other purposes,
depending on how the evidence and theories developed at
trial. The court explained that, because of the conditional
nature of its ruling, it would be incumbent on defendant to
object when the evidence was offered at trial, at which time
the state would have to articulate a permissible purpose for
offering it. The court concluded its order by stating, “If the
evidence unfolds in a way that testimony regarding offender
strategies to further abuse becomes relevant for another
purpose, such as was described in Swinney or Stafford, the
court will consider the evidence in light of that purpose as
well as in light of OEC 403 and the appellate cases considering similar evidence.”
Cite as 

 (2022)                             603

B.   Trial
         The case proceeded to trial. As relevant here, the
state presented evidence that defendant had cultivated
and exploited a relationship with S. There was evidence
that defendant began favoring S over S’s two sisters and
his own three stepchildren. He was affectionate and attentive toward S, gave her candy and soda, bought her clothes,
and bought her an engagement ring that she picked out at
Walmart when they were together. S would sit on defendant’s
lap, lean on him, and hold hands with him. Defendant drove
S—and only S—to school, even though two of his stepchildren attended the same school. He also frequently took S for
rides in his tow truck (he was a tow truck operator), which
was against company policy, and which he seldom did with
the other children.
         The state presented evidence that defendant began
sexually abusing S after his ATV accident, when they were
spending a lot of time together. The nature of the abuse progressed over time from defendant touching S’s breasts and
buttocks to oral sex, manual stimulation, penile-vaginal
contact without penetration, and digital penetration. There
was evidence that on one occasion, “early on,” defendant
showed S a gun and threatened to hurt her family if she
ever disclosed the abuse.
         The state also presented evidence as to how defendant brought J into the relationship. Defendant would tickle
both girls between their thighs, around their butts, and near
their genital areas. He sometimes laid his chest on their
legs, stomachs, or chests, or laid on top of them. There was
evidence that, on at least one occasion, he sexually abused S
in front of J. The state also presented evidence of an incident
in which J touched defendant’s genitals as part of a “truth
or dare” game when S was present—a touching that formed
the basis for one of the counts of sexual abuse.
        After putting on much of its case, the state was
ready to call Satterwhite. Before doing so, the state advised
the court (outside the jury’s presence) that, given how the
evidence had developed, it wanted Satterwhite to testify
about the grooming process in more detail than the court’s
604                                                    State v. Williams

pretrial ruling allowed. The state took the position that
(1) it was now apparent that the defense theme was that
S and J were lying about the abuse, and (2) evidence about
grooming behavior would be probative of whether the touching during the “truth or dare” game was for defendant’s
sexual gratification and part of a larger plan to desensitize S and J. The state argued that, rather than limiting
Satterwhite to explaining delayed disclosure by reference
to the general strategies used by abusers, the court should
allow her to explain those strategies in more detail, that is,
allow her to identify specific behaviors that could be grooming. In response, defendant renewed his pretrial relevancy
objection, but his primary argument was that such evidence
would be tantamount to impermissible vouching for J’s and
S’s credibility.2
         The trial court agreed with the state that, given the
evidence and theories developed at trial—which included
the defense suggesting to the jury that it did not make sense
that S and J would repeatedly put themselves in uncomfortable positions with defendant—evidence of specific behaviors typically used by abusers was relevant and admissible. The court allowed the state to ask Satterwhite about
what she typically sees and “how offenders reach the goal of
offending.” At the same time, the court cautioned the state
not to ask questions that would cause Satterwhite to comment in any way on what S and J specifically reported.
          The jury returned, and Satterwhite took the stand.
After describing her educational and professional background and her techniques for interviewing children,3
Satterwhite was asked about “research on child sex abuse
disclosures.” She confirmed that such research exists and
that it is important to have that knowledge in her work. She
explained that “disclosure is a process,” rather than “a onetime thing,” and that disclosures “come out in many different

    2
      Because no vouching arguments are presented on appeal, we do not
describe defendant’s argument as to how Satterwhite’s testimony would constitute vouching.
    3
      Satterwhite did not testify regarding her own interviews with J and S,
beyond the fact that those interviews occurred and were conducted consistently
with her training. That portion of Satterwhite’s testimony is not at issue on
appeal, so we do not detail it.
Cite as 

 (2022)                             605

ways,” depending “where that child is at on the continuum
of disclosure.” Disclosures generally break down into four
“[v]ery broad” categories for investigative purposes. Purposeful disclosures occur when a child is ready to tell and has
made a decision to tell. Accidental disclosures occur when,
for example, a child tells a therapist or a best friend in confidence, or someone walks in on abuse, and then that information ends up with the police. Elicited disclosures typically occur with younger children, who may be acting out
sexually or may go to a hospital with an injury or sexually
transmitted infection, and they end up telling when asked.
Withheld disclosures are not actually disclosures—that category is used to refer to children who never tell. In terms of
frequency, withheld disclosures are the most common, followed by accidental disclosures: “Most people don’t tell about
their abuse, but the ones that do it’s typically accidental.”

          Satterwhite then testified regarding delayed disclosure, which she defined to mean disclosure “that is delayed
by months or years after the event happened,” and the process of disclosure more generally, which may take place over
a period of time, depending on how ready the child is to talk.
There are “a lot of barriers” to disclosure, which fall into
three general categories—personal, relational, and societal.
Examples of personal barriers are self-judgment, age, fear
of getting in trouble, and fear of losing friends. Examples
of relational barriers are unsupportive caregivers (the child
does not expect to the believed) and the victim-offender relationship. The victim-offender relationship “really affects the
disclosure process depending on how that relationship is
built.” In cases involving strangers (which are “quite rare”),
“most kids tell right away” because they have no tie or bond
to the person. By contrast, when a child is abused by someone whom they trust and are close to, such as a family member, close friend, teacher, or peer, “the dynamics that go into
the victimization”—meaning “a grooming or manipulation
process”—directly affects the child’s disclosure.

        Satterwhite then described the concept of “grooming.” She explained that “grooming” is a “layman’s term,”
whereas professionals call it “ ‘manipulation,’ because that’s
what it is at face value.” Essentially, offenders use certain
606                                        State v. Williams

strategies to manipulate children into sexual abuse. They
gain access to a child, which may involve taking a certain
type of job, befriending people with children, acting as a
coach, or the like. Then they gain trust with the child, the
child’s family, and the child’s community. Next, the offender
blurs boundaries as to what is appropriate and desensitizes
the child to sexual touch, which may include showing pornography, telling “nasty jokes,” and doing “risky” things with
the child like providing alcohol, as well as physical things
like lap sitting, massaging, and tickling. The offender may
test a child’s boundaries by, for example, touching a breast
with an elbow, to gauge the child’s reaction and to see if the
child tells.
         If the child does not react or tell, then actual sexual abuse may begin at that point. The child may “accommodate” the abuse—which essentially means not tell, at
least for some period of time—for a variety of reasons. The
child may want attention, may have been groomed to enjoy
sexual touching, may want to protect a sibling or someone
else from abuse, may want to keep special privileges that
the offender provides, or may have a “crush” or feel “in love
with” the offender. Another child could become involved, if
the offender brings in another child to watch or participate
as part of grooming that other child, or the child could bring
another child into the abuse.
        Related to accommodation, Satterwhite next addressed
why it might be that a child who is being abused and does
not like being abused “still goes back and hangs around
the abuser.” She testified that human behavior is “hard to
explain,” and it differs by situation, but sometimes kids feel
that they are “trapped” or “obligated” or “need to get along.”
The offender may promise trips or give money, gifts, or
attention. Satterwhite has seen “a lot of kids who have been
maltreated and they don’t get attention and so they like that
attention.”
         Returning to the issue of disclosure specifically,
Satterwhite testified that a child who has been manipulated
into sexual abuse may never tell or may only minimally
disclose. “It’s a whole big dynamic.” There may be threats
around disclosure, either perceived (fear of what people will
Cite as 

 (2022)                                607

think of the child) or real (the offender threatening that, if
the child tells, the child will go to foster care, or the offender
will go to jail). The child may fear not being believed. A child
who feels close to the offender is “most likely not to tell.” The
strength and length of the relationship bond “often has an
effect on the length of the delay before they disclose, if they
do.” Remoteness may also affect disclosure, in terms of “how
long ago was it” and being “away from [the] offender.”

         On cross-examination, as relevant here, Satterwhite
answered some questions about the research on grooming, victim-offender dynamics, manipulation, and behavior. Satterwhite agreed that more research is needed. She
also agreed that behavior cannot be identified specifically
as “grooming and manipulation” until after one knows that
abuse has occurred, at least with respect to early behaviors like hugging and buying gifts, which could be innocuous; later behaviors like exposure to alcohol or pornography
could be labeled as grooming even if no sexual abuse has yet
occurred. Satterwhite agreed that a delay in disclosure does
not make a child any more or less credible, as far as whether
sexual abuse actually occurred. Satterwhite is “sure” that
she has interviewed children who were lying, although she
has no way to know, insofar as she only interviews the children and hears what they have to say—she does not investigate any allegations that are made or make any assessment
as to whether they are telling the truth.

         During closing arguments, the prosecutor initially
did not mention Satterwhite’s grooming testimony, referring
only to her forensic interview questions. However, defense
counsel argued in his closing that Satterwhite’s grooming
testimony was unhelpful and “bad science,” in that the acts
she referenced could just as easily be acts of kindness and
required an exercise in hindsight. In rebuttal, the prosecutor pointed out that Satterwhite had extensive knowledge of
sexual-abuse disclosure and reminded the jury of the concepts about which she had testified: barriers to disclosure,
the offender-victim dynamic, the offender manipulation process, the strategies employed by offenders to make children
more vulnerable to touch and less likely to talk, and children’s accommodation of abuse.
608                                                      State v. Williams

        After deliberations, the jury found defendant guilty
of 17 charges. Two of the guilty verdicts merged, resulting
in the 16 convictions previously described.4 This appeal
followed.

                             III.   ANALYSIS

          Defendant challenges the trial court’s decision to
allow Satterwhite’s testimony on grooming.5 “To be admissible, scientific evidence must meet three criteria: It must
be relevant, OEC 401; it must possess sufficient indicia of
scientific validity and be helpful to the jury, OEC 702; and
its prejudicial effect must not outweigh its probative value,
OEC 403.” State v. Southard, 

, 

(2009). Our standard of review depends on which criterion
is at issue. We review relevancy determinations for errors of
law, as we do rulings on scientific validity and helpfulness
under OEC 702; however, we review OEC 403 balancing for
abuse of discretion. See State v. Ray, 

,

 (2022) (setting out that framework).

         Here, defendant advances three distinct arguments
as to why it was error to admit Satterwhite’s testimony.
First, he contends that, under Hansen, evidence regarding
the grooming process is admissible only to provide a possible explanation for the defendant’s behavior, not to provide a
possible explanation for a child’s behavior, such as a child’s
behavior in delaying disclosure. Second, he argues that, in
any event, the state failed to establish the validity and scientific reliability of a causal link between grooming behaviors and delayed disclosure. Third, he argues in the alternative that, even if Hansen is not dispositive, and even if the
state laid an adequate scientific foundation, the testimony’s
probative value was substantially outweighed by the danger
of unfair prejudice and therefore should have been excluded
under OEC 403.

    4
      Defendant was acquitted on two other charges, based on a successful
motion for judgment of acquittal.
    5
      In doing so, defendant does not distinguish between the court’s pretrial and
trial rulings, which could be problematic in some circumstances, but does not
prevent review in this instance. We understand defendant to challenge related
aspects of both rulings.
Cite as 

 (2022)                             609

        We address each of defendant’s arguments, within
the framework of the three requirements for admission of
grooming evidence.
A.   Relevance (OEC 401)
         Defendant first contends, under a subheading of
his assignment of error, that “[e]vidence of the specific techniques that a sexual offender uses to render a child amenable to abuse is irrelevant to explain a child’s delay in disclosure or to explain the child’s otherwise inexplicable
behavior.” (Emphasis added.) The crux of that argument is
that a child’s behavior following abuse, including but not
limited to a child’s delayed disclosure of the abuse, necessarily depends on the child’s state of mind, not the abuser’s
objectives or strategies. For that reason, defendant argues,
under Hansen, evidence regarding the grooming process is
irrelevant—and therefore inadmissible—for the purpose
of explaining why a child delayed disclosure or otherwise
acted in a particular way.
         The state responds obliquely to that argument: It
contends that “the trial court concluded that grooming process evidence was relevant under Swinney to rebut defendant’s claim that the victims were lying about what defendant had done and the suggestion that the victim’s conduct
was not consistent with a person who has been abused.” As
for the distinction between the child’s state of mind and the
offender’s state of mind, the state argues that defendant
failed to preserve that specific contention.
         Some disconnect between defendant’s arguments
on appeal, the state’s arguments on appeal, and the trial
court’s rulings is a product of the procedural history of
this case. The court’s pretrial ruling allowed Satterwhite
to give a “general description of the offender process as it
impacts victim decisions relating to disclosure,” including,
for example, “that as part of their effort to prevent a child
from disclosing abuse, offenders often take steps designed to
create a relationship of trust with the child or may manipulate the child into believing that revealing the abuse will
cause harm to the child or the child’s family.” However, the
court expressly prohibited Satterwhite from testifying as to
610                                        State v. Williams

the “particular details of the ‘grooming process’ such as the
manner in which an offender may desensitize or build trust
with a child,” which the court believed would run afoul of
the Supreme Court’s holding in Hansen. It was only later,
during trial, that the court allowed Satterwhite to testify
about some details of the grooming process. It did so at
that point for purposes other than explaining the disclosure
delay.

         But that is not the only complicating factor. The
record in this case developed as it did in part because of
the fine lines that have been drawn in the appellate case
law in this area. Fundamentally, defendant has viewed the
Supreme Court’s decision in Hansen as standing for the
proposition that any testimony about the grooming process is irrelevant to delayed disclosure, because it is only
the child’s state of mind—not the acts of the abuser—that
explains the delay. The state, on the other hand, has argued
that Hansen contains no such categorical prohibition and
that expert testimony regarding grooming must be examined on a case-by-case basis.

         Although the parties’ contentions and focus have
shifted over time, we agree with defendant that he adequately
preserved his challenge to the relevance of Satterwhite’s
testimony for the purpose of explaining S’s and J’s disclosures and behaviors. We therefore proceed to the merits of
that argument.

         As we have noted, and as the trial court correctly
observed, the appellate case law in this area requires careful parsing, and we take this opportunity to clarify some of
the distinctions that have been drawn. Before doing that,
however, we offer another observation about this area of
the law: The shorthand frequently used by courts and by
parties—“grooming evidence”—can obfuscate the legal questions surrounding admission of expert testimony and has
contributed to some of the difficulty finding the through line
in our cases. As the parties and witnesses discussed below,
“grooming” is more of a concept than a uniformly defined
scientific term, and not all “grooming evidence” is the same.
For that reason, we will endeavor to be somewhat more
Cite as 

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precise as we discuss our previous cases and the evidence
before us in this case.
         We start with Hansen. The defendant in that case,
a high school teacher, was charged with third-degree sodomy. 

. The alleged victim was a student, who
admitted in her trial testimony that she had denied what
happened for months. 

. To address that fact, the
state offered expert testimony from a detective with experience investigating child sexual abuse. 

. The
detective testified, over the defendant’s objection, that it
was normal for child victims to deny abuse because of guilt
and embarrassment and, “where they had an emotional tie
to the abuser, because they wished to protect the abuser.”

. It was the next question and answer that were the
subject of the defendant’s appeal:
       “ ‘Q. [By the prosecutor] Now, do you find certain common factors when you work with both the victims and
   offenders in these non-family cases? Do you find certain
   factors or methods that an offender will use to get close to
   the victim?
      “ ‘…
       “ ‘A. [By Detective Robson] Yes, there are certain techniques. It’s usually what I term a “grooming process.”
   Usually, there’s an extensive amount of testing that goes on
   both physically and psychologically. There is usually a lot
   of gift giving, a lot of affection, praising, rewards, anything
   to make the individual more comfortable even to the extent
   of dealing with lots of people surrounding this particular
   person, just getting into a comfortable role; in other words,
   feeling comfortable and being close to an individual. Yes,
   they often establish some emotional dependency.’ ”

 (brackets and ellipsis in Hansen).
          As the Supreme Court understood it, the defendant in Hansen appeared to be arguing on appeal that it
was error to allow “expert testimony concerning the specific
techniques that a child abuser ‘will use to get close to the
victim’ ” because “any probative value the testimony might
have had was outweighed by the danger of unfair prejudice
to her.” 

 The state, in response, contended that the testimony was admissible to explain the student’s initial denial
612                                              State v. Williams

of a sexual relationship with defendant. 

. The state
relied on State v. Middleton, 

, 

 (1983), in which the court held that it was not error to
allow an expert to testify regarding the typical child victim’s reaction to familial sexual abuse, as that testimony
could help explain to the jury a victim’s “superficially bizarre
behavior by identifying its emotional antecedents.” 

         The Hansen court held that the detective’s testimony in Hansen was unlike the evidence in Middleton and
“did nothing to explain the student’s initial denial of sexual
relations with defendant.” Id. at 175. The court explained:
   “[The detective] testified that, in his experience, sexually
   abused children are reluctant to admit the abuse because,
   in addition to feelings of guilt and embarrassment, they are
   often emotionally dependent on the adult abuser. That much
   of his testimony arguably is admissible under Middleton,
   although Middleton involved intra-family abuse, because it
   might assist the trier of fact to understand the student’s
   initial denial. But the specific techniques used by some child
   abusers ‘to get close to the victim,’ which may result in the
   child’s emotional dependence on the abuser, are irrelevant
   to the effect the dependence has on the child’s willingness to
   implicate the abuser. It is the emotional dependence, not the
   specific acts that produce it, that helps to explain the child’s
   behavior. Middleton does not support the admission of this
   testimony.”
Id. at 175-76 (emphasis added).
          Although the state’s only admissibility argument
on appeal in Hansen had been that the testimony helped
explain the student’s initial denial, the Supreme Court went
on to address “[t]he only other possible ground” for admissibility, which would be as evidence that the defendant in fact
had a sexual relationship with the student. Id. at 176. The
court stated that the relevance of the evidence for that purpose was “practically nil.” Id. In the court’s view, the detective’s testimony had essentially created a “profile” of a “nonviolent child abuser who is unrelated to the child”: “physical
and psychological ‘testing’ of the child, giving gifts, showing
affection, praising, making the child feel comfortable in the
abuser’s presence, etc.” Id. But, the court explained, the fact
that “child abusers use these techniques has no bearing on
Cite as 

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whether a person who does these things is a child abuser.”

 Given the lack of probative value, the court concluded
that it was error for the trial court to admit that part of the
detective’s testimony. Id. at 175.
         Defendant understands Hansen to have announced
a categorical rule that evidence of abuser techniques is
irrelevant to explain a child’s delayed disclosure or otherwise seemingly abnormal behavior. But that is not what
Hansen says, nor is it consistent with how relevance determinations are made. Hansen did not purport to address, in
the abstract, whether techniques or strategies that abusers
use to facilitate abuse are relevant to a child’s disclosure of
abuse. Hansen involved a question of the relevance of expert
testimony on a particular subject—that children are reluctant to admit abuse when they are emotionally dependent
on the abuser, and that some abusers use specific techniques
“to get close to the victim,” which may result in emotional
dependence—to explain a particular fact in the case—the
student’s initial denial of a sexual relationship with the
defendant. 

.
          That subject-specific analysis is how relevancy determinations must be made. Relevance is not an inherent characteristic of testimony; rather, it is a relationship between
particular evidence and a matter provable in the case. See
State v. Jesse, 

, 

 (2016) (explaining the relational aspect of relevancy in the context of scientific evidence). Nothing in Hansen suggests that the court’s
discussion of the relevance of the testimony to delayed disclosure represented a departure from that approach and
announced a broader rule that an offender’s strategies can
never bear any relationship to the process of disclosure,
regardless of the nature of the testimony.
         In fact, the Supreme Court subsequently clarified
the aforementioned passage from Hansen. In State v. Stevens,

, 

 (1998), the court considered
the scope of Hansen in a case in which the defendant was
charged with murdering his girlfriend’s child. The defendant had blamed his girlfriend for the death and emphasized her “mellow” response to the child’s death and her
continued relationship with defendant afterward. 

.
614                                            State v. Williams

To try to explain that behavior, the state presented expert
testimony that the mother was suffering from “battered
woman syndrome,” as well as evidence about specific acts of
abuse by the defendant. 

. On appeal, the defendant argued that such evidence was inadmissible under the
aforementioned portion of Hansen, because “the fact that
[the mother’s] state of mind was relevant did not make the
specific acts that produced that state of mind relevant.”

.
         The court rejected the defendant’s broad reading of
Hansen. It explained that, although Hansen “indicates that
testimony that describes the process of victimization may
be inadmissible in some circumstances, either because it is
irrelevant or unduly prejudicial, that case does not hold that
such testimony is, in all circumstances, inadmissible.” 

Rather, “Hansen involved the testimony of an expert who
purported to explain the seemingly abnormal responses of
a certain class of victims to a particular type of criminal
behavior. In general, such experts can and must do so without providing details of the victimization process: Those
details are irrelevant to the expert’s subject matter and, as
such, rarely will pass the balancing test of OEC 403.” 

         Our subsequent cases have understood Hansen’s
holding to be limited to its factual context—at least with
regard to uses of testimony for purposes other than proving
that the defendant is an abuser. In Stafford, we explained
that “[t]he holding in Hansen that ‘grooming’ evidence was
not relevant is not on point as to the facts in this case.” 

. We distinguished Hansen based on the theory on which the evidence was relevant, not the nature of
the expert testimony:
      “In Hansen, the relevance of the detective’s testimony
   depended on whether the evidence about grooming could
   explain the student’s initial denial of sexual relations with
   the defendant. As the court held, the ultimate emotional
   dependence on the abuser could have been relevant to
   that issue but the underlying acts that led to that dependence were not. In contrast, the evidence in this case about
   grooming is the gravamen of the charges against defendant.
   Defendant’s position that his conduct was not intended as
   grooming behavior puts his intent directly in issue. Evidence
Cite as 

 (2022)                                 615

   that conduct, like that which occurred in this case, falls
   within the cognizable behavior patterns of sex offenders
   as steps toward the ultimate completion of sexual abuse
   makes it more probable that defendant’s motivation for his
   conduct was for his own eventual sexual gratification.”

 (emphasis added).
        Several years later, in Swinney, we again distinguished Hansen, but we did so based on both the purpose for
which the evidence was being used and differences in the
nature of the expert testimony itself. We explained:
       “First, the grooming evidence in this case is factually
   distinct from Hansen. The victim’s testimony described a
   progression of sexual abuse that involved defendant slowly
   introducing, and making the victim comfortable with,
   increasingly intrusive touching over time. [The expert’s]
   testimony about grooming was relevant because it helped
   the jury to understand the victim’s testimony in the context of how familial sex abuse typically presents. The ‘specific acts’ of grooming that [the expert] described as typical were the very kind of acts that formed the basis of the
   charges against defendant, and thus his testimony was relevant for understanding a central issue in the case.
      “…
      “Further, the testimony about grooming that concerned
   how offenders often choose vulnerable children was relevant to understanding defendant’s plan to abuse the victim, which is admissible under State v. Leach, 

, 

 (2000) (concluding that evidence of
   grooming was relevant to ‘plan’ or ‘preparation’ and should
   not be excluded under OEC 403 balancing).”

.
        Based on the nature of the expert testimony in
Swinney and the issues in that case, we concluded that “the
relevance is much more than ‘practically nil,’ ” because it
“did not require the jury to follow a chain of inferences or
to take any logical leaps; if believed, his testimony served
to illuminate the significance of specific acts that the victim described that formed the basis for the charges against
defendant.” 

. We reiterated in a footnote that
“Hansen is distinguishable on its facts,” but also observed
616                                        State v. Williams

that the body of research around the concept of grooming
behaviors had greatly expanded since Hansen, calling into
question some of the underlying reasoning in Hansen. 

 at
554 n 2.
         Most recently, we considered the relevance of expert
testimony about the general concept of grooming in State
v. Etzel, 

, 

 (2021). In that
case, a police detective testified that he was familiar with
the “process of grooming” and that the process “var[ied]
depending on the child’s age and the child-offender relationship.” 

. The detective gave “examples of different
ways that an offender might ingratiate himself with a child
and the child’s family, depending on the child’s age, with
the ultimate goal being to sexually offend against the child
and get away with it.” 

 He also explained that grooming progresses in stages, that the physical-contact line may
be crossed with a simple hug and then extended hugs, and
that the physical contact becomes sexually gratifying to the
offender, who is touching the child and thinking about what
he would like to do or the next step. 

          Relying on Swinney, we held in Etzel that the detective’s testimony “was relevant to help the jury understand
that it is possible for seeming acts of kindness to serve a
dark purpose and that a person’s seemingly close relationship with a child does not exclude the possibility of sexual
abuse.” 

 (emphasis in original). We distinguished
that use of the testimony from the prohibition in Hansen,
explaining that the detective’s testimony was “not relevant
to show that a particular defendant is a sexual offender
because he engaged in facially innocent acts that could be
grooming.” 

 (emphases in original).
         Taken as a whole, we discern two relevancy principles from the foregoing case law. First, evidence that
child abusers sometimes engage in certain behaviors as
a technique or strategy to further abuse has “no bearing”
on whether a particular individual who engages in such
behaviors “is a child abuser.” Hansen, 

. Second,
whether expert testimony related to the grooming process is
relevant for another purpose—such as to provide an alternative explanation for a defendant’s seemingly kind behavior,
Cite as 

 (2022)                               617

to provide an alternative explanation for a child’s delayed
disclosure, or to provide an alternative explanation for a
child’s continued interactions with the defendant—depends
on the relationship between the subject of the expert testimony and the issues of consequence in the case.
         Applying those principles, we reject defendant’s
argument that the trial court erred in concluding that
Satterwhite’s testimony regarding techniques used by
offenders was relevant to explain S’s and J’s behavior. As
described above, the subject matter of Satterwhite’s testimony was broader than whether emotional dependence
affects disclosure. The subject matter of her testimony was
how the dynamics between offenders and victims, and the
strategies used by offenders, can affect the ways in which
children perceive and disclose abuse, including how children
become desensitized to abuse or accommodate the abuse.
Unlike in Hansen, the techniques used to create the dynamics that enable continuing abuse cannot easily be separated
from the ultimate question of why S and J may have delayed
disclosure or behaved as they did in this case. The state’s
theory, which Satterwhite’s testimony helped to explain,
was that S’s and J’s actions could have been the product of
particular techniques that were being used by defendant.
         That brings us to defendant’s related argument,
which is that relying on Satterwhite’s testimony to explain
the children’s behavior requires circular reasoning. According to defendant, evidence of offender strategies explains a
child’s behavior only if the jury first accepts the child’s claim
of sexual abuse. That is, only upon concluding that sexual
abuse occurred can one conclude that earlier acts that would
otherwise be innocuous (carrying an innocent intent) were
actually grooming (carrying a sexual intent). In defendant’s
view, a juror thus improperly uses the same evidence to
conclude both that sexual abuse occurred (because grooming occurred) and that grooming occurred (because sexual
abuse occurred).
         We agree with defendant that expert testimony
about victim-offender dynamics can invite circular reasoning, in some circumstances, but we disagree that it always
does so. As the state points out, a juror who knows nothing
618                                          State v. Williams

about the dynamics of abusive relationships might assume
that a child who is being sexually abused would immediately report the abuse and make every effort to avoid the
abuser. Expert testimony about the dynamics of disclosure
undercuts that reasoning, leaving open the possibility that
a child’s delayed disclosure or ongoing relationship with the
defendant was the product of manipulation. That is fundamentally different from using such testimony to suggest
that, because the defendant engaged in certain behaviors
that could be grooming for sexual abuse, the defendant was
engaged in grooming, and so did engage in sexual abuse.
In some circumstances, it may be necessary or appropriate
to give a limiting instruction to avoid the risk of circular
reasoning identified by defendant. But, when offered for a
proper purpose, the evidence is not irrelevant under OEC
401.
        For the foregoing reasons, we reject defendant’s relevancy argument.
B.    Scientific Foundation (OEC 702)
         We turn next to defendant’s contention that
Satterwhite’s testimony lacked scientific validity and reliability under OEC 702. Defendant acknowledges that “the
issue before the trial court was not whether the behavioral
science concept of grooming by offenders is well-established.
It is.” Defendant also appears not to dispute the scientific
validity of the phenomenon of delayed disclosure. See generally State v. Perry, 

, 

 (2009) (holding that
the state had established the validity of evidence regarding
delayed reporting of child sexual abuse). What defendant
argues is that the state’s proffered articles, reviews, studies, and bibliographies do not establish a scientifically valid
nexus between the two. Essentially, defendant argues that
there is no scientific evidence that a groomed child is less
likely to disclose than an ungroomed one.
          We have significant doubts as to whether defendant preserved that issue for appeal. Defendant’s briefing
and argument in the trial court focused on the lack of scientific validity of using so-called grooming behavior to prove
that “the person did the thing,” i.e., that the abuse occurred.
Cite as 

 (2022)                                619

When pressed on his position, he never raised the issue that
he raises now.
          In any event, we would reject defendant’s argument
on the merits, so we do not resolve the close preservation
question. In State v. Henley, 

, 

,
rev den, 

 (2021) (Henley II), we recently considered a challenge to the scientific validity of testimony
related to grooming. We explained that the Supreme Court
has identified various nonexclusive factors that may be
relevant when assessing the scientific validity of evidence.

 (describing factors under State v. O’Key, 

, 

 (1995), and State v. Brown, 

,

 (1984)). Not all of those factors will be relevant in every case, and no single factor is dispositive; rather,
“[d]etermining 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,” and 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.” Id. at 818. We
noted that, in Perry, 

, the court relied only on
the few factors that it considered germane to address scientific evidence on the phenomenon of delayed reporting of
child sexual abuse and that, in Marcum v. Adventist Health
System/West, 

, 

 (2008), the court
declined to use the Brown/O’Key factors at all, because they
were not useful in evaluating the scientific basis for medical
causation testimony, which differed in nature from a particular technique or method. Henley II, 310 Or App at 818.
        In Henley II, it was reasonable to infer that testimony “about the general concept of grooming” had been
admitted “only to explain the potential significance of some
of defendant’s behavior,” not to establish that the defendant had groomed the victim and therefore had sexually
abused her. Id. at 822. And, for that limited purpose, we
concluded that the state had established scientific validity.
We explained:
      “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
620                                             State v. Williams

   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 [the expert’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 [the expert] testified. That is, the state
   adequately established that [the expert’s] testimony was
   not grounded in ‘bad science’ 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)).”
Henley II, 310 Or App at 823-24.
         We reach a similar conclusion in this case. The trial
court did not admit Satterwhite’s testimony to show that
being groomed makes it more likely that a child will delay
disclosing abuse. The evidence was admitted to help the jury
understand that, although a child not reporting or delaying
reporting might mean that the abuse did not occur, an alternative is that it might mean that the child was responding
to a particular victim-offender dynamic. For that purpose,
we have little trouble concluding that the evidence was scientifically valid. The phenomena of delayed reporting and
victim-offender dynamics are well established and based on
specialized literature, including at least one book proffered
by the state that asserts the somewhat common-sense proposition that “literature on offender modus operandi helps
professionals understand the dynamics underlying children’s failure to disclose abuse.”
        The fact that the literature offered by the state
regarding delayed reporting and victim-offender dynamics
Cite as 

 (2022)                               621

does not expressly link those overlapping fields of study—
for instance, to show exactly how frequently an offender’s
efforts to suppress disclosure are successful—is not a bar to
admitting the testimony. See Perry, 

 n 3, 124
(noting that controlled studies of child sexual abuse are not
possible as they would require “a perversion of science” and
that, where controlled studies are not possible, other factors
must play a more significant role). Again, the evidence was
not offered to show that it was likely that grooming behaviors had affected S’s and J’s behavior; it was offered to show
that it was possible and to supply an alternative explanation (other than their lying) for their delayed disclosures and
their continued contact with defendant.
         Ultimately, the focus of the scientific-validity inquiry
is on principles and methodology, not conclusions. Stepping
back, nothing about Satterwhite’s testimony suggests
to us that the well-established scientific research surrounding delayed reporting or victim-offender dynamics
was being used in a novel way in this case, such that it
would result in “bad science” going to the jury. Marcum,

 (“Questions as to the weight to be given that
testimony, possible weaknesses in the expert’s theory, and
the ultimate issue of causation were for the jury to decide
based on all the evidence.”). We therefore reject defendant’s
OEC 702 argument.
C. Balancing of Probative Value and Prejudice (OEC 403)
         Defendant’s final argument, which builds on his
other contentions, is that the trial court erred in its balancing of the probative value of Satterwhite’s testimony against
the danger of unfair prejudice to defendant under OEC 403.
He argues that the probative value of the evidence was minimal to nonexistent (1) for the reasons set forth in Hansen,
(2) because it required circular reasoning premised on
defendant’s guilt, and (3) because it added little to what the
jury could have determined based on common sense—that
a child might delay disclosing abuse because of the relationship with the offender, not because of the offender’s intent in
establishing the relationship. On the other side of the scale,
he argues, the potential prejudice was significant, because
the jury was reasonably likely to misuse the evidence to
622                                        State v. Williams

“scientifically” find that defendant fit the “profile” of an
abuser and therefore committed the alleged sexual abuse.
         On this record, we are not persuaded that the trial
court abused its discretion in concluding that the probative
value of the evidence outweighed the danger of unfair prejudice. The court identified the state’s need for the evidence
to explain S’s and J’s behavior, and it carefully delineated
the manner in which Satterwhite was allowed to testify,
instructing the state to have Satterwhite describe the evidence in the abstract, without connecting it to the facts of
this case, and not to ask her to comment on whether defendant’s behavior constituted grooming. The state adhered
to those instructions, and Satterwhite’s testimony did not
exceed those boundaries, which mitigated the danger of
unfair prejudice. On this record, the trial court acted within
its discretion in ruling the evidence to be admissible under
OEC 403.
                    IV. CONCLUSION
          In sum, the trial court did not commit evidentiary
error by admitting Satterwhite’s “grooming” testimony for
the purposes that it did on the record that it had. However,
the court erred by instructing the jury that it could return
nonunanimous guilty verdicts, entitling defendant to reversal of his convictions on Counts 12, 13, and 19, with a remand
for a new trial on those counts and resentencing on the other
counts.
       Convictions on Counts 12, 13, and 19 reversed and
remanded; remanded for resentencing; otherwise affirmed.