State v. Moore

624                   May 15, 2024                 No. 326

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
          MYRON RICHARD ALLEN MOORE,
                 Defendant-Appellant.
            Tillamook County Circuit Court
                 20CR65915; A179212

  Jonathan R. Hill, Judge.
  Submitted April 12, 2024.
  Andy Simrin and Andy Simrin PC filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             625

        KAMINS, J.
         Defendant appeals a conviction for one count of
first-degree sodomy. In a single assignment of error, he contends that the trial court erred by excluding testimony from
a defense expert because it was relevant as nonscientific
evidence. Because defendant argued that the evidence was
scientific before the trial court, any error is unpreserved. We
therefore affirm.
          The state charged defendant with sodomy and sexual
abuse based on an encounter where, after a night of drinking, J, a friend of defendant, awoke to defendant performing
oral sex on her. After J told defendant to stop, which he did,
J walked defendant out of the room and hugged him. At the
trial, defendant sought to offer testimony from Robert Malaer,
a certified forensic nurse specialist, that sexual abuse victims
do not hug perpetrators after an assault. The state filed a
motion in limine arguing that that testimony lacked scientific
foundation under OEC 702. At the hearing on the motion in
limine, defense counsel explained that the evidence possessed
the necessary scientific foundation because Malaer’s qualifications are based in “scientific areas,” which involve examining “all the information pertaining to this alleged case” and
“observing what aspects are consistent and are not consistent
with his trained opinion.” Defense counsel further argued
that the behaviors of sexual assault victims “are usually …
established through scientific training.”
         Following the hearing, defense counsel provided
briefing addressing several cases in support of the proposition that Malaer was “an expert in sexual assault survivor
behaviors.” Defense counsel posited that because Malaer
“conducted over 100 SANE evaluations and having been
trained in recognizing the behavior of sexual assault survivors, [he] was able to conduct proper analysis of the complaining witness’s account as relayed to law enforcement.”
The trial court ultimately excluded the testimony, reasoning
that although Malaer qualified as an expert, his testimony
lacked the necessary scientific foundation.
       On appeal, defendant argues that the trial court
should not have evaluated the scientific foundation of
626                                            State v. Moore

Malaer’s testimony—that J hugging defendant was not
common conduct based on his assessment of other sexual
assault victims’ behavior—because it was relevant nonscientific evidence. That is nearly the exact opposite of what he
argued below. Before the trial court, defense counsel never
argued that Malaer’s testimony regarding a victim’s behavior was isolated from his scientific expertise or should be
admitted on any other basis. On the contrary, defense counsel repeatedly confirmed that Malaer was proffering scientific testimony. The trial court understood that to be defense
counsel’s position, observing that, “the Defense agrees that
Mr. Malaer’s proposed testimony constitutes ‘scientific evidence.’ ” Because he did not make the argument he presents on appeal to the trial court, it is unpreserved. ORAP
5.45(1) (“No matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court[.]”); State v. Stevens, 

, 

(1998) (holding that even though the defendant made a “general reference to the seven-factor test for admissibility of
scientific evidence,” his argument was unpreserved because
he did not raise an issue “regarding the admissibility of
[the expert’s] testimony as scientific evidence”). Defendant
does not seek review of the unpreserved error as plain, and
we will ordinarily not undertake that analysis “unless an
appellant has explicitly asked us to do so.” State v. McIntire,

, 

 (2023), rev den, 

(2024) (internal quotation marks omitted).
        Affirmed.