State v. Bolton

255

Argued and submitted September 11, 2019, reversed and remanded

March 31, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

LARRY MARSHALL BOLTON,

Defendant-Appellant.

Marion County Circuit Court 15CR16809;

A163568 (Control), A163569

484 P3d 347

Defendant appeals from a judgment of conviction for 17 offenses involving

the abuse of his wife. He primarily assigns error to the trial court’s admission,

without a foundation for scientific evidence, of the expert testimony of the state’s

witness about the counterintuitive behaviors of victims. The state contends, in

a cross-assignment of error, that the trial court erred in determining that the

state had not provided an adequate foundation for scientific evidence. Held: As

to defendant’s assignment of error, the expert testimony required a scientific

foundation, and the trial court erred in admitting the evidence as nonscientific

expert testimony. As to the state’s cross-assignment of error, the trial court did

not err in finding that the foundation that was laid was insufficient for scientific

evidence, and that insufficiency is not remedied by scholarly articles offered on

appeal.

Reversed and remanded.

Sean E. Armstrong, Judge.

Daniel C. Bennett, Deputy Public Defender, argued the

cause for appellant. Also on the opening brief and a supple-

mental brief was Ernest G. Lannet, Chief Defender, Criminal

Appellate Section, Office of Public Defense Services. Larry

Marshall Bolton filed a supplemental brief pro se.

Jordan R. Silk, Assistant Attorney General, argued the

cause for respondent. Also on the briefs were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge,

and Powers, Judge.

DeVORE, J.

Reversed and remanded.

256 State v. Bolton

DeVORE, J.,

In this criminal case, both defendant and the state

assign error after the trial court entered a judgment that

convicted defendant of 17 offenses involving his wife, J.1 We

address defendant’s leading assignment of error and the

state’s related cross-assignment of error. Defendant argues

that the trial court erred when, without a foundation for

scientific evidence, the court admitted the expert testimony

of the state’s witness about the counterintuitive behaviors

of victims. In a cross-assignment, the state contends that

the trial court erred in determining that the state had not

provided an adequate foundation for scientific evidence. The

state argues, offering scholarly literature on appeal, that

the foundation was sufficient for the nature of the testimony

under the standards of State v. Brown, 297 Or 404, 687 P2d

751 (1984), and State v. O’Key, 321 Or 285, 899 P2d 663

(1995).

We conclude that the expert testimony required a

scientific foundation; that the trial court erred in admitting

the testimony as nonscientific expert testimony; that the

trial court did not err in finding the foundation that was

laid was insufficient for scientific evidence; and that the

insufficiency is not remedied by scholarly articles offered on

appeal. We reverse and remand.

Before returning to those issues, we reject several

other assignments of error at the outset. Defendant argues

that the trial court plainly erred in admitting Exhibit 2, a

diagram, called a “power and control wheel,” that depicts

behavior in which domestic abusers engage. Defendant

argues that the exhibit required a scientific foundation. He

failed to preserve the issue by objecting to its admission. See

ORAP 5.45(1) (requiring preservation of error).

1

Defendant was convicted of one count of first-degree sexual abuse, ORS

163.427; one count of first-degree sodomy, ORS 163.405; one count of first-degree

unlawful sexual penetration, ORS 163.411; one count of menacing constituting

domestic violence, ORS 163.190; one count of second-degree assault constituting

domestic violence, ORS 163.175; one count of fourth-degree assault constituting

domestic violence, ORS 163.160(3); two counts of fourth-degree assault, ORS

163.160; one count of strangulation, ORS 163.187; one count of recklessly endan-

gering another person, ORS 163.195; one count of interference with making a

report, ORS 165.572; and six counts of coercion, ORS 163.275.

Cite as 310 Or App 255 (2021) 257

Defendant also argues that the trial court plainly

erred under the Sixth and Fourteenth Amendments to the

United States Constitution by instructing the jury that it

could return a verdict of guilty without a unanimous agree-

ment of the jurors. Defendant did not object to the instruc-

tion, and there was no jury poll. Because defendant did not

preserve this issue, we decline to exercise discretion to con-

sider it. See State v. Dilallo, 367 Or 340, 478 P3d 509 (2020)

(declining to consider unpreserved error in this context).

In a pro se supplemental brief, defendant assigns

error to the trial court’s ruling excluding evidence of vari-

ous prior accusations that the victim made against others.

The trial court determined that the probative value of that

extrinsic evidence was substantially outweighed by the risk

of prejudice from confusion of issues under OEC 403. We

conclude that the trial court did not abuse its discretion in

making its determination. See State v. Baughman, 361 Or

386, 406, 393 P3d 1132 (2017) (reciting standard). We reject

the assignment of error without further discussion.

We review the trial court’s determination that evi-

dence is not scientific for legal error. Brenner v. Nooth, 283

Or App 868, 877, 391 P3d 947, rev den, 361 Or 671 (2017). To

provide context for the issues addressed, we summarize the

facts.

In 2011, defendant was 51 years old and J was 24

years old. J moved into defendant’s home when recovering

from drug addiction and escaping a prior abusive relation-

ship. She was underweight, tired, and scared. Soon after

she moved in, while both were in a hot tub, he pulled her

pants off. She got out. At a party, he held her over a couch

and painfully spanked her. Someone called the police. She

left with them and spent the night in a shelter. She was

not attracted to defendant. About 10 days after her arrival,

defendant engaged in forcible intercourse over her objection.

When drunk, he spanked her, sometimes several times a

week. He assaulted her a number of times, causing a bloody

nose or holding her off the ground by the throat, saying he

could kill her. On one occasion and over her objection, he

held J down while a woman performed oral sex on her. At

258 State v. Bolton

one point, J’s aunt took her away, but J returned to defen-

dant’s home.

Defendant told J they should marry, and, in

December 2011, they did, although without her friends or

family in attendance. In March 2012, police spoke with J,

while investigating another matter. She told them of defen-

dant’s abuse, but she did not want to press charges. She left

with the police for a shelter. Defendant called repeatedly

and threatened her if she did not return. She did.

In the summer of 2013, defendant grew angry

over a torn shirt, threw J to the floor, pulled her hair, and

slammed her head into the ground repeatedly. That year,

she became pregnant.

After an argument, J prepared to leave to stay with

her sister, and defendant attacked her. She left, but, after

four or five days, J returned to defendant’s home.

Sometime after the baby was born, J decided to

leave. She secretly saved money and recorded defendant’s

abusive language. In February 2015, J and her daughter left

for a shelter and obtained a restraining order.

Defendant was charged with 21 offenses for conduct

involving J. Defendant’s theory of the case was that J had

fabricated her account of his actions. He intended to argue

that her behavior, including failing to contact police and

remaining with him, was evidence that her testimony was

untruthful.

Anticipating that defense, the state filed a pre-

trial motion to admit expert testimony regarding, among

other things, counterintuitive victim behavior. The motion

explained that counterintuitive victim behavior includes

“denial of abuse; recanting, minimizing, or changing the

statement about what happened; not leaving the abusive

relationship; returning to the abusive relationship after

leaving; resuming contact with the perpetrator including

sexual intimacy; not disclosing the abuse immediately;

covering for the perpetrator; and not cooperating with the

criminal justice system.”

In its motion, the state wrote:

Cite as 310 Or App 255 (2021) 259

“The State acknowledges that inasmuch as expert testi-

mony regarding Domestic Violence dynamics and counter-

intuitive victim behavior is offered as psychological or sci-

entific phenomenon (as was the case in Marrington and

Perry) it would likely have to qualify under the standards

set forth in Brown/O’Key.”

However, the state insisted that, where the expert testimony

is “narrow in scope,” the testimony “should not be subject to

Brown/O’Key scrutiny.”

In a pretrial hearing, the state offered the expert

testimony of Downing, the executive director of the Center

for Hope and Safety in Marion County, which is a nonprofit

agency that serves the victims of domestic violence, sexual

assaults, stalking, and human trafficking. Downing testi-

fied that she has a bachelor’s degree with double majors in

psychology and women’s studies. She testified that she was

certified by the state as a victim services specialist and has

had “thousands of hours of training,” including in “trauma

informed services for victims.” At the hearing, she offered

testimony about the myths of domestic violence: that the vio-

lence is provoked, that domestic violence is confined to low

income people, that victims “just leave [the] abuse,” that a

victim would not return to an abuser, that a person would

report abuse “right away” if abused, and that a victim is

safer after reporting abuse. In effect, she offered to testify

that the behavior that defendant would attribute to J as

inconsistent with having been abused is common among

domestic violence victims and not necessarily reason to dis-

trust the victim’s testimony.

At the hearing, defendant objected to the admission

of Downing’s testimony, arguing, among other things, that

her testimony was based in behavioral science, that it should

require a scientific foundation, and that her education was

insufficient to be an expert at all. Defendant contended

that the subject was not complex and domestic violence

was common, such that the testimony would not be helpful

because it is not beyond the experience of the jurors. The

state responded that the testimony was “not scientific evi-

dence” and was instead “expert testimony based on decades

of experience working in domestic violence.”

260 State v. Bolton

The trial court noted that Downing lacked an

advanced degree and that her testimony would not be

“admissible as scientific evidence.” That determination

becomes the basis of the state’s cross-assignment of error.

The court determined, however, that Downing qualified as

a nonscientific expert based on her experience and that her

specialized knowledge would be helpful to the jury within

the meaning of OEC 702.

At trial, Downing testified that she has worked

directly with thousands of victims of domestic violence for

over 25 years. As before, she described her college studies:

“[PROSECUTOR:] Can you tell us what your educational

background is[?]

“[DOWNING:] So I have a bachelor’s degree from

Willamette University. I double majored in psychology and

women’s studies. I’ve also taken graduate level courses

in different subjects and have had thousands of hours in

training on—specific to domestic violence, sexual assault,

stalking and human trafficking.

“* * * * *

“[PROSECUTOR:] And did those trainings cover specific

issues, for example, with regard to dynamics of domestic

violence?

“[DOWNING:] It did.”

Downing added that, in addition to receiving training on

domestic violence, she has regularly trained other people,

lectured, and testified as an expert on the subject:

“[PROSECUTOR:] Do you also conduct these trainings?

“[DOWNING:] I do.

“[PROSECUTOR:] And can you tell us a little bit about

that?

“[DOWNING:] So I have trained over 30,000 people all

across the northwest on domestic violence, sexual assault,

stalking and human trafficking. I train for the State

Victims Academy and I’m also—I’ve trained for numerous

academies. I’ve also guest lectured in universities and col-

leges around the state.

Cite as 310 Or App 255 (2021) 261

“[PROSECUTOR:] Okay. Have you also testified previ-

ously in circuit courts in Marion County and been qualified

as an expert witness regarding issues of domestic violence?

“[DOWNING:] Yes, I have been.”

Turning to the merits, Downing spoke about the

“common misconceptions” surrounding domestic violence.

She described the misconceptions that a victim somehow

provoked the violence, that a victim “can just leave [the]

abuse,” that it is safer to report, that a “victim would report

right away,” and that a victim would not go back to the

abuser. When asked about “the phrase ‘counterintuitive

victim behaviors,’ ” Downing testified that she was familiar

with it. She explained that the phrase refers to a set of com-

mon victim behaviors that defy the general public’s expecta-

tion for how a domestic violence victim would react to abuse.

Downing explained that the general public is often unaware

of how victims behave and that, in her experience, people

are often “shocked” when they learn about the dynamics of

domestic violence.

Downing described her own personal experi-

ence with the counterintuitive behaviors in which victims

engage. Among them are denying that abuse is happening,

recanting or minimizing reports of abuse, covering up for

a perpetrator, blaming oneself for abuse, being ashamed to

admit being abused, not leaving the abusive relationship,

returning to the abusive relationship, and resuming sexual

intimacy. On occasion, Downing couched her testimony in

terms of the greater national study of domestic violence. In

one instance, Downing referenced national and statewide

observations regarding the particular danger a victim faces

when trying to escape an abusive relationship:

“[DOWNING:] And the most dangerous time, we’ve found

overall—and this is nationally—is that when someone is

leaving an abuser or has left. We’ve had, unfortunately,

more than 250 individuals—women and children mur-

dered due to domestic violence in the state of Oregon in the

last few years.

“And the vast majority of them were already out of the rela-

tionship. One had been out of for a year and—or were in the

process of getting out.”

262 State v. Bolton

In another instance, Downing commented while describing

Exhibit 2—a diagram called a power and control wheel that

depicts common abusive behaviors—that “across the nation

many programs” use the wheel to educate victims.

In its rebuttal argument on closing, the state

referred to Downing’s testimony about the myths of domes-

tic violence based on “her decades of experience.” The state

recounted the myths that a victim would report abuse,

would never again be sexually intimate, and would leave

the relationship. The state argued that J’s “behavior, while

difficult for you to understand it, is very common.”

The jury convicted defendant on 17 of the offenses

charged.

On appeal, defendant assigns error to the trial

court’s ruling that Downing’s testimony was admissible as

nonscientific evidence. He argues that, after his trial, a new

decision, State v. Henley, 363 Or 284, 422 P3d 217 (2018),

made clear that testimony like Downing’s testimony was

scientific evidence that required a scientific foundation.

Under Oregon law, scientific, technical, or other

specialized knowledge may be admissible when it will assist

the trier of fact to determine a fact at issue. OEC 702.2

Scientific evidence is admissible only upon a showing of

scientific validity employing the multifactor analysis devel-

oped in Brown, 297 Or at 417, and O’Key, 321 Or at 299-300.

The Supreme Court has not “precisely defined what makes

evidence ‘scientific,’ ” State v. Marrington, 335 Or 555, 561,

73 P3d 911 (2003), and that uncertainty explains the prob-

lem presented when a proponent offers nonscientific expert

testimony that the opponent insists is scientific testimony.

The recent Henley decision summarized the characteristics

of scientific evidence this way:

“Expert evidence is ‘scientific’ under OEC 702 when it is

expressly presented to the jury as scientifically grounded,

2

OEC 702 provides:

“If scientific, technical or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training or education

may testify thereto in the form of an opinion or otherwise.”

Cite as 310 Or App 255 (2021) 263

as in Marrington. Expert evidence also is ‘scientific’ under

OEC 702 when it ‘draws its convincing force from some

principle of science,’ as in Brown, * * * or ‘implies a ground-

ing in the methods and procedures of science’ and would

likely be perceived by the jury as imbued with the ‘persua-

sive appeal of science,’ [as in] O’Key.”

Henley, 363 Or at 301 (internal citations omitted). After

Brown and O’Key, four cases illustrated the meaning of “sci-

entific” evidence. Those cases are helpful.

The decision in Marrington demonstrated that

the Brown/O’Key standard for scientific evidence reached

beyond “hard sciences” to include the behavioral sciences.

Marrington, 335 Or at 561. The court considered whether

a scientific foundation was required for the testimony of a

program manager from Family Friends, a service organi-

zation that interviewed and treated victims of child abuse.

Id. at 558-60. The witness had bachelor’s and master’s

degrees in psychology, was certified by the state as a coun-

selor, had worked for the organization for 12 years, and was

current with the literature and research in child abuse.

Id. at 558. She testified that a child’s delay in reporting

sexual abuse is a predominant feature of abuse. Id. at 559.

More carefully, she said, “[D]elayed reporting is never used

to prove a molest but it holds up against the myths of what

an adult might expect.” Id. at 559.

On review, the Supreme Court recognized “that

expert testimony concerning matters within the sphere of

the behavioral sciences possess the increased potential to

influence the trier of fact as scientific assertions, just as

expert testimony dealing with the ‘hard’ sciences does.”

Id. at 561. The court considered that the witness was licensed

by the state, professed to provide training for others about

sexual abuse, had interviewed 200 children, and referred to

research and literature in her testimony. Id. at 563. Absent

a scientific foundation, albeit one suitable for the behavioral

sciences, the testimony was found inadmissible. Id. at 564.

The judgment of conviction for first-degree sexual abuse

was reversed and remanded. Id. at 566.

In State v. Perry, 347 Or 110, 218 P3d 95 (2009),

the court affirmed a judgment on various crimes involving

264 State v. Bolton

sexual abuse of a child, upholding the admission of testi-

mony about the phenomenon of a child’s delayed reporting

of sexual abuse. The state’s witness was the medical direc-

tor of CARES Northwest, who held an M.D. and Ph.D. in

biometry. She testified that the medical profession recog-

nizes a medical diagnosis of child sexual abuse; that there

are specialized journals and other peer reviewed literature

on child sexual abuse; but that the field cannot ethically con-

duct scientifically case-controlled research in child sexual

abuse, as in “the majority of medical processes.” Id. at 113-14.

The witness testified that delayed reporting was “common,”

was “well understood,” and was considered in a body of liter-

ature. Id. at 114. She cautioned that delayed reporting was

not affirmatively probative of whether sexual abuse actu-

ally occurred. Id. at 117. After laying a foundation, the state

offered the testimony as scientific evidence. Id. at 120.

On review, the Supreme Court considered the par-

ticular Brown/O’Key factors that were made applicable by

the defendant’s objection and that were suited to behavioral

science. Id. at 121-26. Given the foundation provided, the

court concluded that the trial court did not err in admitting

the testimony. Id. at 126.

A different result occurred in the recent Henley

decision, where, as here, the state did not offer such testi-

mony as scientific evidence in the trial court. 363 Or at 290.

The defendant was convicted of first-degree sexual abuse

and attempted first-degree sodomy of his stepdaughter.

Id. at 286. The state offered the testimony of a forensic

examiner for Children at Risk Evaluation Services from

Boise, who had interviewed the victim. Id. at 288. The wit-

ness had a bachelor’s and a master’s degree in social work,

had received training in forensic interviewing, had 10 years’

experience, and had done over 600 forensic interviews.

Id. at 289. The state offered her testimony about a perpe-

trator’s behavior in “grooming” a victim to desensitize the

victim to familiarity, build trust, and weaken the child’s

defenses. Id. at 290-91. She opined that the defendant’s acts

of providing the stepdaughter massages of her neck and

chest could be considered grooming. Id. at 292. The prosecu-

tor elicited that the witness was not a psychologist, and the

Cite as 310 Or App 255 (2021) 265

prosecutor told the trial court that he was not asking for a

scientific opinion. Id. at 290-91.

On review, the Supreme Court recognized that the

witness did not purport to establish that sexual grooming

had been studied by social scientists or that her observations

about grooming had been scientifically verified phenomena.

Id. at 300. The court noted that the prosecution had “dis-

claimed that he was asking her for a scientific opinion.” Id.

The state argued that the witness gave “limited testimony

that did not make any ‘scientific assertion’ to the jury.” Id. at

301.

The state’s attempt to characterize the testimony as

nonscientific proved to be unavailing. The Supreme Court

rejoined:

“[T]he fact that the proponent of expert evidence at trial

disclaims that the evidence is scientifically grounded does

not obviate the possibility that it nevertheless constitutes

‘scientific’ evidence under OEC 702.”

Id. The court determined that the witness was presented

as an expert in child sexual abuse. She had college degrees,

certification, specialized training in forensic interviewing,

and ten years’ experience with 600 children. She opined on

grooming as a predicate to sexual abuse and identified the

defendant’s massages as grooming behavior. Id. Although

the prosecutor did not highlight the scientific nature of her

testimony, nor focus on research, studies, or literature, the

court determined that “lay jurors likely would have accorded

the testimony the persuasive value of scientific principle.”

Id. at 303. The court concluded that the testimony about

grooming was scientific, lacked an appropriate foundation,

and was inadmissible. Id. at 304.

Recently, in State v. Evensen, 298 Or App 294, 296,

447 P3d 23, rev den, 366 Or 64 (2019), we determined to be

admissible a detective’s testimony about the comparative

suggestibility of children depending upon their age. The

detective had interviewed the 12-year-old victim. The detec-

tive testified about the victim’s account that the defendant

had touched her sexually. As background, the detective tes-

tified that she had five years’ experience in such cases and

266 State v. Bolton

she followed guidelines to limit suggestibility with children.

When asked the age range during which suggestibility was

concerning, the detective answered “[m]ostly in the three to

four age group” while with “the five and six year old range,

you see a little bit more of them correcting you if you say

something wrong * * *.” Id. at 311. The defendant objected

that the testimony lacked the scientific foundation required

by Brown/O’Key standards. Id. The objection was overruled.

Id. The detective explained that, in her training and experi-

ence, the interviews of three- and four-year-old children were

more “concerning than older kids” and that she would send

younger ones to be interviewed by a specialist. Id. at 311-12.

On appeal, we noted that the detective did not men-

tion familiarity with any literature or studies supporting her

views, id. at 312, and she did not purport to draw any sci-

entific or research-based connection between her challenged

testimony and the conduct of the defendant or the victim,

id. at 316. We distinguished Henley and another recent case,

State v. Plueard, 296 Or App 580, 439 P3d 556, adh’d to as

modified on recons, 297 Or App 592, 443 P3d 1195 (2019). In

those cases, the witnesses addressed grooming, which was

a concept or phenomenon that was not common knowledge

and that implied it was scientifically based. Evensen, 298

Or App at 314-16. The detective in Evensen, however, did

not address any “ ‘phenomenon’ ” from studies of behavioral

science. Id. at 316 (quoting Henley, 363 Or at 289). She only

spoke from experience that interviews of older children are

less “concerning.” Id. We held the narrow testimony limited

to her background to be admissible. Id.

Like Henley and Marrington, we conclude that

Downing’s testimony in this case was scientific evidence.

First, the state presented her as an expert in domestic violence

based on education and training. Her undergraduate work in

psychology and women’s studies was followed by “thousands

of hours of training,” including in “trauma informed services

for victims.” She is certified by the state as a victim services

specialist and has over 25 years of experience working with

thousands of victims. She teaches about domestic violence,

guest-lectures on the subject at colleges and universities, and

has trained over 30,000 people in the Northwest.

Cite as 310 Or App 255 (2021) 267

Second, Downing made small but unmistakable

reference to presumably professional sources of information

in the field of human behavior. She observed that “the most

dangerous time, we’ve found overall—and this is nationally—

is * * * when someone is leaving an abuser or has left.” Her

observation that “we” have observed a pattern “nationally”

alludes to a broader study of domestic violence beyond her

own experience. She made a similar allusion when saying

that “across the nation many programs” use the power and

control wheel to educate victims about common patterns in

domestic violence. In applying Henley, we have determined

that this sort of phrasing “evoke[s] * * * a kind of scientific

air” which implies a scientific basis because it “suggests the

existence of a recognized pattern of conduct that has been

determined to have particular significance.” Plueard, 296

Or App at 588. With such references, Downing conveyed

to the jury an expertise that was grounded in behavioral

science.

Third, Downing was asked to describe a phenom-

enon or concept of “counterintuitive victim behavior.” Like

grooming in Henley or Plueard, it was presented as a phe-

nomenon or concept that “was not common knowledge.”

Henley, 363 Or at 304. Downing testified that the general

public is often “shocked” to learn of many of the behaviors

that she identified. As such, the phenomenon of “counterin-

tuitive victim behavior” implied a basis in behavioral sci-

ence. See id. at 301-04.

Finally, the authority that Downing conveyed was

manifested in the breadth of the opinions that she offered

on matters of human behavior beyond common understand-

ing. Her opinions described a variety of counterintuitive vic-

tim behaviors. Those opinions were not, as in Marrington,

limited to just the single phenomenon of delayed reporting,

but spanned the range of counterintuitive victim behaviors

from denial of abuse to return to the abuser.

Although the state tried to present Downing’s testi-

mony at trial as “narrowed,” or as founded on her experience

rather than in behavioral science, the state’s characteriza-

tion of the testimony is not determinative. The same attempt

failed in Henley when a narrower opinion was offered. As

268 State v. Bolton

previously noted, to disclaim “that the evidence is scientifi-

cally grounded does not obviate the possibility that it never-

theless constitutes ‘scientific’ evidence under OEC 702.”

Henley, 363 Or at 301.

We conclude that Downing’s testimony about coun-

terintuitive victim behavior was “scientific” evidence within

the meaning of OEC 702. As a result, the trial court erred

in permitting the testimony as purportedly expert non-

scientific testimony in the absence of an appropriate scien-

tific foundation suitable to behavioral science. See generally

Perry, 347 Or at 121-26 (discussing an appropriate founda-

tion for behavioral science).

In its cross-assignment of error, the state contends

that, even if Downing’s testimony was scientific testimony,

the trial court erred in ruling that the evidence was insuf-

ficient to provide a foundation for scientific testimony. The

state invites us to determine, based on Downing’s experi-

ence and the secondary literature that the state cites in its

brief, that Downing’s testimony should be admissible under

the multifactor test of Brown and O’Key. See State v. Branch,

243 Or App 309, 314, 259 P3d 103, rev den, 351 Or 216 (2011)

(explaining that, in determining whether evidence is sci-

entifically valid, we may consider scientific literature both

outside of the record and presented for the first time on

appeal).

As an initial matter, we decline the state’s invita-

tion to supplement the record with scholarly writings refer-

enced in the state’s brief. The Supreme Court declined the

same invitation in Henley. In that case, the state requested

judicial notice and asked that the court determine that the

concept of sexual grooming possesses a level of scientific

validity sufficient to be admissible under OEC 702. 363 Or

at 304-06. The state cited articles and other research mate-

rials, including those in the defendant’s own briefing. Id. at

305. The Supreme Court declined. It explained:

“To decide the matter of scientific validity and reliabil-

ity for the first time on review, we would be required to

decide based on judicial notice of legislative facts—that is,

nonadjudicative facts—used to determine the foundational

basis for admission of evidence.”

Cite as 310 Or App 255 (2021) 269

Id. The court declined to do so because the parties had

not been given a full opportunity to adduce the evidence

before the trial court, and because the court was uncertain

whether it had been advised of the full scope and nature of

the research on sexual grooming of children. Id. The court

would not determine on appeal what should have been deter-

mined in the trial court in the first instance.

Similarly, we decline to supplement the record with

new material offered on appeal. That is particularly so due

to the way in which the state chose to present Downing’s

testimony at the outset. In the pretrial hearing, defen-

dant’s initial objection was that notice had been too short

and time too short to have prepared to address testimony

if the state offered it as scientific testimony under the

Brown/O’Key standards. The state responded by charac-

terizing Downing’s testimony as nonscientific testimony.

Given that approach, the parties became concerned with

whether Downing’s testimony was expert, not whether it

was scientifically valid. It is doubtful that defendant had

an opportunity to adduce evidence contrary to a scientific

foundation for Downing’s testimony—particularly when the

state disclaimed the evidence was scientific. Although the

state hedged, saying that it could argue that the testimony

was valid under Brown/O’Key standards, the state offered

the testimony as nonscientific testimony. Because the state

took that position, the parties did not directly address

Brown/O’Key standards, and defendant was not on notice

of a need to address those standards. See Perry, 347 Or at

121-26 (reviewing standards in light of objections raised).

The record was not developed below to fairly present a ques-

tion whether the testimony could have a valid scientific

foundation.

Moreover, we are unsure, as was the court in Henley,

whether the secondary references offered in the state’s brief

serve to fully advise us of the scope of research into the var-

ious behavior of domestic violence victims. During her pre-

trial testimony, Downing allowed that research has shown

that all victims are different and that it is a myth that one

can reliably predict how a victim will react in any given

situation.

270 State v. Bolton

Unlike Marrington, Perry, or Henley, the trial court

here did indicate, albeit somewhat incidentally, that the

record did not suffice to support Downing’s testimony as sci-

entific evidence. The state contends that Downing’s 25 years’

experience with thousands of victims of domestic violence

should suffice to permit her to provide scientific testimony

about victims’ counterintuitive behavior. Defendant responds

that the state addresses one factor among the Brown/O’Key

standards—the expert’s education and training—but little

else. See Brown, 297 Or at 417 (qualifications as one of seven

factors); see also O’Key, 321 Or at 303-04 (listing four addi-

tional factors). Defendant has the better argument.

Because the state presented Downing’s testimony in

the trial court as nonscientific, the state did little or nothing

to provide a scientific foundation for Downing’s opinions on

counterintuitive victim behavior. The record is quite unlike

the foundation laid in Perry where the doctor’s narrow opin-

ion about delayed reporting was couched in terms of special-

ized training, professional journals, and peer-reviewed lit-

erature. 347 Or at 113-14. The record here does not address

general acceptance in the field of Downing’s opinions on the

patterns of behavior for abusers and victims, the existence

of specialized literature in the field, the extent to which her

opinions rely on subjective interpretations, the variation

or consistency of opinions on the characteristic behavior

of abusers and victims, or the general acceptance of those

views in the professional literature in the field. See Brown,

297 Or at 417 (factors); O’Key, 321 Or at 303-04 (factors);

see also State v. Southard, 347 Or 127, 133-34, 218 P3d 104

(2009) (not all factors will apply). In short, the trial court

did not err in determining that Downing’s testimony would

not be admissible as scientific evidence based on the limited

foundation provided.

As in Henley, 363 Or at 286, and in Marrington, 335

Or at 566, the error in admitting Downing’s testimony as

nonscientific was not harmless. The judgment of conviction

must be reversed and remanded.

Reversed and remanded.