State v. Henley

813

Argued and submitted January 29, affirmed April 21, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

ROBERT LEWIS HENLEY,

aka Sonny Henley,

Defendant-Appellant.

Malheur County Circuit Court

09072338C; A170383

486 P3d 853

Defendant was convicted of first-degree sexual abuse, ORS 163.427, and

attempted first-degree sodomy, ORS 163.405, for acts committed against his

11-year-old stepdaughter. On review, the Supreme Court held that a forensic

interviewer’s testimony regarding “grooming” of children for sexual abuse con-

stituted scientific evidence under OEC 702, such that the trial court erred in

not requiring the state to establish a scientific foundation for the evidence. On

remand, the trial court determined that the evidence had a sufficient scientific

foundation to be admissible under OEC 702, and it reentered defendant’s convic-

tions. Defendant appeals, challenging the admission of the grooming testimony

under OEC 401 (relevance), OEC 403 (unfair prejudice), and OEC 702 (scientific

validity). Held: Given the procedural history of this case, the trial court did not

err in limiting the remand proceeding to addressing the scientific validity of the

grooming evidence to determine its admissibility under OEC 702. Nor did the

trial court err in determining that the state had proved its scientific validity.

Affirmed.

Gregory L. Baxter, Judge.

Mary M. Reese, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Jordan R. Silk, Assistant Attorney General, argued the

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

Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

AOYAGI, J.

Affirmed.

814 State v. Henley

AOYAGI, J.

This case is before us for the second time. Defendant

was convicted of first-degree sexual abuse and attempted

first-degree sodomy. The victim was his 11-year-old step-

daughter. On review of the first judgment of conviction, the

Supreme Court held that a forensic interviewer’s testimony

regarding “grooming” of children for sexual abuse consti-

tuted scientific evidence under OEC 702, such that the state

was required to establish a scientific foundation for it. State

v. Henley, 363 Or 284, 304, 422 P3d 217 (2018). Because

the trial court had viewed the testimony as nonscientific, it

failed to “determine whether sexual grooming evidence pos-

sesses the requisite level of scientific validity and reliability

for admissibility under OEC 702.” Id. at 307. The Supreme

Court declined to decide that issue in the first instance, as

the trial court was “best suited for the development of the

evidentiary record concerning admissibility.” Id. at 306-07.

The matter was therefore remanded to the trial court for

further proceedings. Id. at 310.

On remand, the trial court held a Brown/O’Key

hearing. See State v. O’Key, 321 Or 285, 899 P2d 663 (1995);

State v. Brown, 297 Or 404, 687 P2d 751 (1984). Based on

the evidence admitted at that hearing, the trial court con-

cluded that the concept of grooming to which the witness

testified had “a sufficient level of scientific validity to qualify

for admission at trial,” such that it was properly admissible

under OEC 702. Accordingly, the court reentered defendant’s

convictions for first-degree sexual abuse and attempted

first-degree sodomy. Defendant appeals, again challenging

the admission of the grooming testimony. For the following

reasons, we affirm.

SCOPE OF APPEAL

We must first address the scope of this second

appeal. In his first appeal to us, defendant challenged the

admission of the grooming testimony on multiple grounds.

He argued that the trial court erred in admitting it because

the witness was not qualified to testify about grooming,

because the state had failed to lay a scientific foundation

under OEC 702, because the testimony was not relevant

under OEC 401, and because the testimony was unduly

Cite as 310 Or App 813 (2021) 815

prejudicial under OEC 403. State v. Henley, 281 Or App

825, 826, 386 P3d 126 (2016), rev’d, 363 Or 284, 422 P3d 217

(2018); see also State v. Southard, 347 Or 127, 133, 218 P3d

104 (2009) (recognizing that, to be admissible, scientific evi-

dence must be relevant (OEC 401), it must possess sufficient

indicia of scientific validity (OEC 702), and its probative

value must not be substantially outweighed by any unfairly

prejudicial effect (OEC 403)). We rejected each of those chal-

lenges, either on the merits or as unpreserved. Henley, 281

Or App at 831, 834.

Defendant sought Supreme Court review only on

the OEC 702 issue. The question presented to the Supreme

Court was whether the admitted testimony about grooming

“constitute[d] scientific evidence and so require[d] a founda-

tional showing under OEC 702.”1 That was the only issue

that the court considered. See Henley, 363 Or at 286 (“In this

criminal case arising out of allegations of child sexual abuse,

the issue is whether the expert testimony that the trial court

allowed about ‘grooming’ children for later sexual activity is

‘scientific’ evidence that requires a foundational showing of

scientific validity under OEC 702.”). The court ultimately

agreed with defendant that the testimony was scientific in

nature and therefore required a scientific foundation under

OEC 702. Id. at 304. It reversed and remanded for the trial

court to determine, after appropriate development of the

record, whether the testimony possessed the requisite level

of scientific validity for admissibility under OEC 702. Id. at

307, 310.

Consistent with the foregoing sequence of events,

on remand, the trial court held a Brown/O’Key hearing to

determine whether the grooming testimony admitted over

defendant’s objection was scientifically valid. Relying on evi-

dence offered by the state, the trial court ruled that it was,

concluding that “the concept of grooming possesses a suffi-

cient minimum level of scientific validity to be admissible

1

In his petition for review, defendant posed a second question that put a

constitutional gloss on the OEC 702 issue—whether the admission of scien-

tific evidence without adequate testing of its validity violates due process—

but he did not pursue the due-process angle in his Supreme Court merits

briefing.

816 State v. Henley

as scientific evidence under OEC 702.” The court then reen-

tered defendant’s convictions.

On appeal from the resulting judgment, defendant

contends that the trial court erred in its OEC 702 ruling,

an issue that we address shortly. However, that is not all.

Defendant also seeks to revisit other challenges to the

admission of the grooming testimony that we considered

and rejected in his first appeal. Specifically, he argues that

the testimony should have been excluded as lacking rele-

vance under OEC 401 and as substantially more unfairly

prejudicial than probative under OEC 403. We reject those

arguments. In the first appeal, we already rejected defen-

dant’s claims of error regarding OEC 401 and OEC 403 as

unpreserved, and the Supreme Court did not grant review on

those issues, address them in its opinion, or include them in

the scope of the remand. Had the trial court ruled correctly

on defendant’s trial objection in the first instance (back

in 2009), its ruling would have been limited to OEC 702,

because that was the objection made. If defendant believed

that we erred in the first appeal in ruling that his claims

of error under OEC 401 or OEC 403 were unpreserved, or

if defendant believed that something about the particu-

lar posture of this case merited allowing him to raise new

OEC 401 or OEC 403 issues on remand despite not having

raised them in the original trial, then he should have raised

those matters in the Supreme Court. He did not. Under the

circumstances, we cannot say that the trial court erred in

limiting the remand proceedings to OEC 702.2 We similarly

limit our consideration to the OEC 702 ruling.

MERITS

Having determined the scope of this appeal, we

turn to the merits. Defendant argues that the state failed to

establish the scientific validity of the concept of grooming to

which the witness testified and that the trial court therefore

2

At the Brown/O’Key hearing, the state maintained that the only issue

before the trial court on remand was the grooming evidence’s scientific validity

under OEC 702, whereas defendant argued that the Supreme Court’s opinion

left open the possibility of revisiting the OEC 401 and OEC 403 issues. The trial

court implicitly agreed with the state regarding the scope of the remand, ruling

only on the OEC 702 issue.

Cite as 310 Or App 813 (2021) 817

erred in ruling that the testimony was admissible under

OEC 702. We review the admissibility of scientific evidence

for errors of law. State v. Branch, 243 Or App 309, 314, 259

P3d 103, rev den, 351 Or 216 (2011).

Evidence perceived by jurors to be scientific “pos-

sesses an unusually high degree of persuasive power.”

O’Key, 321 Or at 291. The trial court’s role is to ensure

that the persuasive appeal of such evidence is legitimate.

Id. Toward that end, when evidence is scientific in nature,

the court must determine that the evidence is scientifically

valid before admitting it. See id. at 292. In conducting that

analysis, the court is to keep in mind the purpose for which

the evidence is offered. State v. Perry, 347 Or 110, 122, 218

P3d 95 (2009); O’Key, 321 Or at 302, 307. Additionally, the

focus of the inquiry must be on principles and methodology,

not conclusions. Id. at 305. Weaknesses in a given scientific

study or errors in an expert’s analysis do not render scien-

tific evidence invalid; that is, they go to the weight of the

evidence, not whether the factfinder should be allowed to

hear it in the first place. Thoens v. Safeco Ins. Co. of Oregon,

272 Or App 512, 537, 356 P3d 91 (2015).

The Supreme Court has identified various nonexclu-

sive factors that may be relevant when assessing the scien-

tific validity of evidence under OEC 702. In Brown, the court

identified seven primary factors: (1) the technique’s general

acceptance in the field; (2) the expert’s qualifications and

stature; (3) the use which has been made of the technique;

(4) the potential rate of error; (5) the existence of specialized

literature; (6) the novelty of the invention; and (7) the extent

to which the technique relies on the subjective interpretation

of the expert. 297 Or at 417 & n 5. Then, in O’Key, the court

adopted four additional factors from Daubert v. Merrell Dow

Pharmaceuticals, 509 US 579, 112 S Ct 2786, 126 L Ed 2d

469 (1993)—the leading federal case on the validity of sci-

entific evidence—some of which overlap with the Brown fac-

tors: (1) whether the theory or technique in question can be

and has been tested; (2) whether the theory or technique has

been subject to peer review and publication; (3) the known

or potential rate of error and the existence of operational

standards controlling the technique’s operation; and (4) the

818 State v. Henley

degree of acceptance in the relevant scientific community.

O’Key, 321 Or at 303-04.

The Brown/O’Key factors are nonexclusive, not

every factor needs to be considered in every case, and no

single factor is decisive. See Southard, 347 Or at 134; Brown,

297 Or at 417 & n 5. Ultimately, determining whether evi-

dence is scientifically valid for purposes of OEC 702 is a

flexible process aimed at ascertaining the scientific valid-

ity of the principles underlying the evidence. O’Key, 321 Or

at 303. The Supreme Court has demonstrated that flexibil-

ity when faced with scientific evidence as to which of the

Brown/O’Key factors do not naturally fit. For example, in

Perry, 347 Or at 121, 123-26, the court addressed scientific

evidence about the phenomenon of “delayed reporting” of

child sexual abuse, relying on only the few factors that it

considered germane to conclude that the evidence was scien-

tifically valid. In Marcum v. Adventist Health System/West,

345 Or 237, 245-46, 193 P3d 1 (2008), the court declined

to use the Brown/O’Key factors at all, explaining that they

were not useful in evaluating the scientific basis for medical

causation testimony, which differed in nature from a partic-

ular technique or method.

Turning to the facts of this case, during defendant’s

criminal trial, the state called Palfreyman, a forensic inter-

viewer for CARES (Child at Risk Evaluation Services), to

testify about her interview of the victim. During that tes-

timony, the prosecutor asked Palfreyman if she had train-

ing regarding a concept called grooming, and she said yes.

Defendant objected to Palfreyman’s qualifications to tes-

tify about grooming and also objected to a lack of scientific

validity. Outside the jury’s presence, the prosecutor told the

court that he expected Palfreyman to testify that she had

learned through her training and experience to recognize

certain behaviors that could be considered grooming; to

give examples of those behaviors, such as buying things for

a child, treating a child differently, or touching a child in a

way that is not necessarily sexual to accustom the child to

being touched; and to identify anything from her interview

of the victim that might be considered grooming. Based on

that description, the court overruled defendant’s objection,

Cite as 310 Or App 813 (2021) 819

reasoning that the evidence was not scientific in nature and

did not require a scientific foundation.3

Palfreyman proceeded to testify that activities that

might be considered grooming would include spending time

together, allowing a child to do things the child’s parents do

not allow (such as play video games or use alcohol), giving a

child money, tickling, and massaging. She said that groom-

ing is done to build trust and weaken a child’s defenses. She

pointed to defendant’s massaging the victim down into her

chest area when she wanted a neck massage as something

that the victim had mentioned in her interview that could

be considered grooming. On cross-examination, Palfreyman

agreed that spending time with a child, reading to a child,

or taking a child for ice cream is not necessarily grooming,

stating, “It depends on your motives.” She testified that, if

the person is an outsider whose motive is to get into the

child’s circle of trust, “then that could be potential groom-

ing.” Palfreyman concluded her testimony about grooming

by confirming that whether any given behavior is grooming

is a matter of the person’s intent and that she had never

talked to defendant about his intent.

As previously discussed, on review, the Supreme

Court held that Palfreyman’s testimony was scientific in

nature and therefore required a scientific foundation to be

admissible under OEC 702. On remand, the state relied on

seven academic papers to establish the scientific validity of

the concept of grooming to which Palfreyman testified. Our

task on appeal is to determine whether the trial court erred

in ruling that that evidence sufficiently established a scien-

tific foundation for the testimony.

Preliminarily, we disagree with defendant that,

when the Supreme Court remanded to the trial court to

assess the scientific validity of the concept of grooming to

which Palfreyman testified—rather than deciding that issue

3

Because of the procedural history of this case, the trial court did not rec-

ognize the scientific nature of Palfreyman’s testimony and assess its scientific

foundation until long after trial. However, as we understand it, fundamentally,

the trial court’s task on remand was to reconsider its ruling on defendant’s OEC

702 objection. Therefore, we consider the ruling in the context that it would have

been made at trial, had the trial court correctly recognized the evidence as scien-

tific in nature.

820 State v. Henley

itself in the first instance—the court was implying that the

academic papers cited in the parties’ Supreme Court brief-

ing were inadequate as a matter of law to establish scien-

tific validity. It is true that the Supreme Court declined the

state’s suggestion to take judicial notice of those papers and

use them to affirm on the alternative basis that Palfreyman’s

testimony had a scientific foundation. Henley, 363 Or at

304-05. The court did so, however, because the parties

had “not been given a full opportunity to adduce evidence”

regarding scientific foundation and, relatedly, because the

court was “uncertain” about the completeness of the record.

Id. at 305-06. We do not read those statements to suggest that

the Supreme Court viewed the cited papers as inadequate

to establish scientific validity. We understand the court to

have remanded based on process concerns, irrespective of

the merits. Further, the fact that the parties eschewed the

opportunity to develop a fuller record on remand—the state

offered into evidence the same papers that it had discussed

in the Supreme Court, and defendant offered no evidence—

is neither here nor there. The point of the remand was to

give both parties a full opportunity to develop the record on

scientific validity. The parties did what they did with that

opportunity, and we must now review the trial court’s OEC

702 ruling on the record that was made.

In doing so, our task is somewhat complicated by

the fact that the record is silent as to the specific purpose for

which the trial court admitted the grooming evidence. Both

parties acknowledge that the purpose for which evidence is

offered is relevant in evaluating its scientific validity. Perry,

347 Or at 122 (“Before applying the multifactor test to the

evidence in question, it is important to restate the purpose

for which the scientific evidence was offered.”). That is, the

trial court necessarily evaluates whether the evidence is sci-

entifically valid for the purpose for which it is offered, not all

possible purposes. O’Key, 321 Or at 302 (“Simply put, the

scientific evidence must be pertinent to the issue to which

it is directed. ‘Scientific validity for one purpose is not nec-

essarily scientific validity for other, unrelated purposes.’ ”

(Quoting Daubert, 509 US at 591 (brackets in O’Key omit-

ted).)). At trial, however, defendant never objected to the rel-

evance of the grooming evidence—only to scientific validity

Cite as 310 Or App 813 (2021) 821

and to Palfreyman’s qualifications—nor did he make an OEC

403 objection that would have forced discussion of the evi-

dence’s probative value. And, because the trial court viewed

the evidence as nonscientific, it did not conduct an OEC 702

analysis at the time of admission. Due to that combination

of circumstances, the state was never put in the position of

having to articulate the specific purpose for which it was

offering the grooming testimony, and, relatedly, the trial

court never expressly stated the purpose for which it was

allowing it. The only specific comment that the court made

was that Palfreyman could not testify that, in interviewing

the victim, she saw signs of grooming and therefore diag-

nosed the victim as having been sexually abused.

Defendant conflates Palfreyman’s testimony—which

is what the trial court allowed over defendant’s OEC 702

objection—with the prosecutor’s closing argument—to which

the defendant did not object. As described by the Supreme

Court, the prosecutor made improper use of Palfreyman’s

testimony in closing, such that any error in admitting the

testimony was not harmless. Henley, 363 Or at 308-09.

However, we decline defendant’s invitation to retroactively

extrapolate from the prosecutor’s closing remarks the pur-

pose for which the trial court admitted the evidence much

earlier in the trial when defendant objected. Whereas the

harmlessness of any error in admitting the grooming tes-

timony requires a review of the entire record, determining

whether the trial court erred in overruling an objection must

be evaluated at the time that the objection was made. State

v. Prieto-Rubio, 262 Or App 149, 155, 324 P3d 543 (2014),

aff’d, 359 Or 16, 367 P3d 255 (2016).

The trial court cautioned as part of its OEC 702

ruling that Palfreyman could not diagnose the victim as

having been groomed and therefore sexually abused. And,

shortly after that ruling was made, Palfreyman herself

acknowledged that behavior identified as possible groom-

ing is meaningless without knowing the person’s intent.

Although the prosecutor later relied on improper logic in

using Palfreyman’s testimony in closing, see Henley, 363 Or

at 308-09, it is hardly unprecedented for a party to use evi-

dence in closing for a purpose other than that for which it

822 State v. Henley

was permissibly admitted. See Perry, 347 Or at 118 (a defen-

dant is responsible to object if the state uses evidence in

a manner that exceeds the scope for which the trial court

could permissibly admit it).

Here, on the record that exists, it is reasonable to

infer that the trial court admitted Palfreyman’s testimony

about the general concept of grooming only to explain the

potential significance of some of defendant’s behavior—

cf. State v. Etzel, 310 Or App 761, 771-73, 488 P3d 783 (2021);

State v. Swinney, 269 Or App 548, 552-55, 345 P3d 509,

rev den, 357 Or 743 (2015)—not to establish that defendant

had groomed the victim and therefore had sexually abused

her. That is consistent with what the trial court said when

ruling and with how Palfreyman testified immediately after

the court’s ruling, even though the prosecutor later cited the

evidence for an improper purpose in closing. It is also con-

sistent with how we described the admission of the evidence

in the first appeal in connection with discussing defendant’s

challenge to Palfreyman’s qualifications. See Henley, 281

Or App at 831 (stating that her “testimony about grooming

was helpful to assist the jury in understanding defendant’s

behavior leading up to the camping trip”).

With that in mind, we consider whether the evi-

dence admitted at the Brown/O’Key hearing on remand—

consisting of seven academic papers—adequately estab-

lished the scientific validity of the general concept of groom-

ing to which Palfreyman testified.

Per his reply brief, defendant “does not contest”

that “the behavioral science concept of grooming by offend-

ers, including ‘boundary testing,’ is well established,” nor

does he contest “that the methodology used to identify that

behavior—mostly interviewing—is a valid scientific tech-

nique.” His argument on appeal rests, instead, on the prem-

ise that the trial court admitted Palfreyman’s testimony for

forensic purposes and that that use of grooming evidence is

not scientifically valid.

We absolutely agree with defendant that the record

created at the Brown/O’Key hearing would not establish the

scientific validity of using the concept of grooming as foren-

sic evidence, e.g., to prove that someone engaged in sexual

Cite as 310 Or App 813 (2021) 823

abuse because they engaged in grooming-consistent behav-

iors. That is, if the trial court had admitted Palfreyman’s tes-

timony for the purpose of showing that defendant engaged

in behaviors that could be grooming and therefore sexually

abused the victim, we would conclude that the state failed

to establish scientific validity. But, as already explained, we

do not understand the trial court to have admitted the tes-

timony for that purpose.

For the purpose for which we understand the tes-

timony to have been admitted, we conclude that the trial

court did not err in ruling that the general concept of

grooming to which Palfreyman testified is scientifically

valid. The lack of expert testimony and the relatively small

record made at the Brown/O’Key hearing make it a closer

question than it might otherwise be. Cf. Perry, 347 Or at

122-26 (relying on expert testimony in evaluating the scien-

tific validity of evidence about delayed reporting of child sex-

ual abuse). We also note that the state relies heavily on case

studies, but that is essentially unavoidable in this context.

See id. at 113-14 & n 3 (recognizing descriptive case-study

methodology employed in researching the phenomenon of

delayed reporting of child sexual abuse and noting that con-

trolled studies in the field of child sexual abuse research

would flagrantly violate medical ethics).

As in Perry and Marcum, the Brown/O’Key factors

are not a great fit for the type of evidence at issue here,

requiring a more flexible approach. The factors that we do

consider relevant are similar to those on which the court

relied in Perry, 347 Or at 123-26: general acceptance in the

field, the existence of specialized literature, and indicia that

Palfreyman’s approach was not unduly novel or improperly

subjective. Ultimately, however, we hark back to the “funda-

mental question of the scientific validity of the general prop-

ositions utilized by the expert,” which is what underlies the

various considerations and factors described in Brown and

O’Key. Marcum, 345 Or at 245. Doing so, we agree with the

state that the seven academic papers admitted at the Brown/

O’Key hearing sufficiently established the scientific validity

of the general concept of grooming to which Palfreyman

testified. That is, the state adequately established that

Palfreyman’s testimony was not grounded in “bad science”

824 State v. Henley

of the sort that requires exclusion under OEC 702. Id. at 244

(stating that, in performing the “vital role of gatekeeper”

under OEC 702, the trial court is to screen “proffered scien-

tific 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 con-

fusing, misleading, erroneous, prejudicial, or useless (inter-

nal quotation marks omitted)).

In sum, the trial court did not err in ruling that

Palfreyman’s grooming testimony had a sufficient scientific

foundation to be admissible under OEC 702 and, therefore,

reentering defendant’s convictions.

Affirmed.