State v. Miller

No. 103 February 19, 2026 145

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAVID DOUGLAS MILLER,

Defendant-Appellant.

Lane County Circuit Court

20CR40401; A182292

Debra E. Velure, Judge.

Submitted April 21, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Neil Francis Byl, Deputy Public Defender,

Oregon Public Defense Commission, filed the brief for

appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Lauren P. Robertson, Assistant

Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Hellman, Judge, and

O’Connor, Judge.

ORTEGA, P. J.

Affirmed.

146 State v. Miller

ORTEGA, P. J.

Defendant appeals a judgment of conviction for

third-degree sexual abuse, asserting two assignments of

error. First, he assigns error to the trial court’s denial of

his motion for a mistrial after a witness testified that defen-

dant had asked her—an Oregon Department of Human

Services (ODHS) caseworker—if he should get an attorney.

Defendant argues that the trial court’s actions—striking the

testimony and providing a curative instruction directing the

jury to disregard it—were not sufficient to cure actions that

deprived him of his right to a fair trial. Second, defendant

assigns error to the trial court’s admission of expert tes-

timony about offender manipulation strategies (sometimes

termed “grooming” evidence). The trial court admitted the

evidence to help the jury “understand why a child might * * *

act[ ] counterintuitively” by not making an immediate 9-1-1

call when defendant—her grandfather—touched her sexu-

ally, and why she had not previously reported him touching

her in ways that made her uncomfortable. We conclude that

the trial court did not err in either respect and affirm.

FACTUAL BACKGROUND

We begin with an overview of the evidence to pro-

vide some general background, and we provide more detailed

background and context that is pertinent to the first assign-

ment of error. We will provide more background and context

as pertinent to the second assignment of error in the discus-

sion of that assignment.

Defendant is H’s grandfather. He was living with

his wife in a camper van on the same property as H and her

family when H was 16 years old. H had two younger broth-

ers who lived there with her.

At one point after defendant moved to the property,

defendant bought H a laptop computer despite H’s mother

telling him not to. According to H, defendant also some-

times provided H with marijuana and smoked it with her.

H testified at trial about an occasion when she

and defendant were on a road trip to the coast. Defendant

put his hand on H’s thigh and told her that he loved her. H

Cite as 347 Or App 145 (2026) 147

was uncomfortable, but told defendant that she loved him,

too. A few days later, when defendant again touched her

thigh, H felt uncomfortable and told defendant to stop. On

another occasion, defendant asked H to get something for

him out of the back of a van. While she was reaching for it,

he “smack[ed]” H’s butt. H thought her brother was respon-

sible, and she slapped him. Defendant laughed and said that

he was the one who had done it. H said, “I hate you for this,”

and defendant apologized.

H testified that, on the evening that led to the charge

in this case, she was with defendant, her cousin, and her

cousin’s friends in defendant’s camper van. After the cousin

and her friends left, defendant and H wanted to smoke

marijuana. H proposed that they smoke in the kitchen, but

defendant wanted to smoke in H’s room inside the house,

so that is where they went. It was very unusual for them to

smoke there; usually, they would smoke outside on the porch

or in the kitchen. H’s brothers were home, but one was play-

ing video games in the living room and the other was asleep.

H sat on her bed, and defendant came in and sat

right next to her, facing her. Defendant and H smoked mari-

juana and listened to music. Defendant began touching H,

explaining that he was doing it “to calm [her] down and

try to relax” her so she would “not be so stressed out about

everything.” Defendant also told H that she should close

her eyes “and act like it’s not even him doing it.” Defendant

started by rubbing her thighs, then moved his hands up her

leg, pushing up her shorts so that he could rub her vaginal

area, “as much as he wanted.”

After doing this for about thirty minutes, defendant

went outside to smoke a cigarette. While he was gone, H cov-

ered her legs with a blanket, tucking it under her legs in hopes

of preventing defendant from reaching under it. Defendant

returned to the bedroom and pushed his hand under the blan-

ket so that he could resume touching H’s thighs and vaginal

area. After a while, he left again, and H put on sweatpants

and covered herself again with the blanket.

When defendant returned and discovered that H had

put on sweatpants, H noticed that he looked “very frustrated,

148 State v. Miller

like he was really angry” with her for “trying to cover * * *

up.” Defendant then began groping H’s breast by reaching

through the armhole of her tank top and pulled her nipple,

which she testified was painful. Defendant continued groping

her breast for about 20 minutes. Then defendant stopped and,

as he left the room, told H she was “his favorite girl.”

While all of that was happening, H “wanted to die”

and “didn’t want to be on this planet anymore.” She felt dis-

gusted by herself. She had thought she “was loved by [her]

grandpa, and then it just proved to [her] that, no, [she] was

not.” She was also worried that her whole family would think

that it was her fault, that she was being “a slut.” She worried

in particular about what her grandmother would think.

H called a friend, Jason, and told him what had

happened. She was still on the phone with Jason when

defendant came back into her room. Without hanging up, H

hid her phone under a pillow. Defendant told her in a stern

voice not to tell anyone what he did. H was afraid of what

would happen if she told anyone. She was 4’11”, and defen-

dant was a “big person” who had been in the military; H

knew he could physically overpower her.

Nevertheless, H told Jason by text and in a phone

call what had happened, and also told her cousin, C, either

the same night or the next day.

The next morning, H told her grandmother what

had happened. She considered her grandmother to be her

best friend. Her grandmother said, “Don’t worry, he does

this, I will talk to him about it.” H then told her mother what

had happened, and her mother told her to go wait in her

room. Her mother then confronted defendant and told him

to move off the property. Neither H nor her mother called

the police or contacted ODHS at that time.

DENIAL OF MISTRIAL

About two weeks later, someone made an anony-

mous report to ODHS, and the agency conducted an assess-

ment. An ODHS case worker, Biehler, interviewed H, who

was worried about the repercussions of her marijuana use;

she did not want her mother to get in trouble or to be taken

Cite as 347 Or App 145 (2026) 149

away from her mother “for a situation that [her mother]

didn’t cause.” H confirmed to Biehler that defendant had

touched her private parts, and Biehler did not discuss those

allegations further with H. She explained that it is ODHS

practice that once the person performing the child wel-

fare assessment has probable cause that sexual abuse has

occurred, they do not discuss it further but instead arrange

for the child to go to a children’s advocacy center for a child

abuse assessment.

At trial, Biehler testified about speaking with defen-

dant as part of her child welfare assessment. She spoke with

defendant outside his home, on the porch. At the time, police

had not contacted defendant; no police were present during

the interview with Biehler, and she did not refer to criminal

charges. Biehler testified that she explained to defendant

that she was there because of allegations that he had pro-

vided marijuana to H and that he had touched her private

parts. Defendant denied doing either of those things.

Biehler testified that it was “an odd interview”

because defendant “seemed very relaxed” and “didn’t appear

to be shocked or upset” by what she was asking him. She

explained that “[m]ost people kind of freak out, and they get

really defensive. And I’m not saying he should act like most

people, but it still was—it threw me for a little bit.” At one

point, defendant told Biehler that H’s brothers had been in

and out of the room when he and H were together in her bed-

room. Biehler asked defendant, “[W]hat would you think if I

told you the boys said they weren’t in and out of the room?”

Defendant responded that he did not know what to say.

Asked to characterize defendant’s responses to her

questions, Biehler answered that defendant did not have “an

answer for any of it.” She said, “He just kept saying, [’]I didn’t

touch her private areas.[’]” The portion of the direct exam-

ination that led to the motion for a mistrial occurred next:

“[Prosecutor:] Okay. And then can you tell us about

the end of the conversation?

“[Biehler:] That was—that was—never had asked

before. He asked me if he should get an attorney. And I

said, why would you need an attorney?

150 State v. Miller

“[Defense Counsel Plummer:] Sorry. Your Honor, could

we have a moment?

“[Defense Counsel Tinker:] I’m going to also ask to

strike that.”

Defense counsel clarified that they had an objection and a

matter for the court.

Outside the presence of the jury, the parties made

arguments to the court:

“[Defense Counsel Tinker:] Your Honor, at this time,

I would be—I’m moving for a mistrial. I think this is per

se grounds—just on the—on the statement, alone, [of]

Ms. Biehler * * * that she’s saying that [defendant] had

requested an attorney. * * * I don’t think the jury can

unhear what she just spoke about. So at this time, I’m ask-

ing for a mistrial.”

The prosecutor asked for a few minutes to do some legal

research, and the court agreed.

After a 30-minute recess, the court reconvened, still

outside the presence of the jury. Defense counsel argued that

it had been clear for decades, under both state and federal

constitutions, that the prosecution may not elicit testimony,

purposely or not, that reveals the invocation of the right to

an attorney. Defense counsel contended that the court had to

determine whether, in context, a curative instruction could

be sufficient to address the error, which would involve an

examination of whether the invocation of the constitutional

right raises an inference that the right was invoked because

the person is guilty, and whether that inference is likely to

be drawn by the jury.

The court asked whether the “invocation of the

right to counsel” had to be “unequivocal.” Defense counsel

contended that it did not, emphasizing that the question is

whether the testimony creates “an impermissible inference

that the person is asking for an attorney * * * because they

are guilty[.]” Defense counsel then went on to characterize

the context of the testimony, arguing that Biehler had testi-

fied that defendant’s conduct was

“evasive, or he acted weird. I’ve never seen anyone do this

before. You know, kind of going on at some length about

Cite as 347 Or App 145 (2026) 151

how odd she found his affect, which, frankly, I thought was

borderline inappropriate testimony as it was.

“And then to follow up and say, oh, well, and then he

asked me whether I should get an attorney. It—it’s such

an obvious inference in that context that he’s asking for an

attorney because he’s guilty. She said he never provided an

explanation. He couldn’t answer questions. Usually people

freak out. He didn’t do that.

“* * * * *

“The clear inference of that, that the jury is going to

draw, and that the witness is implying very directly is that

he’s guilty. He has something to hide. So I think in that

context, it’s prejudicial. It cannot be cured with a curative

instruction, and a mistrial is required at this point.”

The state disagreed, arguing that testimony

describing that someone “not involved in the criminal pro-

cess” possibly wanted an attorney could not be considered

testimony about an “invocation” of the right to counsel. She

emphasized that there were no police present, that police

had not contacted defendant about the allegations, and that,

at that point, defendant did not even know whether the alle-

gations had gone to the police at all. The state opposed the

motion for mistrial, but it agreed with the court that a cura-

tive instruction would be appropriate.

The trial court denied the motion for a mistrial and

began crafting a curative instruction. It noted that it would

strike the testimony, and that it was important to provide

the curative instruction immediately. Ultimately, the court

gave the following instruction to the jury:

“THE COURT: * * *. So I need to start off here and

explain that, outside the presence of the jury, I have sus-

tained an objection, and I am striking testimony that was

just made by this witness.

“This witness testified regarding a statement from

[defendant] related to a request for counsel. That is abso-

lutely inappropriate for you all to consider in any way in

your deliberations. It is not an indication of guilt or inno-

cence of the Defendant and should not be used in any fash-

ion. You must disregard that statement and not use it in

any way in arriving with your decision today. I see you all

152 State v. Miller

nodding and understanding that instruction. So with that,

we’ll go ahead and continue with the direct examination of

this witness.”

The prosecutor then resumed direct examination of Biehler

on a different topic.

We review the denial of a motion for a mistrial for

abuse of discretion and will reverse only if the defendant

was denied a fair trial. State v. Veatch, 223 Or App 444, 455-

56, 196 P3d 45 (2008). Witness testimony about a defendant

exercising a constitutional right (such as the right to coun-

sel) may lead to the denial of the right to a fair trial if, in

context, the jury was likely to infer a defendant’s guilt from

their exercise of the constitutional right.1 Id.; see also State

v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den,

434 US 849 (1977) (affirming denial of a motion for a mis-

trial after concluding that the jury was not likely to draw

adverse inferences of guilt under the circumstances). Our

examination includes “the context in which defendant made

1

On appeal and before the trial court, defendant has referred to the testimony

about his inquiry regarding whether he should get a lawyer as an “invocation” of a

constitutional right, or as “invoking” the right to counsel. Typically, a defendant’s

question about whether they should get a lawyer, or need a lawyer, does not con-

stitute an invocation of the right to counsel. See, e.g., State v. Scott, 317 Or App

777, 786, 505 P3d 1007 (2022) (“We consider whether defendant’s question about

whether she should ask for a lawyer was an invocation of her right to counsel and

readily conclude that it was not.”); State v. Reed, 299 Or App 675, 686, 452 P3d 995

(2019), rev den, 366 Or 382 (2020) (holding that the defendant did not invoke the

right to counsel when he asked an officer, “Do I need a lawyer?”). Nevertheless, our

case law suggests that the circumstances of invocation of the right to counsel may

not be coextensive with the circumstances in which we must determine whether

a defendant was denied a fair trial given witness testimony that a defendant

exercised, or attempted to exercise, a constitutional right. See State v. Swanson,

293 Or App 562, 565 n 1, 429 P3d 732 (2018) (declining to “express an opinion

on whether, even if the right [to counsel] had not attached, the * * * testimony

was nonetheless impermissible”); see also State v. House, 282 Or App 371, 375

n 3, 385 P3d 1099 (2016) (noting that in State v. Schiller-Munneman, 359 Or 808,

813, 377 P3d 554 (2016), the Supreme Court expressly left open the question of

whether a defendant’s invocation of the right to silence during police questioning

could be admitted as substantive evidence at trial when the defendant was not in

custody or compelling circumstances, and accepting parties’ assumption that the

state nonetheless was not permitted to draw attention to the defendant’s silence).

In this case, we assume without deciding that Biehler’s testimony was a refer-

ence to which the latter analysis applies, whether or not defendant’s question,

as recounted by Biehler, constituted an “invocation” of the right to counsel. We

consider whether Biehler’s testimony led to a prejudicial inference about defen-

dant exercising a constitutional right. In doing so, we may consider the particular

wording recounted in the testimony to be relevant to the analysis.

Cite as 347 Or App 145 (2026) 153

[the] statement, the context in which that statement was

introduced at trial, and the content or absence of any cura-

tive instruction.” State v. Swanson, 293 Or App 562, 565-66,

429 P3d 732 (2018).

Evidence about a defendant’s exercise of the consti-

tutional right to counsel is generally inadmissible. A defen-

dant is entitled to a mistrial where such evidence is adduced

and the jury is likely to draw an inference that the defen-

dant invoked the right to counsel because they were guilty,

if a curative instruction could not remedy that under the cir-

cumstances. State v. Schumacher, 315 Or App 298, 301, 500

P3d 698 (2021). If the context does not make an inference of

guilt likely, however, it is not an abuse of discretion for the

trial court to deny a motion for a mistrial. Veatch, 223 Or

App at 456.

On appeal, defendant argues that Biehler’s testi-

mony was highly prejudicial and that the jury would likely

draw an inference of guilt given its context. Biehler noted

that defendant had been relaxed and had not reacted with

shock or defensiveness when she told him of the accusations,

but that he “didn’t have an answer for any of it.” Defendant

characterizes that testimony as “suggest[ing] that [he] was

acting suspiciously” and argues that Biehler “confronted

defendant with her knowledge that H’s brothers had said

they were not in and out of the room.” Considering the con-

text, defendant contends, the jury was likely to infer that

defendant exercised his right to counsel because he was

guilty.

The state argues in response that the context made

it less likely for the jury to draw any unfavorable infer-

ence from Biehler’s testimony about defendant’s question.

Specifically, defendant spoke with Biehler voluntarily and

did not bring up the question about getting an attorney at a

time or in a way that suggested he wanted to avoid answer-

ing questions. He asked the question at the conclusion of the

conversation and, at that point, had consistently denied the

allegations throughout the interview. In addition, Biehler

was an ODHS caseworker completing a safety assessment

for a child, not a police officer investigating a criminal

offense.

154 State v. Miller

Ultimately, we agree with the state that, in con-

text, it was not likely that the jury would draw an inference

of guilt from the reference to defendant’s right to counsel.

Defendant was at home on his front porch, talking to an

ODHS case worker. She described him as relaxed, and he

had consistently denied the allegations. He had not been

contacted by police and police did not accompany Biehler.

Defendant did not affirmatively assert the right to counsel

to stop the interview or to obtain assistance in dealing with

ODHS; rather, he asked Biehler’s opinion about whether he

should get an attorney. In context, one inference that could

be drawn, which is consistent with both guilt and innocence,

is that defendant asked the question to try to gauge whether

Biehler believed him or not, and to get a sense of what he

might expect to happen next.

Further, the context of the testimony about defen-

dant’s question did not make an inference of guilt more

likely. In general, Biehler’s testimony explained how H came

to the agency’s attention and the course of its investigation.

H had already testified about disclosing the abuse to her

mother and grandmother the day after it happened, and her

brother and her mother also had already testified. Nothing

about the trial context contributed to the likelihood that the

jury would draw an inference of guilt from Biehler’s testi-

mony about defendant’s question.

Finally, we consider the context and content of the

curative instruction, which was given immediately after the

jury returned, and which explained that it was “absolutely

inappropriate” for the jury “to consider in any way” the tes-

timony relating to defendant and “a request for counsel.”

The court expressly instructed the jury that a request for

counsel “is not an indication of guilt or innocence” and that

it “should not be used in any fashion.” As the court explained

that the jury “must disregard” the testimony, it commented,

“I see you all nodding and understanding that instruction,”

suggesting that the court saw signs that the jury under-

stood and acknowledged the principle that an exercise of the

right to counsel must not be used to infer guilt. See State v.

Wright, 323 Or 8, 12, 913 P2d 321 (1996) (“The trial judge is

in the best position to assess the impact of the complained of

Cite as 347 Or App 145 (2026) 155

incident and to select the means (if any) necessary to correct

any problem resulting from it.”).

In sum, in the circumstances in which defendant

mentioned getting a lawyer, and the circumstances in which

Biehler mentioned it in her testimony, it was not likely that

the jury would draw an inference that defendant inquired

about getting a lawyer because he was guilty. And, the

court striking the testimony and delivering a timely cura-

tive instruction was sufficient to protect defendant’s right

to a fair trial. The trial court did not abuse its discretion by

denying the motion for a mistrial.

ADMISSION OF EXPERT TESTIMONY

The state moved in limine to admit expert testi-

mony about offender manipulation strategies to explain

the dynamics of the relationship between an abuser and a

child. Specifically, the state planned to offer the testimony

to explain delays in reporting and how the dynamics of the

relationship between an offender and a child can affect

how the child perceives the abuse, how they might disclose

abuse, and how a child might come to “accommodate” abuse.

The state relied chiefly on State v. Williams, 321 Or App 594,

517 P3d 308 (2022), in which we held that such testimony

is admissible for those purposes.2 After a hearing, the trial

court ruled that the evidence would be admissible for those

purposes. Before the expert was called as a witness, defen-

dant objected to the testimony, and the trial court overruled

the objection.

On appeal, defendant argues that the testimony was

not relevant for the purposes the state identified because

H did not delay reporting and because “the prior contacts

were not clearly sexual in nature.” The thrust of defendant’s

argument is that the purposes for which the expert testi-

mony was admitted in Williams are not served in this case.

That is, the state offered expert testimony on “grooming” in

Williams to explain a years’ long delay in reporting, and to

explain why the victims in that case would have engaged

2

At trial, the state noted that we had essentially already determined, in

Williams, that the evidence was admissible scientific evidence and that the expert

the state called at trial, Schumann, was qualified to testify as an expert. When

Schumann testified as an expert in Willams, her last name was Satterwhite.

156 State v. Miller

in the “bizarre” behavior of continuing to have a close rela-

tionship with the defendant despite ongoing sexual abuse.

By contrast, defendant argues that the facts in this case

are so different that there is nothing to explain—H did not

delay reporting and her behavior in continuing to have a

close relationship with defendant was not “bizarre” because

the prior instances of touching that made her uncomfortable

were not severe abuse.

The state responds that the testimony was relevant

to explain various aspects of H’s behavior, such as the way

she disclosed the abuse and to whom, and how an offend-

er’s strategies of giving a child attention, gradually desen-

sitizing the child to contact and sexual touch and to vio-

lating social norms and rules—such as providing the child

with drugs—can discourage reporting. Schuman testified

that people outside her field often do not understand how

the grooming strategies and dynamics related to disclosure

can intermingle, and they may have different expectations

about how victims of abuse should act.

We review relevancy determinations under OEC

401 for errors of law and we review OEC 403 balancing for

abuse of discretion. Williams, 321 Or App at 608.

The trial court admitted the evidence after con-

cluding that it was relevant to “explain and contextualize

disclosure behaviors, and it would be helpful to the jury on

that issue including by providing possible explanations for

the * * * child’s behavior and decision making process.” The

court noted specifically that the jury could view H as “acting

counterintuitively” by “not immediately calling 9-1-1” when

defendant was sexually abusing her or wonder why she did

not tell anyone about defendant touching her thighs in ways

that made her uncomfortable. The court elaborated that

aspects of the way that H disclosed the abuse could lead to

an inference that the abuse did not occur, and the evidence

at issue could provide the alternative explanation that she

was “responding to a particular victim offender dynamic.”

The court also expressly ruled that the evidence was not

admissible to show that defendant engaged in grooming

conduct and therefore must be a sexual offender.

Cite as 347 Or App 145 (2026) 157

In State v. Henley, 310 Or App 813, 822-24, 486 P3d

853, rev den, 368 Or 496 (2021), we held that it was not error

to admit evidence “to explain the potential significance of

some of [the] defendant’s behavior,” and not to establish that

the defendant had groomed the victim and therefore had sex-

ually abused her. Defendant argues essentially that the evi-

dence about offender manipulation strategies and disclosure

dynamics was inadmissible here because H’s behavior was

not so “bizarre” that it required explanation. We disagree

with that formulation. Such evidence can help to explain

behavior that would be counterintuitive in practically any

other context. Although H disclosed the abuse to multiple

people in her life quickly, she did not report it to police or

child welfare. When someone else reported the abuse to child

welfare anonymously and the agency contacted her, H was

worried that she might be removed from her mother’s home

if she disclosed that defendant had provided her with mari-

juana. An understanding of the dynamics could also help

to explain not only why H did not contact law enforcement,

but also why she did not leave when defendant was sexually

abusing her in her room. It might be viewed as counterin-

tuitive that she took incremental steps to try to frustrate

his ability to abuse her—first covering her lower body with

a blanket, then putting on sweatpants—rather than taking

more drastic steps. The evidence at issue was relevant to

evaluating the victim’s behavior.

To the extent that defendant challenges the sci-

entific validity of the evidence at issue, we have already

decided that issue, and we are not persuaded that there is

any meaningful difference between the cases establishing

that and this case. Henley, 310 Or App at 822-24; Williams,

321 Or App at 620-21; State v. Perry, 347 Or 110, 121-26, 218

P3d 95 (2009).

Finally, defendant argues that the offender manip-

ulation and disclosure dynamics evidence should have been

excluded under OEC 403. OEC 403 requires that evidence

be excluded if the probative value of the evidence is sub-

stantially outweighed by the danger of unfair prejudice.

We review the trial court’s OEC 403 ruling for abuse of

discretion.

158 State v. Miller

We conclude that the trial court acted within its dis-

cretion when it admitted the evidence. The evidence had sub-

stantial probative value because it could suggest an expla-

nation and context for some of the events at issue, including

the dynamics of the relationship between defendant and H

and how those dynamics might affect H’s behavior, includ-

ing not calling law enforcement when she was being abused

and the abuser left the room. At the same time, the danger

of unfair prejudice was low because the trial court limited

the testimony to general aspects of the grooming process,

as described in the literature, and there was no opinion

testimony about either defendant’s or H’s behavior in this

case. In addition, the trial court offered to provide a limiting

instruction if defendant wanted one.

The trial court did not abuse its discretion when it

ruled that the scientific evidence was admissible under OEC

403.

CONCLUSION

The trial court did not err by denying defendant’s

motion for a mistrial, or by admitting expert testimony about

offender manipulation strategies and disclosure dynamics,

or “grooming” evidence. Accordingly, we affirm the trial

court’s judgment.

Affirmed.