State v. Stafford

DE MUNIZ, J.,

dissenting.

I agree with the lead opinion that Knapp’s testimony here was not scientific evidence. However, I also agree with Judge Landau’s position that the testimony should not have been admitted and requires reversal, although I do not agree with his analysis leading to that conclusion.

In my view, it is unnecessary to reach the dispute as to whether the evidence was scientific evidence. Irrespective of whether the offered testimony is deemed evidence based on “specialized knowledge” or “scientific” evidence, the first question to resolve is whether the evidence is relevant. Unlike the lead opinion, I conclude that it is not.

The Supreme Court noted in State v. Hansen, 304 Or 169, 175 , 743 P2d 157 (1987):

“In State v. Brown, 297 Or 404 , 687 P2d 751 (1984), this court explained that the admissibility of expert testimony must be evaluated in essentially the same manner as other evidence, with particular reference under OEC 401 to the testimony’s relevance and under OEC 403 to the danger that the testimony might unfairly prejudice the opposing party. Id. at 409, 415-18 .”

And in State v. O’Key, 321 Or 285, 298 , 899 P2d 663 (1995), where the issue was the admissibility of the “scientific” evidence of the nystagmus test, the court reiterated that the first step in determining admissibility is relevance:

*469 “Once the testimony is determined to be relevant under OEC 401, helpful under OEC 702, and not barred by OEC 402, it will be excluded only if its probative value is substantially outweighed by one or more of the countervailing factors set forth in OEC 403[.]” (Emphasis added.)

In Hansen , the defendant, a high school teacher, was indicted for sodomy with one of her students. 304 Or at 171 . On direct examination, the student testified to originally denying sexual relations with the defendant. Id. at 173 . To explain the student’s initial denial, the state then presented the “expert” testimony of Detective Robson, who testified, based on his experience in investigating child sexual abuse cases, that offenders engaged in a “grooming process” and what that process included. Id. at 174 . 1

On appeal, the Supreme Court held that Robson’s testimony “did nothing to explain the student’s initial denial of sexual relations with defendant”:

“The only other possible ground [on which the evidence would be admissible] would be as evidence that defendant had sexual relations with the student, but the relevance of the testimony for this purpose is practically nil. Detective Robson testified to what might be described as a ‘profile’ of a nonviolent child abuser who is unrelated to the child: physical and psychological ‘testing5 of the child, giving gifts, showing affection, praising, making the child feel comfortable in the abuser’s presence, etc. That child abusers use these techniques has no bearing on whether a person who does these things is a child abuser.” Id. at 175-76 .

I am not persuaded by the lead opinion that that reasoning does not apply here. Knapp testified that, in preparing a child for “sexual victimization,” the offender gets close to the child, creates a relationship, buys gifts, becomes a confidante and engages in “varying degrees of touching.” The only relevance *470 of that testimony was as evidence that defendant’s touching was sexual. However, as in Hansen , that abusers engage in touching as part of their grooming has no bearing on whether defendant is an abuser.

The state contends, however, that Hansen “does not mean that an expert may never describe techniques used by offenders to break down resistance[.]” 2 Even if that is so, that observation does not negate that, under Hansen , evidence that sexual abusers use a “grooming process” is not automatically relevant in a case alleging sexual abuse. Such evidence, without more, permits the inference that, because a defendant engaged in acts that sexual child abusers engage in, the defendant is a sexual abuser. Hansen, 304 Or at 176 . That inference is “unwarranted.” Id.

Defendant argues here that the state did not show how his behavior was connected to the grooming process, and I agree. Knapp’s testimony as to general characteristics of “grooming” behavior permitted the jury to make an unwarranted inference that, if defendant engaged in any of that behavior, he was a sexual abuser. It was error to allow Knapp’s testimony, and the error was prejudicial. Accordingly, I agree with Judge Landau’s conclusion that the trial court’s decision should be reversed.

Wollheim, J., joins in this dissent.

Robson testified:

“ Yes, there are certain techniques. It’s usually what I term a “grooming process.” Usually, there’s an extensive amount of testing that goes on both physically and psychologically. There is usually a lot of gift giving, a lot of affection, praising, rewards, anything to make the individual more comfortable even to the extent of dealing with lots of people surrounding this particular person, just getting into a comfortable role; in other words, feeling comfortable and being close to an individual. Yes, they often establish some emotional dependency.’ ” 304 Or at 174 .

The trial court held that Hansen did not apply, stating that the testimony there was “a police officer in the county as to his off-hand opinion as to what items of grooming could be considered,” whereas in this case Knapp’s testimony was by a “properly credentialed expert.” However, the court in Hansen did not address the officer’s credentials but, rather, the relevance of the testimony.