State v. Wagner ( 2022 )

79
On appellant’s petition for reconsideration filed May 23; petition for
reconsideration allowed, former opinion (319 Or App 399, 509 P3d 731) modified
and adhered to as modified July 27, 2022; petition for review denied
January 19, 2023 (370 Or 714)
STATE OF OREGON,
Plaintiff-Respondent,
v.
KENNETH SHERIDAN WAGNER,
Defendant-Appellant.
Lincoln County Circuit Court
19CR68935; A173918
515 P3d 402
Thomas O. Branford, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender, Office
of Public Defense Services for petition.
Before Mooney, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
JOYCE, J.
Petition for reconsideration allowed; former opinion mod-
ified and adhered to as modified.
80 State v. Wagner
JOYCE, J.
Defendant seeks reconsideration of our decision in
State v. Wagner, 319 Or App 399, 509 P3d 731 (2022). We
allow the petition for reconsideration, modify our opinion
as explained below, and otherwise adhere to the opinion as
modified.
Among other things, defendant on reconsideration
maintains that, in footnote 2, we incorrectly refused “to
decide whether [the officer] was qualified to offer scientific
opinion evidence on strangulation.” To more clearly explain
what we are, and are not, deciding, we replace footnote 2 at
page 406 with the following new footnote:
“On appeal, defendant does not challenge the scientific
validity and reliability of Dorsey’s testimony. The only
issue on appeal related to Dorsey’s testimony is her qualifi-
cation to offer proffered expert testimony under OEC 702.”
We reject defendant’s other arguments on reconsideration
without discussion.
Petition for reconsideration allowed; former opinion
modified and adhered to as modified.