State v. Plueard ( 2023 )

779
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted October 6, 2022; Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed January 25, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMESON COLE PLUEARD,
Defendant-Appellant.
Washington County Circuit Court
C142372CR; A175296
D. Charles Bailey, Jr., Judge.
Richard D. Cohen argued the cause and filed the briefs
for appellant.
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 Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Count 1 reversed and remanded; remanded for resen-
tencing; otherwise affirmed.
780 State v. Plueard
ORTEGA, P. J.
A jury found defendant guilty on one count of sex-
ual abuse in the first degree (Count 1) and one count of using
a child in a display of sexually explicit conduct (Count 2).
We originally affirmed without opinion, then reversed
and remanded for further proceedings following a remand
from the Supreme Court, and finally reconsidered the lat-
ter decision, deleting a footnote from the opinion. See State
v. Plueard, 291 Or App 842, 419 P3d 816, vac’d and rem’d,
363 Or 599 (2018) (Plueard I); see also State v. Plueard, 296
Or App 580, 439 P3d 556 (Plueard II), adh’d to as modified
on recons, 297 Or App 592, 443 P3d 1195 (Plueard III) (2019).
Defendant’s current appeal follows those further proceed-
ings on remand, asserting four assignments of error. The
first two assignments raise evidentiary issues, the third
challenges the trial court’s posture as adversarial rather
than judicial, and the fourth challenges his nonunanimous
jury verdict on Count 1. The state concedes that defendant
is entitled to reversal of the nonunanimous guilty verdict
in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020) (a unanimous verdict is required to
convict an accused defendant in state court). We agree with
the state’s concession and, therefore, reverse and remand
on Count 1 without further discussion, remand for resen-
tencing as required by ORS 138.257(4)(a)(A), and other-
wise affirm on the remaining assignments of error, briefly
addressed below.
The background contextual facts, which are undis-
puted, are these. Defendant’s convictions relate to abusive
conduct toward T, a developmentally disabled 13-year-old
boy. On remand from the Supreme Court to reconsider our
decision in light of State v. Henley, 363 Or 284, 422 P3d 217
(2018) (Henley I), we reversed and remanded defendant’s
case after concluding that testimony by CARES interviewer
Petke related to “grooming” was scientific evidence that was
erroneously admitted without laying the required “foun-
dation establishing its scientific validity.” Plueard II, 296
Or App at 586, 588. On reconsideration, we revised our opin-
ion to clarify that the trial court has authority to “ ‘deter-
mine the nature of the proceedings that are necessary or
Nonprecedential Memo Op: 323 Or App 779 (2023) 781
appropriate on remand.’ ” Plueard III, 297 Or App at 594-96(quoting State v. Baughman, 361 Or 386, 411, 393 P3d 1132
(2017)). On remand, the trial court held a hearing to deter-
mine the scientific validity of Petke’s trial testimony, and
Petke testified again for the state, and two other experts
testified for defendant. The court issued a written opinion
explaining its conclusion that the grooming evidence met
the validity standards to be admissible and was “not sub-
stantially prejudicial” to defendant. The court thus deter-
mined that defendant was not entitled to a new trial.
In his first assignment of error, defendant argues,
as he did below, that Petke’s expert testimony about groom-
ing did not meet scientific validity standards to be admis-
sible under OEC 702. He maintains that there is a lack of
scientific literature to support such testimony, and the state
maintains that the trial court’s ruling as to the evidence
was not in error under State v. Henley, 310 Or App 813, 486
P3d 853, rev den, 368 Or 638 (2021) (Henley II).
We review the trial court’s rulings regarding the
validity and admissibility of scientific evidence for legal
error. State v. Reed, 268 Or App 734, 738, 343 P3d 680,
rev den, 357 Or 551 (2015). Evidence in the form of expert
testimony is admissible if the “specialized knowledge will
assist the trier of fact to understand the evidence.” OEC 702.
Here, we conclude that the disputed evidence was
scientifically valid and thus admissible under Henley because
its purpose was contextual rather than an assertion about
defendant’s guilt. See Henley II, 310 Or App at 822 (the per-
missible purpose of expert testimony about grooming is to
assist the jury in understanding “the potential significance
of some of [the] defendant’s behavior” and “not to establish
that [the] defendant had groomed the victim and therefore
had sexually abused” him (emphases in original; internal
citations omitted)). Defendant’s arguments do not persuade
us that the evidence was used impermissibly in this case,
and many of his arguments regarding scientific validity
were already rejected in Henley II. The trial court did not
err in concluding that the evidence was admissible. We like-
wise reject defendant’s second assignment of error, which
782 State v. Plueard
asserts that Petke’s testimony intruded on the jury’s inde-
pendent assessment of witness credibility under OEC 403.
Defendant’s third and unpreserved assignment
asserts that the trial court erred during the remand hear-
ing by conducting itself “in an adversarial rather than a
judicial role” when it interrupted the cross-examination of
defendant’s expert witnesses to ask questions but did not
do the same to the state’s expert witness, thereby depriving
him of the opportunity for a fair hearing. He argues that
the court’s conduct warrants plain-error review for abuse
of discretion. We do not see a plain error given that the pri-
mary issue on remand was the admissibility of evidence. See
State v. Mains, 295 Or 640, 657, 669 P2d 1112 (1983) (judi-
cial examination of witnesses may be appropriate “when
necessary to properly rule on * * * questions of admissibility
of evidence”); see also Maney v. Angelozzi, 285 Or App 596,
607, 397 P3d 567 (2017) (“[a] court enjoys broad discretion to
control the proceedings before it” (internal quotation marks
omitted; citation omitted)).
Count 1 reversed and remanded; remanded for
resentencing; otherwise affirmed.