State v. Smith ( 2019 )

101
Argued and submitted September 11, affirmed October 16, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW TAYLOR SMITH,
Defendant-Appellant.
Deschutes County Circuit Court
16CR66235; A166334
452 P3d 492
Defendant appeals a judgment of conviction for luring a minor, ORS 167.057,
first-degree online sexual corruption of a child, ORS 163.433, and attempted
second-degree sexual abuse, ORS 163.425(a), for arranging by text message to
meet for oral sex with a person he believed to be a 15-year-old girl. On appeal,
he argues that the trial court erred by not sua sponte striking a detective’s testi-
mony that defendant engaged in “grooming” during the text exchanges. In defen-
dant’s view, that testimony was plainly scientific evidence that lacked the neces-
sary foundation for its scientific validity in light of the Supreme Court’s decision
in State v. Henley, 363 Or 284, 301, 422 P3d 217 (2018). Held: It is not beyond
reasonable dispute under post-Henley case law that the detective’s testimony was
scientific evidence that required additional foundation.
Affirmed.
Stephen P. Forte, Judge.
Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the opening and reply briefs and
a supplemental brief was Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, Office of Public Defense Services.
Matthew T. Smith filed a supplemental brief pro se.
Philip Thoennes, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
LAGESEN, P. J.
Affirmed.
102 State v. Smith
LAGESEN, P. J.
Defendant, who was 24, saw a girl at a restaurant
and left her a note that invited a “hookup” and included his
phone number. The girl’s mother gave the note to police.
They then impersonated the girl in text messages to defen-
dant. Through those text messages, the ostensible girl told
defendant that she was 15 and arranged for him to meet her
for oral sex. Defendant arrived at the agreed location and
was arrested.
For that conduct, defendant was charged with and
later convicted of luring a minor, ORS 167.057, first-degree
online sexual corruption of a child, ORS 163.433, and
attempted second-degree sexual abuse, ORS 163.425(a). On
appeal, he argues that the trial court plainly erred by not
sua sponte striking a detective’s testimony that defendant
engaged in “grooming” during the text exchanges. In defen-
dant’s view, that testimony was plainly scientific evidence
that lacked the necessary foundation for its scientific valid-
ity in light of the Supreme Court’s decision in State v. Henley,
363 Or 284, 301, 422 P3d 217 (2018). As we explain, we reject
that plain-error argument, because it is not beyond reason-
able dispute under our post-Henley cases that the grooming
testimony in this case was scientific evidence that required
additional foundation. We therefore affirm.
At trial, the state offered the following testimony
from a detective about how defendant’s actions constituted
“grooming” behavior:
“It appeared to be that there was—there was obvious
grooming, you know, that started going on here. You know
when you look at the typical grooming of children, whether
it’s online, in person or whatnot, we—we look at—it starts
with, you know, some sort of acceptance, some sort of, you
know, trust between the two. It was clear to me that this—
whoever was on the other line, or other end of this phone
knew that this was a—a 15 year old. And it also went to,
you know, the note being left [at the restaurant]. So there’s
already a—the set—the stage was set for a hookup. And
then there was also some talk about keeping it a secret,
you know, we don’t want mom to know, how do I know it’s
not mom. So based on—on my training and experience as
a detective, you know, is this going to be an investigation
Cite as 300 Or App 101 (2019) 103
into preventing a crime or is this going to end up being a
response to a—a rape that may have occurred.”
Defendant did not object to that testimony but now
argues that, in light of Henley, decided after the trial in
this case, the detective’s testimony constituted scientific evi-
dence for which the state did not lay an adequate foundation.
See State v. Jury, 185 Or App 132, 136, 57 P3d 970 (2002),
rev den, 335 Or 504 (2003) (explaining that error is deter-
mined based on the law that exists at the time of appeal
rather than the time of the trial court’s ruling). In Henley, the
trial court had allowed a forensic interviewer for Children
at Risk Evaluation Services (CARES) to define grooming
behavior and to describe the behaviors by the defendant that
concerned her, but the state disclaimed a scientific ground-
ing for that testimony. The Supreme Court held that, despite
efforts to disclaim a scientific connection, the testimony about
grooming, “in the context of her testimony overall, was ‘scien-
tific’ evidence, because * * * the evidence implied that it was
grounded in science and the jury likely would have viewed
the evidence that way.” 363 Or at 301. The court explained
that, “[i]n light of her credentials and training, which the
prosecution highlighted, [her] expert testimony implied that
the training she had received on grooming, and the informa-
tion about grooming from that training that she conveyed to
the jury, was accepted and grounded in behavioral science.”
Id. at 303. Moreover, “even though the prosecution did not
highlight the scientific nature of [her] testimony or focus its
examination on studies, research, and literature in the field
that supported her testimony, * * * lay jurors likely would
have accorded the testimony the persuasive value of scientific
principle” based on the circumstances of her testimony. Id.We have since applied Henley in two cases that bear
on whether the detective’s testimony in this case was plainly
scientific evidence that required a foundation showing its
scientific validity: State v. Plueard, 296 Or App 580, 439 P3d
556, adh’d to as modified on recons, 297 Or App 592, 443 P3d
1195, and State v. Evensen, 298 Or App 294, 315, 447 P3d 23
(2019).
In Plueard, the trial court overruled a defendant’s
objection to testimony by a social worker, Petke, about her
104 State v. Smith
training and experience and familiarity with the “phenom-
enon” of grooming. Petke further testified that “ ‘grooming
is a gradual process of building trust with a child in—with
the purpose of establishing such a level of trust to allow
for an opportunity for sexual abuse.’ ” 296 Or App at 584.
We reversed, holding that the reasoning in Henley was
controlling. We reasoned that that was the case in signif-
icant part because Petke’s phrasing (“phenomenon”) could
evoke a scientific air, her education and experience related
to CARES investigations—which immediately preceded the
testimony about the “phenomenon”—would have confirmed
its scientific nature, and she offered a definition of grooming
that was not common knowledge. Id. at 587-88.
After Plueard, we decided Evensen. It involved tes-
timony by a detective about her own experiences investigat-
ing reports of child abuse and that younger children tend to
be more susceptible to “suggestibility” about what happened
than older children, that very few cases she had investigated
involved a suspect who was a stranger to the child, and that
suspects typically were people who were connected to the
family and had a good relationship with them. Evensen, 298
Or App at 311-12. We held that the detective’s testimony was
not scientific evidence that required a foundation showing
its scientific validity, because the detective did not suggest
the existence of some “phenomenon” independent of the
detective’s own experience; the detective did not purport to
explain, based on an outside authoritative source, that her
interview technique was guided by principles of science; she
did not give testimony from which a jury could have inferred
that she had any specialized level of education-based exper-
tise; and she did not draw any scientific or research-based
connection between her testimony and the conduct of the
victim or the defendant. Id. at 315-16. For those reasons,
we concluded that “the overriding concerns that led to the
holdings in Henley and Plueard are not present here.” 298
Or App at 317.
In defendant’s view, the detective’s testimony in this
case is more like the evidence deemed scientific in Henley
and Plueard; in the state’s view, it is more like the evidence
in Evensen. As those competing arguments suggest, this
case falls somewhere between those cases. On the one hand,
Cite as 300 Or App 101 (2019) 105
the detective’s testimony used the phrase “obvious groom-
ing” and “typical grooming of children,” and described how
it “starts,” in a context that suggests some type of observable
phenomenon. And he mentioned his “training and experi-
ence as a detective,” which involved training and experience
specific to child abuse investigations, shortly after referring
to grooming, all of which arguably implicates the same con-
cerns as the testimony in Henley and Plueard. On the other
hand, the detective did not provide a definition of grooming,
and did not even tie his understanding of grooming to his
training and experience; rather, he connected his training
and experience to his assessment of where the investigation
might lead: “based on—on my training and experience as
a detective, you know, is this going to be an investigation
into preventing a crime or is this going to end up being a
response to a—a rape that may have occurred.” Arguably,
the detective’s testimony about “grooming” would have been
understood by the jury as a product of his own observations
and common knowledge rather than derived from scientific
principles, making it more analogous to the testimony in
Evensen.
Regardless of who has the better argument in that
respect, in view of those competing arguments, the matter
is not obvious or beyond reasonable dispute. Because that
is the threshold for our review of an unpreserved claim of
error, we must reject defendant’s claim of error. See Ailes v.
Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956(1991) (for an error to qualify as plain, it must be “ ‘apparent,
i.e., the point must be obvious, not reasonably in dispute’ ”
(quoting State v. Brown, 310 Or 347, 355-56, 800 P2d 259(1990))). We therefore affirm the judgment of the trial court.1
Affirmed.
1
In a pro se supplemental brief, defendant argues that his conviction is
unconstitutional because of compelling evidence of entrapment and improper
vouching. We reject that argument without discussion. And, in a supplemen-
tal assignment of error, defendant asserts that the trial court plainly erred by
instructing the jury that it could return a nonunanimous verdict. We likewise
reject that supplemental assignment of error. State v. Weltch, 297 Or App 409,
410, 439 P3d 1047 (2019) (explaining that our case law forecloses the same unpre-
served claim of error concerning jury unanimity).