State v. Stafford

972 P.2d 47, 157 Or. App. 445, 1998 Ore. App. LEXIS 2174

• Court: Court of Appeals of Oregon
• Decided: December 9, 1998
• Docket: 94CR0927; CA A90616
• Status: Published

Opinions

EDMONDS, J.

Defendant appeals from his convictions for three counts of attempted sexual abuse in the first degree, ORS 163.427, and one count of attempted coercion, ORS 163.275. We affirm.

According to the evidence, defendant worked for a business that offered tutoring to school age children. On the morning in question, an eight-year-old student attended a session with defendant; there were no other children at the tutoring facility at that time. Defendant moved to where the child was sitting, placed the palm of his hand on her bare upper thigh and kept it there for about five seconds. Although the child had not complained previously about the room being cold, defendant asked her if she was cold. He turned on the heater in the room, and about five minutes later, he touched her thigh in the same place, again for about five seconds. Later when the child wanted to look over a room divider, defendant picked her up by placing his hands under her arms with his fingers on her chest. Still later, defendant touched the child’s thigh again as he reached over to grab a pencil or to show her something.

The child reported the touchings to her parents and indicated to them that they had made her feel uncomfortable. The parents reported the incident to law enforcement authorities, who initiated an investigation. Meanwhile, a second child reported that, during approximately the same period of time, defendant had made her feel uncomfortable on a number of occasions by caressing her mid-thigh with his hand and by looking down her shirt. The child asked defendant to stop his behavior, but he declined. After the child told defendant that she was going to tell her mother about his behavior, he warned her that if she told anyone about his conduct, he would hurt her. The state also offered evidence from three witnesses from California where defendant had lived previously. Those witnesses testified that they had been molested by defendant under similar circumstances. That conduct occurred 17 years earlier for two witnesses and 24 years earlier for another witness.

After the police investigation was completed, defendant was charged with the above crimes. At trial, defendant took the position that his behavior had been misinterpreted by the children and was not related to any interest in sexual gratification. In defendant’s first assignment of error, he argues that the trial court erred by denying his motion to exclude the testimony of Dr. Michael Knapp, a licensed clinical psychologist. Knapp testified that he has had specialized training in the treatment of persons who have been charged with or convicted of sexual crimes, has treated sex offenders throughout his professional career, has conducted group and individual therapy, and has made psychological assessments of offenders. While in practice, he has continued to take courses in the field of sexual abuse, has written an article on sexual abuse issues and has testified in court on such issues. At the time of trial, he was administering an offender treatment program involving approximately 40 adult male offenders.

At trial, Knapp was asked whether there is a concept known as “grooming” in his specialty. He was next asked to explain what the concept means. On direct and cross-examination, Knapp indicated that, within the field of sex offender treatment, the word “grooming” describes a pattern of behavior that offenders generally go through to prepare a victim for the eventual abusive behavior. He said that “grooming behavior” often involves the offender trying to make friends with the child, while at the same time exposing the child to varying degrees of touching that are at first nonsexual but then progress to become sexual.¹ On cross-examination, Knapp indicated that, within the field of sex offender treatment, the word “grooming” refers to a pattern of behavior that some offenders go through and that, essentially, he makes a “medical diagnosis” regarding an alleged offender by identifying the individual’s intent based on his conduct. He said that he does not require a particular number of acts before beginning to form such a diagnosis and that a report from a child of inappropriate touching, such as the touching of a child on the upper leg to check the child’s temperature, would be enough to raise a question in his mind that he would “want to check out.”

On redirect reexamination, the prosecutor asked,

“Doctor, if this individual had been previously convicted of touching many children in exactly the same ways that led to sexual intercourse and sodomy and manipulation of the genitals, would that indicate to you that that individual has engaged in grooming?”

Knapp answered in the affirmative. On recross-examination, Knapp again testified that the combination of a prior history of committing sexual abuse together with the touching on the upper leg and the picking up of a child would be significant facts in deciding whether grooming behavior had occurred. Defense counsel inquired if his opinion would be the same if the earlier “sexual situation” was 14 years in the past, and Knapp replied:

“[T]here are plenty of examples of offenders that molest two or three times in their lifetime and have 20 year spans between incidents of offending behavior, so [I] wouldn’t rule it out. I wouldn’t rule out a conclusion on my part that this person may have been grooming the child.”

At that point in the trial, the prosecutor started to give a lengthy hypothetical example, and defense counsel objected. The trial court overruled the objection. The prosecutor’s hypothetical required Knapp to assume that he had before him

“an individual in the context of teaching young females in the past and engaging in picking them up under the armpits in the past and putting his fingers on their upper chest, upper breast area, rubbing their legs, their thighs, which eventually leads to culmination of criminal sexual offenses — sexual intercourse, sodomy and masturbation, touching of the genitals — and this person then is convicted of offenses involving that and sent to prison for a good number of years, and then after release from prison engages in teaching school again and engages in teaching young children of female age, and claims to be interested in finding out how cold or hot the ambient temperature is by touching one of these student’s legs on the upper side area twice, to see how cold it is and then to see if the change in the heating apparatus has caused a difference, that person then picks that individual up by the armpits from behind and places his fingers on the person’s chest or upper breast area, engages in conduct where he puts his hand on her leg while he is pointing out things, when they’re sitting down, school work that’s being done; when that individual, in connection with another young female, engages in a process of continually putting his hand on her upper leg in the context of leaning over and pointing things out with regard to school lessons, is told by the second individual that that conduct is not wanted and he still persists — and this is all again in the context of teaching * * *.

* * * *

“The last bit of information I’d like you to consider is that the second person advises the school teacher that she’s going to report the matter to her mother and the school teacher responds that she better not; if she does, he’ll hurt her, he’ll hunt her down or haunt her. Based upon all of that information, would you be willing to give us an opinion as to whether or not in your professional opinion you feel that that person has engaged in grooming behavior?”

Dr. Knapp responded, “Yes, I feel that’s grooming behavior.”

Defense counsel relied on State v. Hansen, 304 Or 169, 743 P2d 157 (1987), in support of his argument to exclude Knapp’s testimony. He said:

“But the language that I have quoted in the Hansen case as far as what is grooming is the only thing that’s really been addressed in our appellate courts as of this point, which describes a process or a technique. As I pointed out in the memorandum, when you look at the pleadings in this case, it doesn’t even come close to establishing some kind of grooming.

“Now, the Hansen case, of course, said that as far as grooming, the grooming process cannot be simply put forth for the purpose of establishing a bad character or bad acts. * * * Well, based on the indictment which alleges, again, the first type of conduct and then also the touching of the upper leg, it doesn’t even come close to this criteria that was quoted in Hansen * * *.

“By calling Dr. Knapp what they’re basically saying is we’re going to tell you how an innocent act performed by anyone could in fact be an act of grooming for sexual purposes. There isn’t any support for that based on the pleadings other than the fact that they’re alleging a grooming process by touching the upper leg.

“* * * Looking at everything in the record pertaining to [the second child], there is not even a hint of some kind of a grooming here. Her allegation, which [the prosecutor] just mentioned a moment ago, about what he alleges happened on this particular day, and it’s also alleged again in paragraph 4, Attempted Coercion, is a hostile, aggressive act that has nothing to do with grooming. So as far as [the second child] is concerned, Dr. Knapp’s testimony, based on the pleadings and based on the statements that [the prosecutor] just made to the Court, has nothing to do with the grooming process. And since they were joined, if Dr. Knapp is allowed to testify, it’s obviously very possible for the jury to be misled and confused over this issue.

“And of course, the whole idea is to prepare the jury, which I think is an unproven theory. As far as I can tell, it hasn’t really been recognized in the medical profession and it has not been really addressed in the courts, and so what they’re doing is they’re taking in this idea or this concept of grooming, bringing in the Oregon evidence establishing the touching of the upper leg, and then they bring in Dr. Knapp who talks about this theory of grooming, and then they bring in 15 or 14 and a half year old cases involving prior sexual activity. The only purpose and the only obvious conclusion under those circumstances is that they’re saying, Well, you’ve got to go back 14 and a half years, members of the jury, and see that this guy did a bad thing back then, and you can relate that back to what’s happened right here, which was not a criminal act.’ * * * There’s no relevance. * *

We understand defendant’s motion to exclude Knapp’s testimony to raise two issues. The first issue is whether Dr. Knapp’s testimony about “grooming” is relevant under OEC 401.² The second issue is whether the state was required to lay a foundation for the admission of scientific evidence under OEC 702³ before it could offer Knapp’s testimony. As to the latter issue, defendant relies on appeal on the holding in State v. Brown, 297 Or 404, 687 P2d 751 (1984).⁴ Prefiminarily the state argues that any objection under Brown was not preserved before the trial court. We disagree because of defendant’s reliance at trial on State v. Hansen, a case that we will discuss in some detail, because it plays a major role in our subsequent analysis.

In Hansen, the defendant, a high school teacher, was charged with engaging in sodomy with one of her students before the student’s 16th birthday. The student testified on direct examination and cross-examination that she had for several months initially denied having a sexual relationship with the defendant. Because that testimony called into question the student’s credibility, the state offered evidence from a police detective regarding his experience in investigating other child sexual abuse cases. The detective testified over objection that it was normal behavior for child victims of sexual abuse to deny that abuse occurred because they feel guilty and embarrassed. Often they have an emotional tie to the abuser that motivates them to protect the abuser. The defendant did not challenge that testimony in general but objected to the following question and answer:

“ ‘[PROSECUTOR:] Now, do you find certain common factors when you work with both the victims and offenders in these non-family cases? Do you find certain factors or methods that an offender will use to get close to the victim?

« * * * %

“ ‘[DETECTIVE:] 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.’ ”Hansen, 304 Or at 174.

The Hansen court held that the grooming evidence in that case was not relevant under OEC 401. It noted that under Brown, admissibility of expert testimony must be evaluated in reference to OEC 401. It said:

“The testimony to which defendant objects did nothing to explain the student’s initial denial of sexual relations with defendant. Detective Robson testified that, in his experience, sexually abused children are reluctant to admit the abuse because, in addition to feelings of guilt and embarrassment, they are often emotionally dependent on the adult abuser. That much of his testimony arguably is admissible under [State v.] Middleton, [294 Or 427, 657 P2d 1215 (1983),] although Middleton involved intra-family abuse, because it might assist the trier of fact to understand the student’s initial denial. But the specific techniques used by some child abusers ‘to get close to the victim’ which may result in the child’s emotional dependence on the abuser, are irrelevant to the effect the dependence has on the child’s willingness to implicate the abuser. It is the emotional dependence, not the specific acts that produce it, that helps to explain the child’s behavior .Middleton does not support the admission of this testimony.” Hansen, 304 Or at 175-76.

We hold that defendant has adequately preserved both issues for appellate review. His reliance on Hansen in the trial court and his characterizations of “grooming” as an “unproven theory” put the trial court on notice as to the issues framed on appeal. We turn to the merits of the relevance issue under OEC 401.

Whether the evidence is relevant under OEC 401 depends on the particular facts of each case and on whether the proffered evidence has a tendency to make a particular fact or contention more or less likely. The holding in Hansen that “grooming” evidence was not relevant is not on point as to the facts in this case. In Hansen, the relevance of the detective’s testimony depended on whether the evidence about grooming could explain the student’s initial denial of sexual relations with the defendant. As the court held, the ultimate emotional dependence on the abuser could have been relevant to that issue but the underlying acts that led to that dependence were not. In contrast, the evidence in this case about grooming is the gravamen of the charges against defendant. Defendant’s position that his conduct was not intended as grooming behavior puts his intent directly in issue. Evidence that conduct, like that which occurred in this case, falls within the cognizable behavior patterns of sex offenders as steps toward the ultimate completion of sexual abuse makes it more probable that defendant’s motivation for his conduct was for his own eventual sexual gratification. We conclude that Knapp’s testimony was relevant under OEC 401.

The issue regarding whether the state was required to lay an additional foundation for Knapp’s testimony turns on whether the testimony given by Knapp is “scientific evidence” within the meaning of State v. Brown. In Brown, the issue concerned the admissibility of the results of a polygraph examination. The court said:

“The term ‘scientific’ as we use it in this opinion refers to evidence that draws its convincing force from some principle of science, mathematics and the like. Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy.” Brown, 297 Or at 407-08.⁵

In O’Key, the court elaborated on the meaning of “scientific evidence.” In that case, the defendant was charged with driving under the influence of intoxicants, and the issue was the admissibility of a field sobriety test known as the Horizontal Gaze Nystagmus (HGN) test. The test is performed by measuring the angle of onset of nystagmus or involuntary, rapid oscillation of the eyes as a subject looks from side-to-side while tracking a steadily moving object. The scientific proposition on which the test is based is that alcohol affects the involuntary tracking mechanism of the eyes. The court concluded that evidence of an HGN test result is “scientific evidence,” because

“[the test] purports to draw its convincing force from a principle of science, namely, the asserted scientific proposition that there is a causal relationship between consumption of alcohol and the type of nystagmus measured by the HGN test[,]” O’Key, 321 Or at 296,⁶

in addition to the personal observation of the officer who administers the test.

The implication of O’Key is that evidence based on personal observations that does not draw its convincing force from a principle of science is not “scientific evidence” within the meaning of Brown. As the court in O’Key recognized, “it is difficult to set a more definitive boundary between ‘scientific’ evidence and ‘technical or other specialized knowledge,’ which are the other types of evidence requiring expert proof.” 321 Or at 291. Nonetheless, such a distinction exists, and it is that distinction that drives the result in this case.⁷ Thus, our inquiry is whether Knapp’s testimony derives its force from scientific principles or whether it is merely testimony based on specialized knowledge of an expert in the treatment of sex offenders.

In State v. Milbradt, 305 Or 621, 756 P2d 620 (1988), an issue was whether a caseworker who was not an expert on mentally retarded adults could testify on the way child victims normally react to sexual abuse without meeting the Brown foundation requirements for scientific evidence. The defendant in Milbradt was charged with sexual offenses involving two mentally retarded adults. A caseworker was permitted to testify about the way child sex abuse victims typically react to sexual abuse. The court said:

“This case deals with two young adults who have had substantially different backgrounds and experiences and who are physically and mentally quite dissimilar to any child victims previously encountered by this witness. * * * We have set out in great detail in Brown, 297 Or at 409-18, the necessary foundation that must be laid for the introduction of scientific evidence. Without repeating what we said there, we direct the attention of anyone who is offering a form of scientific evidence to the procedures for admissions set forth in Brown. * * *

“* * * We suggest that in future cases involving ‘syndrome’ testimony full foundations be established, if indeed it can be shown that the so called ‘typical’ reactions can be demonstrated to be either typical or reliable. * * *” Milbradt, 305 Or at 630-31.

In State v. St. Hilaire, 97 Or App 108, 111, 775 P2d 876 (1989), the defendant assigned as error the trial court’s admission of a police detective’s testimony “that victims of sexual abuse rarely report the crime immediately, often minimize the activity and often are imprecise about the dates of the occurrences.” We agreed with the defendant’s argument that “sex abuse syndrome” testimony is only admissible if an appropriate foundation is laid under Brown and Milbradt. In St. Hilaire, the officer’s testimony was offered to rebut an inference that the victim’s testimony was not credible. Thus, the detective’s testimony was offered to explain the state of mind of sex abuse victims with regard to reporting the abuse or, in other words, the psychological condition of sex abuse victims. We concluded that the state had laid a proper foundation for the detective’s testimony and that his testimony was relevant to rebut the defendant’s theory.

In State v. Lawson, 127 Or App 392, 872 P2d 986, rev den 320 Or 110 (1994), the defendant, charged with assault and criminal mistreatment of infants in her care, offered testimony by a psychologist that she did not meet the profile of a child abuser because she had a low propensity for violence and because she controlled her temper. Also, she relied on psychological testing that indicated that she did not have the psychological characteristics of known, active child abusers. We relied again on the holdings in Brown and Milbradt and required that the defendant satisfy the Brown requirements. We explained:

“[T]he type of evidence proffered by defendant in this case involves comparing an individual’s behavior with the behavior of others in similar circumstances who have been studied in the past. This comparison evidence purports to draw its convincing force from scientific principles. It requires an expert witness who can explain the data and test results, and, if necessary, the scientific principles that are said to give the evidence its reliability or accuracy.” Id. at 395.

We conclude that the holdings of Milbradt, St. Hilaire and Lawson do not control the admissibility of the evidence in this case. They were concerned with the admissibility of the evidence of the psychological picture of sexual abuse victims or individuals who physically abuse children. The testimony here was offered to prove the state’s charges and to assist the jury in understanding the significance of defendant’s actions toward the victims, actions that otherwise might be considered innocent behavior. “Evidence of a defendant’s intent is rarely, if ever, proven by direct evidence. Intent is an operation of the mind, and it is seldom susceptible of direct proof.” State v. Rose, 311 Or 274, 282, 810 P2d 839 (1991). In this case, the state was required to prove that the touching occurred with a criminal intent. Knapp’s general testimony about the methods that sex offenders use to prepare their victims for eventual abuse has nothing to do with providing a psychological picture of defendant as an abuser or his credibility. Rather, it provides evidence from which the jury could infer that defendant acted for a sexual purpose, an element of the crime. Most importantly, the force of Knapp’s observations is not drawn from psychological testing or any other scientific methodology; rather, his testimony is derived from personal observations made in light of his education, training and experience, not unlike any other expert witness who testifies from technical or other specialized knowledge.⁸ In that light, we conclude that Knapp’s testimony was not “scientific evidence” within the meaning of Brown but evidence based on “specialized knowledge.”

Defendant’s second assignment of error is related to his first assignment of error. The trial court ruled that the testimony of three of the witnesses from California was admissible as evidence of prior bad acts to show defendant’s intent at the time of the alleged crimes against the victims in this case. OEC 404(3) provides:

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

On appeal, defendant argues that he “would have difficulty arguing with the relevance theory of the state, but for the fact that the California acts are so remote.” In light of Dr. Knapp’s testimony that “there are plenty of examples of offenders that molest two or three times in their lifetime and have 20 year spans between incidents of offending behavior,” the hiatus between the California acts and the incident in this case does not render the evidence irrelevant. Defendant also argues that prejudicial effect of the testimony from the California victims outweighs any probative value. The trial court went through all of the necessary inquiries under State v. Johns, 301 Or 535, 725 P2d 312 (1986), to determine whether the evidence was relevant and whether its prejudicial effect substantially outweighed its probative value. The trial court found the evidence “very, very, strong.” It noted that all of the California victims were young girls in a student-teacher relationship with defendant and that the characteristics of defendant’s actions at that time were similar to his conduct in this case. The court also concluded that the state needed the evidence in light of defendant’s position that the touchings of the victims in this case were innocent. Additionally, the court instructed the jury in a manner to make it unlikely that the jurors would misuse the evidence. We conclude that the trial court’s ruling that the probative value of the evidence outweighed the potential for unfair prejudice was proper and was not an abuse of discretion.

Assignments of error three and four do not warrant a detailed discussion. Suffice it to say that the evidence taken in the light most favorable to the state demonstrates that defendant took substantial steps toward abusing the victims. Whether the events occurred as the victims described them was a question of fact for the jury to decide, and there is evidence in the record to support each element of the charges. Finally each time defendant touched the first victim’s leg, he committed attempted sexual abuse because he had the opportunity to pause and reflect on his conduct. ORS 161.067.⁹ Thus, consecutive sentences were lawfully imposed because he had the time to renounce his criminal objectives before acting further. Defendant’s other arguments and assignments of error do not warrant discussion or we do not have an adequate record to review them.

Affirmed.

Warren and Haselton, JJ., join in this opinion.

1 Knapp testified:

“When an offender prepares a child for ultimate sexual victimization, he has to get close to the child and create a relationship with the child. And grooming is the term that’s used to describe this behavior on the offender’s part, of getting close to a child, making friends with the child, becoming perhaps a confidant of the child, getting the child used to certain kinds of touching, play activities. Most offenders that I know groom with relationship; that is, they become a confidant, friend, close associate of the child, do many things with the child, buy them gifts. Many of them expose the child to varying degrees of touching that [are] non-sexual in nature, but eventually leads up to sexual touching; touching on the legs, the arms, back rub, applying suntan lotion, often using legitimate reasons like that for the touching.

“Also, in grooming there’s this concept that the offender very subtly oftentimes leads the child into feeling somehow responsible. Some offenders might ask the child, ‘Do you mind if I do this?’ And the child, who really has no power in the relationship to begin with, doesn’t object. And so then, when the sexual molestation follows, the child feels that he or she must have been some kind of partner in this.”

2 OEC 401 provides:

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

3 OEC 702 provides:

“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

4 In Brown, the court held that the standards used to determine the admissibility of “scientific evidence” under OEC 401 and OEC 702 are (1) the theory’s general acceptance in the field; (2) the expert’s qualifications and stature; (3) the use that has been made of the theory; (4) the potential for error; (5) the existence of literature supporting the theory; (6) the novelty of the theory; and (7) the extent to which subjectivity plays a role. 297 Or at 417.

5 “Although Brown focused on ‘novel’ scientific evidence, [its holding] is not limited to ‘novel’ scientific evidence.” State v. O’Key, 321 Or 285, 293 n 9, 899 P2d 663 (1995).

6 The court explained that, “[t]he value of HGN testing depends critically on the demonstrated scientific validity of that proposition. Moreover, the proposition that alcohol consumption causes nystagmus possesses significantly increased potential to influence the trier of fact as a ‘scientific’ assertion.” Id. at 296-97.

7 In drawing a distinction between “scientific evidence” and “technical or other specialized knowledge,” the determining factor is the source of the evidence’s reliability or accuracy. The distinction between “scientific evidence” and “specialized knowledge” is illustrated by the ways in which testimony about medical causation is submitted into evidence. For instance, a medical doctor diagnoses a fracture by palpation and observation or by resorting to an x-ray. His testimony about his diagnosis is not “scientific evidence” within the meaning of Brown. On the other hand, evidence of a “syndrome” could be “scientific evidence” under some circumstances. In medical parlance, a “syndrome” is “[t]he aggregate of signs and symptoms * * * constituting together the picture of the disease.” Stedman’s Medical Dictionary, 1379 (23d ed 1976). The relationship between the aggregate of signs and symptoms may be what gives reliability to the conclusion that a syndrome exists, and that relationship may be demonstrable only by a comparative analysis of test data.

8 To the extent that our decision in St. Hilaire can be read to stand for more than a rule of law regarding the admissibility of evidence concerning a victim’s or a defendant’s psychological condition, we disavow any such interpretation.

9 ORS 161.067 provides, in pertinent part:

“(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. * * *”