State v. Wagner

515 P.3d 402, 321 Or. App. 79

Opinion

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 modified 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 qualification 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.