State v. Henley

When determining admissibility of expert testimony, the Brown/Key standard applies to qualifying an expert when “the expert’s testimony ‘purported to draw its convincing force from principles of science.’”

Defendant appealed from his conviction of one count of sexual abuse in the first degree (ORS 163.427) and sodomy in the first degree (ORS 163.405).  Defendant assigned error to the trial court’s admission of testimony that Defendant’s act of massaging the victim’s chest, which occurred sometime before the sexual abuse, could constitute sexual “grooming.” Defendant argued that the court erred because the State failed to lay a scientific foundation for the admission of that evidence required by the Supreme Court’s decisions in State v. Brown, 297 Or 404 (1984), and State v. O’Key, 321 Or 285 (1995).   In rejecting Defendant’s argument, the Court primarily based its reasoning on State v. Marrington, 335 Or. 555 (2003) explaining that the key factor for determining whether the Brown/Key standard applied was whether the expert’s testimony “purported to draw its convincing force from principles of science.”  The Court found that as a factual matter, the expert witness stated that she was not a psychiatrist and that her testimony was based on her experience, not her expertise. Therefore, the Brown/Key standard did not apply. Affirmed.