State v. Renard

When a court properly admits challenged testimony as nonscientific expert opinion, the court need not decide whether the testimony was also admissible as lay opinion. State v. Rambo, 250 Or App 186, (2012).

Defendant appealed convictions for assault in the fourth degree constituting domestic violence and harassment constituting domestic violence, which resulted during the same criminal episode against the same victim. Defendant assigned err to the trial court’s failure to merge the two guilty verdicts, to which the State concedes. Defendant also assigned err to the trial court’s admission of an officer’s testimony that bruises on the victim’s arm were consistent with fingermark bruising. Defendant argued that admitting the officer’s testimony as “lay opinion” rather than expert testimony was improper due to a lack of foundation required for the admission of expert testimony. When a court properly admits challenged testimony as nonscientific expert opinion, the court need not decide whether the testimony was also admissible as lay opinion. State v. Rambo, 250 Or App 186, (2012). The Court found that Defendant did not preserve his argument as to a lack of proper foundation; however, even if it had been preserved the Court explained that it was clear from the record that the State intended to lay a foundation for expert testimony when they had the witness describe his training and experience. Reversed and Remanded for merger of guilty verdicts on Counts 1 and 2; remanded for resentencing, otherwise affirmed.