Lanny Earl Brenner v. Mark Nooth

Defendant Mark Nooth, superintendent of the

Snake River Correctional Institution (the state), appeals a

post-conviction court judgment concluding that petitioner’s

trial attorney provided inadequate representation during

his criminal trial for sexual abuse in the first degree, ORS

163.427, and granting petitioner post-conviction relief. The

state argues that key evidence offered by petitioner in support

of his claim of inadequate assistance of counsel would

have been inadmissible at his criminal trial and that the

post-conviction court erred in granting relief based at least

in part on that evidence. Specifically, the state asserts that

expert witness testimony proffered by petitioner was scientific

evidence and that petitioner failed to show that, as

such, it comported with the admissibility requirements specific

to scientific evidence. As explained in this opinion, we

agree with the state that key parts of the challenged testimony

are scientific evidence and that petitioner failed to

meet his burden of showing that that testimony would have

been admissible at petitioner’s criminal trial. We conclude

further that, because that testimony was critical to petitioner’s

claim of inadequate assistance of counsel, the postconviction

court erred in concluding that petitioner suffered

prejudice, and we reverse the post-conviction court’s grant

of post-conviction relief on that basis.1

The following facts, which are undisputed on

appeal, are drawn from the record. Petitioner was a guest

at a party where he became intoxicated. Early in the evening,

a group of partygoers—including the victim, E, and

her friend, A—were downstairs watching a violent movie.

Petitioner, who was visibly drunk, came downstairs for

about 30 minutes. Petitioner sat next to A while watching

the movie and, when A’s boyfriend left the room, petitioner

made sexual comments to her, telling A that he wanted

1 Petitioner raised four claims for relief to the post-conviction court. This

opinion primarily addresses the state’s appeal of the grant of relief based on

petitioner’s second claim for relief. Petitioner cross-appeals the post-conviction

court’s denial of his first claim for relief, which we affirm without written discussion.

He also raises additional cross-assignments of error. We also reject those

arguments without written discussion. Petitioner’s third and fourth claims for

relief were not the subject of any assignment of error on appeal or cross-appeal.

Cite as 283 Or App 868 (2017) 871

to have sex with her and mumbling something about her

“boobs.” After the movie ended, petitioner played a game of

pool with E. Petitioner, who was slurring his speech and having

trouble keeping his balance, told E that she was pretty.

After playing pool, petitioner hugged E, although E “kind of

stood back and didn’t really want a hug.” Around 1:00 a.m.,

petitioner had an emotional breakdown while with his sister.

Petitioner was crying and saying repeatedly, “It wasn’t

me,” and attempting to go home. Petitioner’s sister believed

petitioner may have been having a flashback related to his

service in the Vietnam War. Petitioner’s sister took his car

keys because she was concerned about him driving while

intoxicated, and then made up a bed for petitioner and left

him to sleep.

E, A, and a third woman all went to sleep around

2:00 a.m. in a basement room, with E and the third woman

sharing an air mattress. E awoke to the feeling of someone

touching her back, and found petitioner touching her

breasts and buttocks. E immediately noticed that her pants

and underwear had been pulled down to her knees and that

petitioner was “completely naked.” E pushed petitioner away,

but petitioner did not stop touching her until she pushed him

“about two or three more times” and said, “[s]top.” E later

testified at the criminal trial that, after she told him to stop,

petitioner “just kind of sat there for a little bit” and looked

“like somebody snapping out of a trance.” Petitioner picked

up his clothes and walked into another room but returned

a few minutes later and asked E if she was okay. E replied,

“No. Go away.” Petitioner then left. At some point, petitioner

was seen coming up the stairs from the basement, naked,

while several people were still hanging out in the house. He

was described as mumbling and incoherent. Petitioner’s sister

took petitioner back to the bed that she had made for him,

and petitioner went to sleep. In his subsequent statements

to police, petitioner maintained that he had no recollection

of going downstairs, taking off his clothing, or touching E.

At petitioner’s criminal trial, his defense counsel

did not contest that petitioner had touched E; rather,

defense counsel emphasized the witness accounts of petitioner’s

intoxication to argue that, because petitioner was

so drunk, he could not have acted “knowingly” as required

872 Brenner v. Nooth

for a conviction in his case.2 In his opening statement, petitioner’s

defense counsel referenced petitioner’s military service

in Vietnam and explained that the jury would hear evidence

that the movie playing at the party was “particularly

freaky” and “particularly scary,” and “brought back memories

of [petitioner’s] Vietnam service.” As a result, defense

counsel explained, petitioner “dr[ank] and t[ook] his medication

because he did not want to feel that way; he did not

want to re-have those memories; he did not want to think

about the war.” During the trial, petitioner’s sister testified

that she believed that petitioner’s emotional breakdown was

related to his experience in Vietnam, but defense counsel

did not introduce as evidence a mental health diagnosis for

petitioner. Petitioner did not testify.

In closing, petitioner’s defense counsel argued that,

as a result of his intoxication, petitioner was “on autopilot”

when he went downstairs and it was “just as likely” that

petitioner was trying to get out of the house and go home

when he wandered into the room where E was sleeping.

Defense counsel further argued to the jury that petitioner

was “feeling his way through” a dark and unfamiliar room

when he touched E: “He doesn’t know who she is. He doesn’t

know where he is. When he’s told, ‘No,’ he stops.” Petitioner’s

defense counsel then argued that petitioner’s lack of memory

was evidence that he lacked the required mental state:

“I think I talked about it a little bit on jury selection

when people are under anesthesia * * * you don’t remember

what happened, and again, I’m not bringing up lack of

memory as excuse or as denial. Lack of memory is really—

in this case is really a result of the extreme intoxication.

That’s what happens when somebody’s either under anesthesia

or extremely intoxicated.”

At the conclusion of the trial, petitioner was found guilty by

the jury of two counts of first-degree sexual abuse.

After petitioner’s direct appeal was dismissed on his

own motion, petitioner sought post-conviction relief, raising

four claims of ineffective assistance of counsel. Petitioner’s

second claim, which is the focus of this opinion, asserted that

2 The indictment in petitioner’s case charged him with “unlawfully and

knowingly” subjecting E to sexual contact.

Cite as 283 Or App 868 (2017) 873

petitioner’s trial counsel “failed to develop a defense theory

based on petitioner’s health problems, including his military

service-connected post-traumatic stress disorder (PTSD).”

Petitioner asserted that his trial counsel should have been

aware of evidence that petitioner was suffering from PTSD

related to his military service and that petitioner abused

alcohol to self-medicate and ease symptoms associated with

that disorder. Petitioner claimed that his counsel could

have leveraged those facts to develop a diminished capacity

defense attacking the mens rea requirements of the sexual

abuse charges3 or a lack-of-volition theory attacking the

actus reus.4 Petitioner acknowledged that his trial counsel

did present some evidence of his military history, mental

health issues, and intoxication; however, he pointed out that

the evidence was introduced by lay witnesses and argued

that a defense such as he outlined required expert testimony

to be effective. Petitioner argued that his trial counsel’s

failure to obtain and present expert witness testimony

supporting that theory constituted inadequate assistance of

counsel and necessitated a new trial.

In support of his claim, petitioner offered, among

other things, the testimony of two experts: Dr. Robert

Julien, a retired pharmacologist, and Dr. Bridget Cantrell,

a mental health therapist. Prior to the post-conviction trial,

the state moved to exclude the testimony of both witnesses

and argued that neither expert’s testimony would have been

admissible in petitioner’s criminal trial. As relevant to this

appeal, the state argued that key parts of each expert’s testimony

amounted to scientific evidence and that, under the

3 As noted previously, see 283 Or App at 872 n 2, defendant was charged with

“knowingly” committing sexual abuse. Additionally, a conviction for first-degree

sexual abuse requires proof that a defendant “subject[ed] another person to sexual

contact.” ORS 163.427. “Sexual contact” is defined, in part, as “any touching

of the sexual or other intimate parts of a person * * * for the purpose of arousing

or gratifying the sexual desire of either party.” ORS 163.305(6) (emphasis added).

Petitioner argues that his trial counsel could have used evidence of his PTSD

and intoxication to negate either the “knowingly” mental state requirement or

the specific intent requirement inherent in the “sexual contact” element of sexual

abuse in the first degree.

4 ORS 161.095(1) states that “[t]he minimal requirement for criminal liability

is the performance by a person of conduct which includes a voluntary act or

the omission to perform an act which the person is capable of performing.” ORS

161.085(2) defines a “voluntary act,” in relevant part, as “a bodily movement performed

consciously.”

874 Brenner v. Nooth

admissibility requirements for scientific evidence set out in

State v. Brown, 297 Or 404, 687 P2d 751 (1984), and State

v. O’Key, 321 Or 285, 899 P2d 663 (1995), their testimony

would have been inadmissible in petitioner’s criminal trial

because it lacked valid scientific foundation. In response,

petitioner primarily argued that the admissibility requirements

of Brown and O’Key did not apply to the testimony

of Julien and Cantrell for various reasons that we address

below. At the post-conviction trial, petitioner called Cantrell

and Julien, whose testimony we discuss in detail as part of

our analysis later in this opinion.

Following the post-conviction trial, the court

granted petitioner post-conviction relief, ordering the judgment

from his criminal trial vacated and the case returned

for a new trial. In its judgment, the post-conviction court

concluded that petitioner’s counsel was deficient and that

petitioner had suffered prejudice. The post-conviction court

framed the issue underlying petitioner’s second claim

for relief as “whether [petitioner’s] trial attorney properly

evaluated the PTSD and alcohol issues.” The postconviction

court noted that “[t]he bench and bar have

recently become aware of the particular issues of veterans”

and that petitioner’s attorney had access to trainings and

referrals related to veterans’ issues but did not “call upon

the resources available to evaluate the defense.” The postconviction

court then concluded:

“The best defense in this case is alcohol and PTSD. * * *

[Defense counsel] needed an expert with the proper experience

who could follow up and definitively diagnose PTSD.

[Defense counsel] could have called on the VA system or one

of the experts from the [Oregon Criminal Defense Lawyer’s

Association] training. He didn’t.”

The post-conviction court also found that the testimony of

Cantrell and Julien would have been admissible at trial:

“Both Julien and Cantrell qualify as expert witnesses

based on their training and experience. They each have

specialized knowledge and experience that would assist the

trier of fact. Their testimony is admissible for this hearing

and for trial. It would have then been up to a trial jury to

decide what to do with that testimony. This court has certainly

found it informative.”

Cite as 283 Or App 868 (2017) 875

The post-conviction court then concluded that the expert

witness testimony would have “affected [the] outcome”:

“There is prejudice here. The experts would have testified

to enough that there is a reasonable likelihood it would

have affected [the] outcome.”

The court did not specify which parts of the testimony it

found helpful or that it believed would have affected the outcome

of petitioner’s criminal trial, and it did not determine

whether any parts of the experts’ testimony were scientific

evidence or whether that evidence met any of the admissibility

criteria discussed in Brown and O’Key.

On appeal, the state assigns error to the postconviction

court’s determination that the testimony of

Julien and Cantrell would have been admissible at trial and

its decision to grant post-conviction relief based at least in

part on that testimony. The parties largely reiterate to us

the arguments that they made to the post-conviction court.

The state contends that parts of the testimony of Julien and

Cantrell are scientific evidence subject to the requirements

of Brown and O’Key and that petitioner failed to meet his

burden at the post-conviction trial of showing that the evidence

would have been admissible at the criminal trial. The

state argues further that, applying the admissibility criteria

from Brown and O’Key, the science underlying parts of

Julien’s and Cantrell’s testimony is invalid and therefore

would have been inadmissible at trial. Petitioner argues that

the testimony of Julien and Cantrell is not subject to Brown

and O’Key but rather is governed only by the requirements

applicable to all expert witnesses as stated in OEC 702.

Petitioner further argues that Oregon’s intoxication-defense

statute, ORS 161.125, makes the testimony admissible.

Based on those arguments, the issue before us is

whether the post-conviction court erred in concluding that

the testimony of Julien and Cantrell would have been admissible

at petitioner’s criminal trial and, on the basis of that

testimony, erred in granting petitioner a new trial. As we

proceed to explain, we conclude that key parts of Julien’s

and Cantrell’s testimony are “scientific” evidence. As the

proponent of scientific evidence in a post-conviction proceeding,

petitioner had the burden to show that the evidence

876 Brenner v. Nooth

meets the admissibility requirements specific to scientific

evidence. Because we conclude that petitioner failed to meet

that burden, the post-conviction court erred in concluding

that those parts of the testimony would have been admissible.

As a result, petitioner failed to show that he was prejudiced

by his counsel’s performance at his criminal trial and,

therefore, the post-conviction court erred in granting petitioner

post-conviction relief as to his second claim.

We begin our analysis with an overview of our

law regarding inadequate assistance of counsel. Petitioner

raised claims for post-conviction relief under both the

Oregon Constitution and the United States Constitution.

A petitioner who seeks post-conviction relief on the ground

that his trial counsel was inadequate must prove, by a

preponderance of the evidence, facts demonstrating that

his counsel failed to exercise reasonable professional skill

and judgment and that the petitioner suffered prejudice as

a result. Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703

(1991); Strickland v. Washington, 466 US 668, 687, 104 S Ct

2052, 80 L Ed 2d 674 (1984) (the federal constitution requires

“effective” assistance of counsel). Our analysis focuses on

the second of those two prongs—whether petitioner showed

that he suffered prejudice as a result of the alleged deficient

performance of his attorney.

To prove prejudice under the Oregon Constitution,

a petitioner must show that his counsel’s deficient performance

had “a tendency to affect the result of the prosecution.”

Stevens v. State of Oregon, 322 Or 101, 110, 902 P2d

1137 (1995); see also Green v. Franke, 357 Or 301, 322-23,

350 P3d 188 (2015) (explaining that “the tendency to affect

the outcome standard demands more than mere possibility,

but less than probability,” and that “the issue is whether

trial counsel’s acts or omissions could have tended to affect

the outcome of the case” (emphasis in original; internal quotation

marks omitted)). When a petitioner’s claim is that

his trial counsel was deficient for failing to investigate and

pursue a particular trial strategy, as petitioner argues here,

“the petitioner must adduce evidence at the post-conviction

hearing that would have been discovered and introduced at

the criminal trial had trial counsel undertaken the proposed

investigation.” Short v. Hill, 195 Or App 723, 729, 99 P3d

Cite as 283 Or App 868 (2017) 877

311 (2004), rev den, 338 Or 374 (2005) (emphasis added).

That is, to show prejudice, the petitioner “must prove that

investigation would have produced admissible evidence”

that could have affected the outcome of the trial. Tracy v.

Nooth, 252 Or App 163, 170, 285 P3d 745 (2012), adh’d to

on recons, 255 Or App 435, 299 P3d 565, rev den, 353 Or

868 (2013) (emphasis added); see also Holcomb v. Hill, 235

Or App 419, 438, 233 P3d 448, rev den, 349 Or 370 (2010)

(petitioner failed to show prejudice where testimony essential

to his claim of ineffective assistance of counsel would

have been inadmissible at trial). To prove prejudice under

the federal constitution, a petitioner must demonstrate that

there was a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 US at 694.

To summarize, to show that he was prejudiced by

his trial counsel’s failure to procure evidence, petitioner had

to proffer evidence at the post-conviction trial that would

have been admissible at his criminal trial and that had a

tendency to affect the outcome of that trial.

The threshold question in this case is whether key

parts of petitioner’s expert witness testimony were scientific

evidence. Whether evidence is “scientific” is a legal question

that we review for legal error. State v. Trujillo, 271 Or App

785, 786, 353 P3d 609, rev den, 358 Or 146 (2015). Evidence

is considered scientific if it “draws its convincing force from

some principle of science, mathematics and the like.” Brown,

297 Or at 407.

“Under Brown and O’Key, scientific evidence is admissible

if it is relevant under OEC 401, helpful to the trier of fact

under OEC 702, and not subject to exclusion under OEC

403. Underpinning the entire admissibility analysis, however,

is the requirement that the evidence be shown to be

scientifically valid. To determine that issue, and depending

on the nature of the evidence in question, a court may be

required to consider a number of factors, including:

“ ‘(1) The technique’s general acceptance in the field;

“ ‘(2) The expert’s qualifications and stature;

“ ‘(3) The use which has been made of the technique;

“ ‘(4) The potential rate of error;

878 Brenner v. Nooth

“ ‘(5) The existence of specialized literature;

“ ‘(6) The novelty of the invention; and

“ ‘(7) The extent to which the technique relies on the

subjective interpretation of the expert.’ ”

State v. Perry, 347 Or 110, 121, 218 P3d 95 (2009) (quoting

Brown, 297 Or at 417 (internal citations and footnotes

omitted)).

In determining whether proposed expert witness

testimony is scientific evidence, and therefore subject to

Brown and O’Key, the key issue is “whether the expert’s assertions

possess significantly increased potential to influence

the trier of fact as scientific assertions.” State v. Marrington,

335 Or 555, 562, 73 P3d 911 (2003) (internal quotation

marks omitted). “In other words, if jurors would view the

evidence as having ‘an unusually high degree of persuasive

power’ because of the perception that it is based on scientific

assertions, then the underlying foundation for the evidence

must be valid.” State v. Dulfu, 282 Or App 209, 214-15, 386

P3d 85 (2016), rev allowed, 361 Or 100 (2017) (quoting O’Key,

321 Or at 291-92). The line between nonscientific expert testimony

and scientific expert testimony “may be fine, but it

is not artificial.” State v. Rambo, 250 Or App 186, 195, 279

P3d 361 (2012), rev den, 353 Or 203 (2013). “The distinction

is that specialized expert opinion evidence based on a

witness’s training and experience draws its force from that

training and experience, but not necessarily from the mantle

of science.” State v. Cuevas, 263 Or App 94, 109, 326 P3d

1242 (2014), aff’d, 358 Or 147, 361 P3d 581 (2015) (internal

quotation marks and brackets omitted).

In this inquiry, we and the Supreme Court have

considered the content of an expert’s proffered testimony,

the manner in which the expert is presented to the factfinder,

and the relationship between the expert’s conclusions

and the expert’s expertise. So, for example, an expert

witness who has a background in science and who “claims

that her knowledge is based on studies, research, and the

literature in the field, announces to the factfinder that

the basis of her testimony is ‘scientific,’ i.e., is grounded on

conclusions that have been reached through application of

a scientific method to collected data.” Marrington, 335 Or

Cite as 283 Or App 868 (2017) 879

at 563-64. Additionally, when an expert witness “couches

her testimony in the vocabulary of scientific research,” we

have concluded that the expert “effectively announces to the

jury that the basis of her testimony is ‘scientific.’ ” State v.

Lusareta, 270 Or App 102, 108, 346 P3d 514 (2015) (internal

quotation marks and brackets omitted).

However, where an expert’s testimony “did not

involve the vocabulary of scientific research,” was based

on personal experience, and did not suggest to the court

that the expert’s opinions “were grounded on conclusions

that have been reached through application of a scientific

method to collected data,” that testimony was not scientific

evidence. State v. Clemens, 208 Or App 632, 639, 145 P3d

294 (2006), rev den, 342 Or 299 (2007) (internal quotation

marks omitted); see also Cuevas, 263 Or App at 110 (expert

witness’s testimony not scientific where it was “explicitly

framed in terms of [the expert’s] own career, training, and

experience,” and “did not refer to studies, research, scholarly

literature, or anything else that would cause a jury to infer

that her testimony was based on more than her personal

experience”).

Turning to the evidence challenged in the present

case, we conclude that the parts of Julien’s and Cantrell’s

testimony challenged by the state—principally, the testimony

of each regarding brain chemistry and its impact on

petitioner’s mental state—drew their persuasive force “from

the mantle of science,” Cuevas, 263 Or App at 109, and held

“an unusually high degree of persuasive power” because a

factfinder would have perceived them to be “based on scientific

assertions,” Dulfu, 282 Or App at 214.

We analyze Cantrell’s and Julien’s testimony separately,

starting with Julien’s testimony. His testimony to the

post-conviction court largely breaks down into three components.

First, Julien testified about the effect of alcohol on

the brain and the role of memory—or, specifically, the lack

of memory—as an indicator of an advanced state of intoxication

that he termed “drug-induced reversible dementia,”

or “organic dementia.” Second, Julien estimated petitioner’s

blood-alcohol content (BAC) at the time of the incident with

E was at least 0.4 percent. And third, Julien testified that

880 Brenner v. Nooth

it was his opinion to a degree of “medical certainty” that

petitioner was in a state of “organic dementia” at the time

he touched E and would have been “incapable of forming

intent.” On appeal, the state does not challenge the admissibility

of Julien’s estimate of petitioner’s BAC; the state challenges

only the first and third component described above—

Julien’s testimony related to brain chemistry, memory, and

alcohol, and Julien’s opinion as to petitioner’s mental state

at the time of the incident. Accordingly, the following analysis

is confined to those aspects of Julien’s testimony.

As noted, Julien testified at petitioner’s postconviction

trial. Additionally, the post-conviction court

admitted into evidence a separate declaration by Julien in

which he stated that, having reviewed the files in petitioner’s

case, it was his opinion that, at the time of the incident,

petitioner “could not meet the Oregon definition of intent

or intentional behavior.” Julien explained that petitioner

“had no memory of the incident, demonstrating a state of

alcohol-induced dementia. In this state, he lacked the ability

to form intent as required to meet the Oregon definition

of intent.” Julien elaborated that, “[i]n other words, alcohol

intoxication will prevent the formation of memories and the

blood alcohol content can enable an individual to lack the

ability to form memories or intentional behavior required to

meet the Oregon definition of intent.” Julien asserted that

the opinions expressed in the declaration “constitute my

conclusions to a degree of medical certainty based on information

commonly relied upon by experts in my field.” Julien

added:

“According to the standards of my profession, I have applied

appropriate scientific principles as reliable [to] the facts of

this case. The principles relied upon by me are supported

by testing, common peer-reviewed articles, appropriate

error rates, and their acceptability in the relevant scientific

community.”

In his testimony to the post-conviction court, Julien

expanded on his opinion that, as a result of petitioner’s intoxication

and as evidenced by his lack of memory, petitioner

was incapable of forming a culpable mental state at the time

he touched E. In doing so, Julien first grounded his testimony

in his scientific background and scholarship. Julien

Cite as 283 Or App 868 (2017) 881

described his educational and professional background,

which included a series of undergraduate and advanced

degrees in medicine and science, more than two decades

practicing anesthesiology at a Portland-area hospital, and

extensive teaching and scholarship in the areas of pharmacology

and anesthesiology. He stated that he had written

“the very first textbook on psychopharmacology,” which was

in its thirteenth edition. Julien explained that his textbook

“had a chapter on alcohol, devoted to alcohol,” and that he

had “taught the pharmacology of alcohol for many, many

years as part of my psychopharmacology teaching.” Julien

then explained:

“[Alcohol] basically affects most of the brain, primarily

acting at GABA and glutamate cells. In the hippocampus

of the brain, the drug affects the formation of memory

proteins by blocking the formation of these proteins off of

your DNA. This is what is responsible for what is termed

a ‘blackout.’ It’s actually a state of drug-induced reversible

dementia, just like the organic dementias that we see in

society. My textbook has always called it ‘drug-induced

reversible dementia.’ As part of that, and even before that,

the drug depresses our frontal cortex, which makes up a

large percentage of the human cortex, basically depressing

those neurons and inducing a demented state by reducing

neuronal activity.”

Julien went on to explain that alcohol intoxication

impairs the frontal cortex of the brain, which is responsible

for “executive functioning,” and that “the best index we

have of executive functioning, the state of the frontal cortex,

is by using the ability to form memory as a marker of

impairment.” Therefore, he asserted, the lack of memory

from intoxication “is associated with major impairment of

our executive functioning.” Julien testified that, based on

the amount of alcohol that petitioner reported drinking,

he would have had a blood-alcohol content “to a degree of

medical certainty in excess, at about or in excess of about

.4 grams percent.” Julien then testified as follows:

“Q. When [petitioner] is in the blackout period that

he doesn’t remember, would you, from your knowledge of

how much alcohol he drank, believe that he had diminished

capacity?

882 Brenner v. Nooth

“A. Yes, ma’am.

“Q. Would he have been able to form any type of criminal

state of mind at that point?

“A. He certainly would be incapable of forming intent.

And I have authored a paper on that topic. He would have

been—in my opinion, he would have been in a severely

demented state, similar to somebody with an organic

dementia like Alzheimer’s dementia. And in that state, it

is my opinion, one should be held to the same culpability as

someone with organic dementia.

“Q. So could you say to a reasonable medical certainty

that he was, in fact, in that state of dementia on this day?

“A. The estimated BAC, which is self-report, certainly

would put one in a state of blackout or drug-induced dementia.

And of course, that is self-report also, that someone

says they cannot remember, but it’s corroborated by an estimated

BAC in which virtually everyone would be in that

state.

“Actions in that state are often referred to as an autonomous

state or somnambulism sleep activities. Others have

referred to it as being mentally unconscious, although I

don’t believe there’s a legal definition of conscious. But this

would be someone that I could consider to be, you know, to

be anesthetized.”

In light of the foregoing, we conclude that the challenged

aspects of Julien’s testimony—his testimony related

to brain chemistry, memory, and alcohol, and his opinion

as to petitioner’s mental state at the time of the incident—

are scientific evidence. Julien presented himself as a scientific

researcher and asserted that his knowledge was

“based on studies, research, and the literature in the field,”

and “grounded on conclusions that have been reached

through application of a scientific method to collected data.”

Marrington, 335 Or at 563-64. Further, Julien’s trial testimony

was couched “in the vocabulary of scientific research,”

Lusareta, 270 Or at 108, and fundamentally drew its persuasive

force not from Julien’s personal experience, but “from

the mantle of science,” Cuevas, 263 Or App at 109.

The essence of Julien’s testimony was not all that

different from what petitioner’s trial counsel asserted in

Cite as 283 Or App 868 (2017) 883

his arguments to the jury: Petitioner was too intoxicated to

have “knowingly” touched E and that the jury could judge

petitioner’s intoxication by his lack of memory. Julien’s testimony,

however, is significantly more persuasive precisely

because of Julien’s scientific background and expertise, and

his use of scientific research and principles to reinforce that

assertion. In sum, Julien’s testimony “draws its convincing

force from some principle of science, mathematics and the

like,” and the trier of fact would have perceived the testimony

as “scientific” evidence. Brown, 297 Or at 407.5

We turn now to consider Cantrell’s proffered testimony.

Cantrell’s testimony can be summarized as follows:

(1) she had diagnosed petitioner with PTSD, among other

mental health disorders; (2) she believed that petitioner’s

PTSD had been triggered by various events the day of

the party and that those events drove petitioner to drink

heavily so as to “self-medicate” the anxiety he was feeling;

(3) PTSD can cause a surge of adrenaline that can interfere

with a person’s mental functioning; and (4) it was her

opinion, “at the time of the incident, that [petitioner] was

operating at a diminished capacity, due to the fact that his

adrenaline interfered with his higher level cognitive functioning.”

The state challenges only the last two of those components

of Cantrell’s testimony, and we narrow our analysis

accordingly.

At the post-conviction trial, the post-conviction court

admitted into evidence a report by Cantrell in which she

concluded that petitioner “meets the clinical criteria for Post

Traumatic Stress Disorder, Depression, Anxiety, Alcohol

Abuse and Sleep Disorder.” Cantrell stated in her report

that, having interviewed petitioner, it was her opinion that

5 We note that we have previously considered the exclusion of similar testimony

by this same expert, Julien, albeit in a different context. In State v. Hazlett,

269 Or App 483, 495, 345 P3d 482 (2015), we concluded that a trial court erred in

excluding testimony by Julien that was similar to the testimony at issue in this

case—in short, that intoxication could result in a state of dementia that effects

a person’s ability to form intent. In Hazlett, however, the issue was whether the

trial court had erred in concluding that Julien was not “qualified” to render that

testimony, as required by OEC 702, because he was a pharmacologist and not a

psychologist. Id. at 494. We did not consider in Hazlett whether Julien’s proposed

testimony was scientific evidence and, if so, whether the science underlying that

testimony comported with the requirements of Brown and O’Key.

884 Brenner v. Nooth

he was “triggered by multiple events” prior to and during

the party, particularly the violent movie, which “triggered

flashbacks” to traumatic events petitioner had experienced

during his service in the Vietnam War. As a result of those

events and petitioner’s ingrained military training and

experience, Cantrell explained, petitioner “automatically

reverted to his intrinsic skills of survival. This is initiated

and primed through the activation of neuro-chemicals and

adrenaline with the objective only to survive.” Cantrell ultimately

concluded that, at the time petitioner touched E, he

“was operating at a diminished capacity, due to the fact that

his adrenaline interfered with his higher level cognitive

functioning.”

In her testimony at the post-conviction trial,

Cantrell described herself as a mental health counselor

and a “certified trauma specialist” with expertise in PTSD.

She noted that she had a doctorate in clinical psychology,

that her research during graduate school focused on PTSD,

and that she had written books on the subject as well. She

testified that she had diagnosed petitioner with PTSD and

that sufferers of PTSD frequently use alcohol to “numb

out their feelings, their emotional pain. We call that ‘selfmedication.’

” She stated that petitioner was “already in a

state of arousal” when he arrived at the party, that “there

were indicators” during the evening that petitioner “was

having some issues with some post-traumatic stress behaviors,”

and that the violent movie “activated” him.

On cross-examination, Cantrell was pressed to

explain her conclusion that petitioner was operating at

diminished capacity as a result of the adrenaline in his

system. Cantrell stated, “My understanding, when I look

at post-traumatic stress, when I look at how the effects of

adrenaline on someone’s cognitive ability, their executive

functioning diminishes under the influence of a substance

and under the influence of adrenaline.” When pressed further,

Cantrell explained that “I would say that it affects

judgment and it affects the higher functioning of executive

functioning.” Cantrell also explained that PTSD “puts [veterans]

back into their primal level function and it takes

away their ability to make higher-level function capabilities.

Their executive functioning is not intact and * * * they resort

Cite as 283 Or App 868 (2017) 885

back to the primal level of function * * * we call it the ‘reptilian

brain’ in my world.”

As with Julien, we conclude that Cantrell’s testimony

related to brain chemistry and functioning, and its

relationship to petitioner’s mental state, would be perceived

by a factfinder as scientific. In considering Cantrell’s testimony,

the Oregon Supreme Court’s opinion in Marrington

is instructive. In Marrington, the court considered whether

the testimony of a “program manager and clinical supervisor”

at a private nonprofit organization that specialized in

treatment of sexually abused children was “scientific” evidence.

335 Or at 558. At issue was the witness’s assertion

that “delayed reporting” was “a predominant feature of disclosure

in otherwise verified cases of child sexual abuse.” Id.

at 560. The court noted that

“this court has made it clear that expert testimony concerning

matters within the sphere of the behavioral sciences

possesses the increased potential to influence the trier of

fact as scientific assertions, just as expert testimony dealing

with the ‘hard’ sciences does.”

Id. at 561; see also Jennings v. Baxter Healthcare Corp., 331

Or 285, 304, 14 P3d 596 (2000) (scientific evidence subject

to requirements of Brown and O’Key even though science

involved is not “hard” science). Turning to the witness’s testimony,

the court in Marrington emphasized that the expert

witness had stated that she held “undergraduate and postgraduate

degrees in the field of psychology, a behavioral science”

and that she was “licensed by the State of Oregon and

is a nationally certified counselor.” 335 Or at 562. Further,

she had “stated that she was familiar with the ‘recent literature

and research in the area of sexual abuse of children.’

The reference to ‘research’ implies a scientific foundation,

with the results published in the ‘literature’ of the

area of study.” Id. at 563. The court noted that the witness’s

testimony involved “the vocabulary of scientific research”

and that she implied that her theories had been confirmed

empirically. Id. The court then concluded:

“An expert like [this witness], who has a background in

behavioral sciences and who claims that her knowledge is

based on studies, research, and the literature in the field,

886 Brenner v. Nooth

announces to the factfinder that the basis of her testimony

is ‘scientific,’ i.e., is grounded on conclusions that have been

reached through application of a scientific method to collected

data. Because that is how the factfinder would understand

it, a court has a duty to ensure that such information

possesses the necessary indices of scientific validity.”

Id. at 563-64.

Similarly, Cantrell is an expert “who has a background

in behavioral sciences and who claims that her knowledge

is based on studies, research, and the literature in the

field.” Id. Her testimony describing how PTSD affects brain

functioning involved the vocabulary of scientific research

and scientific jargon. Of particular significance, Cantrell, at

various points in her testimony, implied that her opinions or

assertions came not from her personal experience, but could

be attributed generally to her field—for example, stating

that “we call [PTSD sufferers’ use of alcohol] ‘self-medication’

” or, in describing changes to the brain when PTSD is

triggered, stating that “we call it the ‘reptilian brain’ in my

world.” (Emphases added.) A jury would have perceived her

testimony related to PTSD’s effect on brain chemistry, and

its relationship to petitioner’s mental state, as scientific and,

accordingly, we conclude it is scientific evidence subject to

the requirements of Brown and O’Key.

As the proponent of scientific evidence, petitioner

had the burden of showing at the post-conviction trial that

such evidence would have been admissible at the criminal

trial. Tracy, 252 Or App at 170. In assessing whether scientific

evidence is admissible, a reviewing court considers the

various factors outlined in Brown and O’Key. As noted, the

factors listed in Brown include “general acceptance in the

field,” “potential rate of error,” the existence of “specialized

literature,” and the “novelty” of the scientific assertions at

issue. Brown, 297 Or at 417; see 283 Or App at 877-78. In

O’Key, the Oregon Supreme Court incorporated additional,

largely overlapping, factors articulated by the United States

Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,

509 US 579, 113 S Ct 2786, 125 L Ed 2d 469 (1993). 321

Or at 306. Those four factors are (1) “whether the theory

or technique in question can be (and has been) tested”;

Cite as 283 Or App 868 (2017) 887

(2) “whether the theory or technique has been subject to peer

review and publication”; (3) “the known or potential rate of

error and the existence of operational standards controlling

the technique’s operation”; and (4) “the degree of acceptance

in the relevant scientific community.” Id. at 303-05 (internal

quotation marks omitted). The Oregon Supreme Court has

emphasized that the factors in Brown and O’Key “are not

exclusive and are not to be used as a mechanical checklist

requiring an affirmative finding with respect to each factor”;

rather, “[w]hatever factors may be relevant in a particular

case, the party offering the scientific evidence at issue

* * * has the burden of establishing that it is scientifically

valid.” Perry, 347 Or at 122.

Despite the state’s objection that the proposed testimony

was scientific evidence, petitioner did not seriously

undertake to demonstrate to the post-conviction court that

the science underpinning the challenged assertions by

Cantrell and Julien was valid under the factors outlined in

Brown and O’Key.6 More importantly for this appeal, petitioner

does not even argue before us that he met the requirements

of Brown and O’Key. Rather, he contends that Julien

and Cantrell did not present “scientific” evidence as contemplated

by Brown and O’Key and that their testimony would

have been admissible for other reasons.7

First, petitioner argues that Julien’s and Cantrell’s

testimony would have been admissible under the Oregon

evidence rule regulating the use of expert witnesses, OEC

702, which states:

“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.”

6 In opposing the state’s motion to exclude Julien’s testimony, petitioner, in a

footnote, cited to three articles apparently dealing with scientific studies relating

to alcohol and the brain. However, those articles were not admitted into evidence

at the post-conviction trial and do not otherwise appear in the record.

7 In addition to the arguments summarized above, petitioner made other,

less-developed arguments throughout the post-conviction proceedings, as well as

on appeal before us, as to why the testimony of Julien and Cantrell is admissible.

We reject those arguments without discussion.

888 Brenner v. Nooth

Petitioner contends that both Julien’s and Cantrell’s testimony

would have been admissible under OEC 702 solely as

“technical or other specialized knowledge” and therefore was

not “scientific” evidence. As such, petitioner argues, it was

subject only to the general requirements of OEC 702: that

the testimony “assist the trier of fact to understand the evidence

or to determine a fact in issue,” and that the witness

be “qualified as an expert by knowledge, skill, experience,

training or education.” The post-conviction court appeared

to adopt this reasoning when it stated in its general judgment

that “[b]oth Julien and Cantrell qualify as expert witnesses

based on their training and experience. They each

have specialized knowledge and experience that would assist

the trier of fact.” See 283 Or App at 874 (emphases added).

However, as we have just discussed, we conclude

that the challenged evidence is scientific and, as scientific

evidence, it is subject to the additional requirements

of Brown and O’Key. As noted in Brown, the legislature, in

adopting OEC 702, explicitly left it to the courts “to adopt a

new approach to the admissibility of scientific evidence.” 297

Or at 408 (noting that the legislative commentary to OEC

702 states that the legislature “leaves for judicial decision

the standard to be used in determining the admissibility of

novel scientific evidence”). The Supreme Court did that in

Brown, and again in O’Key, and the criteria of those cases

apply here.

Second, petitioner argues that, because the legislature

has enacted a statute authorizing a voluntary intoxication

defense to rebut the mental state element of a crime,

the scientific validity of Julien’s testimony has already been

accepted by the legislature and his testimony is therefore

admissible. Petitioner cites ORS 161.125(1), which states:

“The use of drugs or controlled substances, dependence

on drugs or controlled substances or voluntary intoxication

shall not, as such, constitute a defense to a criminal

charge, but in any prosecution for an offense, evidence that

the defendant used drugs or controlled substances, or was

dependent on drugs or controlled substances, or was intoxicated

may be offered by the defendant whenever it is relevant

to negative an element of the crime charged.”

Cite as 283 Or App 868 (2017) 889

Accordingly, petitioner argues, any concerns about the

validity of Julien’s theory went to the weight afforded that

evidence by the factfinder, not its admissibility. However,

petitioner is mistaken that ORS 161.125(1) creates blanket

admissibility for any and all evidence related to a criminal

defendant’s intoxication. Rather, that statute speaks

to the relevance of such evidence; evidence offered for that

purpose still must meet any applicable requirements for

admissibility.

In sum, petitioner offered testimony by Julien and

Cantrell in support of his claim for post-conviction relief.

Parts of the testimony of each expert witness would have

been perceived by a factfinder as scientific, and therefore

constitute “scientific” evidence subject to the requirements

of Brown and O’Key. As explained, petitioner had the burden

of proving before the post-conviction court that such testimony

would have been admissible at trial. Petitioner did not

meet that burden with regard to Julien’s testimony that (1) a

person’s lack of memory is an indicator that the person is in

a state of “organic dementia” and, therefore, is unable to possess

a culpable mental state, and (2) in his opinion, petitioner

was in such a state at the time he groped E and, therefore,

was incapable of forming intent, or was in an “autonomous

state” and “mentally unconscious.” Petitioner also did not

meet that burden with regard to Cantrell’s testimony that

(1) PTSD can cause a surge of adrenaline that affects brain

functioning, and (2) it was her opinion that petitioner was

operating at diminished capacity at the time he touched E

as a result of PTSD-triggered adrenaline interfering with

his cognitive functioning. Because petitioner failed to establish

that those parts of Julien’s and Cantrell’s testimony

were admissible, the post-conviction court erred in concluding

that the testimony would have been admissible at petitioner’s

criminal trial.

We pause to note that, in this opinion, we do not

rule on the actual validity of the science underlying each

expert’s testimony. The issue in this case is whether petitioner

proved at his post-conviction proceeding that his trial

counsel’s allegedly deficient representation prejudiced petitioner.

As we have noted, prejudice in this case required a

890 Brenner v. Nooth

showing that the relevant evidence would have been admissible

at his trial which, in turn, required petitioner to prove

that the proffered testimony of Cantrell and Julien, as scientific

evidence, met the requirements of Brown and O’Key. We

conclude only that petitioner did not meet that burden and,

as a result, that the post-conviction court erred in determining

that Julien’s and Cantrell’s testimony would have been

admissible at his trial.

Because our ruling pertains only to the challenged

parts of that testimony, other parts of Julien’s and Cantrell’s

testimony—such as Julien’s estimate of petitioner’s BAC

and Cantrell’s diagnosis of petitioner’s military servicerelated

PTSD—are untouched by this opinion. We turn now

to consider whether, in the absence of the challenged testimony,

the record before us nevertheless supports the postconviction

court’s finding of prejudice on petitioner’s second

claim. Whether petitioner has demonstrated prejudice is a

question of law. Ashley v. Hoyt, 139 Or App 385, 399 n 8, 912

P2d 393 (1996).

Petitioner’s claim of inadequate assistance of counsel

to the post-conviction court was that his attorney was

constitutionally deficient for failing to develop a defense theory

based on petitioner’s military history, his PTSD, and his

intoxication. Although petitioner’s counsel did, in fact, touch

on each of those themes in arguing to the jury for an acquittal,

petitioner asserted in his claim that his attorney was

nevertheless ineffectual because he failed to procure expert

witness testimony. Specifically, petitioner argued that such

expert witness testimony could have affected the outcome

of the trial by negating either the mens rea requirements of

petitioner’s charges or the volitional act requirement of the

actus reus. The post-conviction court appeared to adopt that

reasoning, concluding in its judgment that “[t]he best defense

in this case is alcohol and PTSD,” and that petitioner’s

trial counsel was deficient by failing to call on veteranspecific

resources in preparing the case. In finding that

petitioner suffered prejudice, the post-conviction court highlighted

the testimony of the expert witnesses, but stated

only that “[t]he experts would have testified to enough that

there is a reasonable likelihood it would have affected the

outcome.”

Cite as 283 Or App 868 (2017) 891

However, as explained in this opinion, the same evidence

petitioner advanced to undercut the mens rea or actus

reus elements of petitioner’s offense is the same evidence we

conclude should have been excluded by the post-conviction

court because petitioner failed to establish a scientific foundation

for its admissibility. So, although the state does not

challenge Cantrell’s testimony regarding petitioner’s military

history, her diagnosis of PTSD, and her opinion that

petitioner’s PTSD was triggered the night of the party, without

some evidence explaining how those issues could have

affected petitioner’s mental state, there is little likelihood

that her unchallenged testimony could have affected the

outcome of the case. See Green, 357 Or at 322-23 (explaining

that “the tendency to affect the outcome standard” for

showing prejudice “demands more than a mere possibility,

but less than probability”). The necessary link between

Cantrell’s unchallenged testimony and the elements of petitioner’s

criminal charge was Cantrell’s challenged testimony

that petitioner’s PTSD-related adrenaline rush “interfered

with his higher level cognitive functioning” and resulted in

petitioner operating at a “diminished capacity.” But, as we

have explained, petitioner failed to lay the necessary foundation

for that testimony and the post-conviction court erred

in concluding that it would have been admissible. Without

that linking testimony, we cannot say that Cantrell’s unchallenged

testimony had a tendency to affect the outcome. Nor

can we say that, but for counsel’s error, there is a reasonable

probability that the outcome of petitioner’s trial would have

been different.

As to Julien’s testimony, although the state does not

challenge the pharmacologist’s estimate of petitioner’s BAC,

that evidence is not so different from the various eyewitness

accounts of petitioner’s heavy intoxication that were admitted

at petitioner’s criminal trial such that we could conclude

that the inclusion of Julien’s BAC analysis would have had a

tendency to affect the outcome. Rather, the parts of Julien’s

testimony that could have affected the outcome of petitioner’s

criminal trial are those parts that cast doubt on whether

petitioner could have acted consciously, “knowingly,” or with

the required intent—viz., Julien’s testimony discussing the

link between alcohol, memory, and intentional behavior, and

892 Brenner v. Nooth

Julien’s assertion that petitioner’s lack of memory indicated

that he was in a state of dementia in which he “could not

meet the Oregon definition of intent or intentional behavior.”

As with Cantrell, those parts of Julien’s testimony required a

scientific foundation and, without such a foundation, cannot

prove prejudice in his case. Accordingly, we conclude that,

for the reasons above, petitioner failed to show that he was

prejudiced by his trial counsel’s failure to procure expert

testimony related to his military history, PTSD, and alcohol

issues. The post-conviction court erred in so concluding.

That would ordinarily conclude our review—that

is, having concluded that the post-conviction court erred in

granting petitioner post-conviction relief as to his second

claim, we would simply reverse that part of the judgment

but otherwise affirm. However, the circumstances here are

not ordinary.

As previously noted, 283 Or App at 870 n 1, petitioner

raised four claims to the post-conviction court. In

his fourth claim for relief, petitioner argued to the postconviction

court that his trial counsel was ineffective for failing

to move to merge his two “convictions.” In its judgment,

the post-conviction court stated that, as to the fourth claim,

“[t]he two convictions should have merged.” Ultimately, the

court entered a judgment providing, in pertinent part:

“Petitioner’s petition for [post-conviction relief] is granted.

Judgment from trial court vacated and the matter returned

for new trial.”

Having now concluded that the post-conviction

court erred in granting petitioner post-conviction relief as

to his second claim, the post-conviction court must reassess

the relief, if any, to which petitioner is entitled. Accordingly,

we reverse the judgment and remand for the post-conviction

court to enter a judgment consistent with this opinion.

On appeal, reversed as to petitioner’s second claim

for post-conviction relief and remanded for entry of judgment

consistent with this opinion. On cross-appeal, affirmed.