State v. Plueard
State v. Plueard
Opinion of the Court
*594Defendant seeks reconsideration of our opinion in State v. Plueard ,
"When the Supreme Court remanded for further proceedings in [ State v. Henley ,363 Or. 284 ,422 P.3d 217 (2018) ], it suggested that the parties might-on remand-develop 'the evidentiary record concerning admissibility' of the proffered grooming evidence and that the trial court could then determine, in the first instance, whether the state had established the scientific validity of that evidence. It appears that, under Henley , the trial court has that option in this case on remand. If it determines that the evidence was, after all, admissible, then no new trial will be necessary."
Plueard ,
*1197We grant reconsideration, however, to address one argument that defendant makes in his petition. Reduced to its essence, that argument is that we were overly directive in the last sentence of the quoted footnote. Defendant relies on State v. Baughman ,
Defendant contends that, under Baughman , we erred by stating that "no new trial will be necessary" in this case if the trial court determines, on remand, that the grooming evidence was admissible. In response, the state asserts that it is much less likely here that a new trial will still be needed if, on remand, the state is able to lay an adequate foundation for the challenged grooming evidence because, unlike in Baughman , the purpose for which that evidence was offered will not have changed. The state acknowledges, however, "that the question whether a new trial is necessary will ultimately be one for the trial court to resolve after it reconsiders the foundational admissibility of the challenged evidence on remand." (Emphasis in state's brief.)
The state may be correct that it is less likely here than in Baughman that the trial court will determine that a new trial still is necessary, even if it ultimately determines on remand that the evidence at issue (here, the grooming evidence) was admissible. Nonetheless, we agree with defendant that we should not have foreclosed that possibility. Moreover, as we explain below, the footnote was not only too limiting, it was unnecessary.
We have emphasized that "appellate taglines must be read in the context of the opinion as a whole." State v. Barajas ,
*596In light of that understanding of our taglines, footnote 1 in our original opinion was surplusage. Our use of the "Reversed and remanded" tagline was sufficient to signal to the trial court that it would have authority, on remand from this court, to "determine the nature of the proceedings that are necessary or appropriate on remand." Baughman ,
Reconsideration allowed; former opinion modified and adhered to as modified.
Judge Aoyagi continues to dissent from the majority's holding, but she has joined in this opinion on reconsideration because she agrees that removal of footnote 1 is appropriate under the circumstances.
Reference
- Full Case Name
- STATE of Oregon, Plaintiff-Respondent v. Jameson Cole PLUEARD
- Cited By
- 10 cases
- Status
- Published