STATE v. WAGNER (2022)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Kenneth Sheridan WAGNER, Defendant-Appellant.

A173918

Decided: July 27, 2022

Before Mooney, Presiding Judge, and Joyce, Judge, and Hadlock, Judge pro tempore.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services for petition.

Defendant seeks reconsideration of our decision in State v. Wagner, 319 Or.App. 399, 509 P.3d 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.

JOYCE, J.

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