dissenting.
I would hold that the testimony of Dr. Knapp is inadmissible. In my view, the lead opinion wrongly concludes that the admissibility requirements of State v. Brown, 297 Or 404, 687 P2d 751 (1984), do not apply. They do apply, as the decisions of the Supreme Court and this court readily demonstrate. Moreover, and contrary to the conclusion of Chief Judge Deits’s concurring opinion, those admissibility requirements have not been satisfied on the record developed by the state in this case. I therefore would reverse and remand, and, *471from the decision of this court to the contrary, I respectfully dissent.
I begin with the question whether Brown applies to Knapp’s testimony. The state’s questioning of Knapp was relatively brief. It elicited from him that he is a licensed clinical psychologist, that he received specialized training in the treatment of people who have been charged with or convicted of sexual crimes, that he has published at least one article on treating sexual offenders, that he is a member of the Association for the Treatment of Sexual Abusers, that he has testified in court on a number of occasions on the subject of sexual abuse, that he reads professional journals to keep up on developments in the treatment of sexual offenders, and that he runs a treatment program for approximately 40 male offenders. With that foundation, Knapp then testified as follows:
“Q. Based on your training and experience on the issue of sexual abuse and sexual offenders, is there a concept that you’re aware of that’s known as grooming?
“A. Yes.
“Q. And could you please explain to this jury what that concept is and what it entails?
“A. When an offender prepares a child for ultimate sexual victimization, he has to get close to the child and create a relationship with the child. And grooming is the term that’s used to describe this behavior on the offender’s part, of getting close to a child, making friends with the child, becoming perhaps a confidant of the child, getting the child used to certain kinds of touching, play activities. Most offenders that I know groom with relationship; that is, they become a confidant, friend, close associate of the child, do many things with the child, buy them gifts. Many of them expose the child to varying degrees of touching that is non-sexual in nature, but eventually leads up to sexual touching; touching on the legs, the arms, back rub, applying suntan lotion, often using legitimate reasons like that for the touching.
“Also, in grooming there’s this concept that the offender very subtly oftentimes leads the child into feeling somehow responsible. Some offenders might *472ask the child, Do you. mind if I do this? And the child, who really has no power in the relationship to begin with, doesn’t object. And so then, when the sexual molestation follows, the child feels that he or she must have been some kind of partner in this.”
On cross-examination, defendant asked if what Knapp described as “grooming” constituted a technique or a theory. Knapp explained that “[i]t’s just a description for a pattern of behavior that offenders generally go through, some more so than others.” He further explained that grooming “always needs to be interpreted in the context of a situation,” including the offender’s history, the child’s age and sex, the location of any touching, and the circumstances of that touching.
On redirect, the state expanded on that point and asked whether, if the individual in question previously had been convicted of sexual assault following preliminary, ostensibly nonsexual, touching, then such information would indicate that the individual later engaging in the same sort of ostensibly nonsexual touching in fact has engaged in grooming. Knapp replied, “yes.”
On further cross-examination, defendant questioned Knapp about that point, asking whether it made any difference whether the prior conviction was very old. Knapp replied that he would consider that fact. He then elaborated:
“I think that conclusions in this matter are not either or. I mean, they’re not either 100 percent or zero. I think they’re tentative, always, because prediction of this kind of behavior or interpretation of this kind of behavior is an interpretation based on the context of the situation in which it occurred, as I have elaborated.”
The state then pursued the matter further, posing to Knapp a fairly detailed hypothetical situation and asking him whether he would consider that to constitute grooming behavior. When Knapp answered in the affirmative, the state concluded its examination.
The lead opinion holds that the foregoing testimony does not implicate the admissibility requirements of Brown, because what Knapp said was not “scientific evidence.” *473According to the lead opinion, “scientific evidence” does not include evidence that is “based on personal observations that does not draw its convincing force from a principle of science.” 157 Or App at 455.1 cannot accept that statement of the law for two reasons. First, it is a bald tautology — scientific evidence is what draws its convincing force from science — and is essentially meaningless. I can only imagine the difficulty the bench and practicing bar will have in applying the holding of lead opinion in future cases. Second, and apart from that, I can find no support in the case law for the lead opinion’s statement of the applicable law. So far as I can tell, it rests entirely on a revisionist reading of the relevant decisions of the Supreme Court and this court.
In Brown, the Oregon Supreme Court held that, before “scientific” evidence may be admitted, the trial court must
“identify and evaluate the probative value of the evidence, consider how it might impair rather than help the fact-finder, and decide whether truthfinding is better served by exclusion or admission.” Brown, 297 Or at 409.
The court did not define precisely what is “scientific” evidence and, hence, subject to that foundational inquiry. The Supreme Court addressed that problem in State v. O’Key, 321 Or 285, 291-93, 899 P2d 663 (1995), explaining:
“This court’s definition of ‘scientific’ evidence in Brown recognizes that it is difficult to set a more definitive boundary between ‘scientific’ evidence and ‘technical or other specialized knowledge,’ which are the other types of evidence requiring expert proof. As Professors Mueller and Kirkpatrick state:
“ ‘Most expert testimony rests at least partly on science. In many areas the scientific underpinning is well established and the criteria set out in [Rules] 702 and 703 work well. The requirements are essentially three: The witness must qualify as an expert, his testimony must be helpful ([Rule] 702), and he must have an adequate basis for what he says ([Rule] 703). Under these criteria, an enormous amount of conventional scientific evidence is routinely admitted.’ Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 7.8, 990 (1995).
*474“Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert. * * * Propositions that a court finds possess significantly increased potential to influence the trier of fact as scientific assertions, therefore, should be supported by the appropriate scientific validation. * * *
* * * *
“We need not attempt precisely to distinguish ‘scientific’ from other types of expert testimony under the Oregon Evidence Code. For now, we hold that, in the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid.” (Footnotes omitted; brackets in original; emphasis added.)
Thus, contrary to the lead opinion’s reading of the cases, whether expert testimony relies on some “scientific” proposition, technique, or formula is not the point. It is, as the court explained, whether the jury likely will perceive the testimony to have a basis in science and thereby regard it with enhanced persuasive force. Id. at 292-93.
Consistent with that general principle, the cases of both the Supreme Court and this court have required that testimony concerning psychological “syndromes” or “profiles” must satisfy the requirements of Brown. For example, in State v. Milbradt, 305 Or 621, 631, 756 P2d 620 (1988), the court held that the testimony of an expert about the way child victims normally react to sexual abuse was “scientific evidence” and implicated the admissibility requirements of Brown. Similarly, in State v. St. Hilaire, 97 Or App 108, 112-13, 775 P2d 876 (1989), the state’s expert testified about the behavior of children who were victims of child abuse based on his observations of others in similar circumstances. We held that the testimony was subject to the admissibility requirements of Brown. So also in State v. Lawson, 127 Or App 392, *475395, 872 P2d 986, rev den 320 Or 110 (1994), we held that expert testimony concerning the extent to which defendant’s behavior was consistent with traits the expert had observed in many other child abusers was scientific evidence that implicated the requirements of Brown.
In my view, Knapp’s testimony is indistinguishable from the testimony in Milbradt, St. Hilaire, and Lawson. It is testimony that compares the behavior of an individual with the observed behavior of other individuals with an assumed shared trait. The jury is likely to ascribe special persuasive force to the expert’s characterization of the behaviors. Brown, therefore, must be satisfied.
The lead opinion attempts to distinguish each of the foregoing cases by recasting them as dependent upon the offering of “syndrome” evidence, which the lead opinion defines as the aggregate of signs and symptoms that constitute a “picture of the disease.” 157 Or App at 455 n 7 (quoting Stedmaris Medical Dictionary, 1379 (23d ed 1976). In other words, the majority attempts to distinguish the cases merely by appending a label to them. The label, however, has no independent significance. As we said in Lawson:
“Whether it is labeled a ‘syndrome’ or a ‘profile,’ the type of evidence proffered * * * in this case involves comparing an individual’s behavior with the behavior of others in similar circumstances who have been studied in the past.” 127 Or App at 395.
That is precisely what Knapp testified to in this case, in which he compared defendant’s behavior with the behavior of others he had observed in the past.1
Even accepting the lead opinion’s description of the cases, the testimony in this case still would be subject to Brown. According to the the lead opinion, Milbradt, St. Hilaire, and Lawson are distinguishable because “[tjhey were concerned with the admissibility of the evidence of the psychological picture of * * * individuals who physically *476abuse children.” 157 Or App at 457. That, once again, is precisely the nature of Knapp’s testimony. The state itself acknowledges that Knapp’s testimony was offered merely to provide “[gjeneral background information about how sexual abusers” go about physically abusing children.2 It is, in other words, the very “psychological picture” that — by the lead opinion’s own characterization of the case law — is subject to the admissibility requirements of Brown.
I turn, then, to the extent to which the foundational requirements of Brown were in fact met. In Brown, the Supreme Court explained that, in evaluating the foundation for the admissibility of scientific evidence, trial courts must consider the following factors:
“(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;
“(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.” 297 Or at 417.
The court also observed, in a footnote, that other factors may be relevant, including the analogy to other scientific techniques whose results are admissible, presence of safeguards in the characteristics of the technique, the nature and breadth of the inference adduced, the clarity and simplicity with which the technique can be described, and the availability of other experts to test and evaluate the technique. Id. at 417-18 n 5. The factors are designed to serve as a guide in *477evaluating the evidence. Id. They are not, however, a checklist; not all factors must be satisfied for the evidence to be admissible. Id.; see also St. Hilaire, 97 Or App at 112 (“The factors are guidelines, not a checklist.”).
Turning to Knapp’s actual testimony, I conclude that the foundation fails to satisfy the requirements of Brown. First, there was no testimony from anyone about the general acceptance of “grooming” as a descriptive term within the field. Knapp testified that it is “just a description for a pattern of behavior that offenders generally go through, some more so than others.” Knapp did not testify about who uses the description, whence it originated, on what basis it was developed or whether it is generally accepted in any field of inquiry. Second, there was no testimony about the use that is generally made of the technique. Once again, the only testimony is that Knapp uses the term as a description for a pattern of behavior. Third, what testimony there was in this case about the potential rate of error does not favor admissibility. Knapp testified that his conclusions about whether certain behavior may constitute “grooming” are “tentative, always, because prediction of this kind of behavior or interpretation of this kind of behavior is an interpretation based on the context of the situation in which it occurred.” Fourth, there is no evidence of any specialized literature on the subject of grooming behavior. The only testimony about professional literature is that Knapp wrote a single article on an unspecified topic related to treatment of sex offenders and that Knapp reads unspecified journals on the general subject of sex offender treatment. Fifth, there is no testimony about the novelty of the use or application of the behavior classification that Knapp described. Sixth, Knapp’s testimony was that the classification of grooming behavior was subjective and based almost entirely on the interpretation of an expert in light of the unique circumstances of each case. In short, the only Brown factor that favors the admissibility of the evidence is that Knapp was an expert in the field of sex offender treatment. All other Brown factors weigh against admissibility.
Judge Deits’s opinion insists that, even assuming Brown applies, under our decision in St. Hilaire, Knapp’s testimony is admissible. I disagree. At issue in St. Hilaire was the admissibility of testimony about an expert’s personal *478observations that certain behavior is typical of child sex abuse victims. He based that testimony on his interviews of 400 alleged victims of abuse, 85 to 90 percent of whom were known to have been abused. We held that the testimony was admissible under Brown, “[m]ost significantly, [because the expert] had personally interviewed over 400 alleged sex abuse victims” who were known empirically to have been abused. St. Hilaire, 97 Or App at 112-13. In testifying about the behavior typical of abused children, we noted, the expert “merely drew observations from his extensive experience interviewing them.” Id. at 113.
In contrast, there is no such record in this case. Knapp testified that grooming is “just a description for a pattern of behavior that offenders generally go through, some more so than others.” The state elicited from Knapp no foundation for that testimony. There was, most significantly, no evidence that it was based on Knapp’s personal observation of a large number of individuals who are empirically known to have engaged in grooming behavior. It may well be that his testimony was grounded in precisely such extensive personal observation and experience. The problem is that, unlike the situation in St. Hilaire, there is no such evidence in this case. As a result, Knapp’s testimony reduces to a conclusion that some unquantified percentage of an unquantified number of sex offenders of unspecified nature “groomed” their victims. Moreover, in this case — and in contrast to the expert testimony in St. Hilaire — Knapp did not merely testify from personal observation. He testified whether he would conclude that a hypothetical individual had engaged in grooming behavior on the basis of various hypothetical facts put before him. There simply is no foundation for admitting that testimony under Brown.
Judge Deits’s concurring opinion takes me to task for failing to focus on the methodology by which Knapp arrived at his conclusions about grooming. According to her, because Knapp’s testimony consisted of his observations of sexual offenders, the only real issue is whether the methodology-observation — is an accepted scientific technique. 157 Or App at 464. Because that methodology is “well accepted,” the concurring opinion concludes that Knapp’s testimony is admissible. Id. That analysis, however, is predicated on several false assumptions.
*479First, Judge Deits assumes that the exclusive focus of the Brown analysis is the validity of a particular scientific methodology and does not include the inferences drawn from that methodology. As O’Key makes clear, however, that is not the case. Brown itself refers, as an additional appropriate consideration, to the “nature and breadth of inferences adduced” from the application of a particular methodology or technique. Brown, 297 Or at 417 n 5.
Second, she assumes that Knapp’s testimony consisted solely of reports of his observations about offenders. As I have demonstrated, his testimony went well beyond that, including an affirmative response to a hypothetical question about whether facts nearly identical to those involved in this case involved grooming behavior as opposed to innocent touching.
Third, Judge Deits assumes that the methodology involved in this case — observation of only 40 offenders — is well accepted. She cites no authority for that assumption. It is, in fact, precisely the sort of assumption we are not to make in performing our gatekeeping function of screening the admissibility of scientific evidence. Brown requires the state to demonstrate that the methodology applied in this case is well accepted. The state did not do that in this case.
I wish to emphasize that my conclusions are based on the state’s evidence in this case. I express no opinion whether, in some other case and on a more complete foundational record, grooming evidence might be admissible under Brown.
Wollheim, J., and Riggs, J. pro tempore, join in this dissent.Even the state acknowledges that, in arguing that Brown does not apply to Knapp’s testimony, it is swimming against the current of the case law. The state goes so far as to suggest that one case, St. Hilaire, simply should be overruled.
At trial, the state similarly defended the admissibility of Knapp’s testimony on the ground that it provided a picture of the process of grooming generally as the context for defendant’s actions in this case:
“[Glenerally speaking, people [z.e., sex abusers] don’t all of a sudden run up to somebody and start fondling them. They engage in a slow process many times that involves grooming them, that involves maybe not touching that is liked, but touching that’s inappropriate that eventually leads to more serious touching, which is indeed exactly what this man * * * was leading up to in this particular case.”