CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0001114; CR. NO. 11-1-1294)
McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J., CONCURRING, WITH WHOM NAKAYAMA, J., JOINS
This case involves the admissibility of expert testimony in child sexual abuse cases. Last Kony challenges his convictions of sexual assault of a minor on the grounds that expert testimony regarding child sexual abuse is no longer relevant, the statistical data presented during his trial was misleading and highly prejudicial, and the evidence presented during his trial improperly profiled him as a sex offender. We affirm the trial court's ruling as to the relevancy of the expert testimony in this case regarding the unique characteristics of child sexual abuse victims admitted to assist the jury "to comprehend something not commonly known or understood"--delayed reporting. State v. Batangan, 71 Haw. 552, 557-58, 799 P.2d 48, 52-54 (1990). Additionally, although we conclude that Kony did not properly preserve for appeal his argument that the expert testimony presented in this case was unfairly prejudicial or misleading, we provide guidance in light of the Intermediate Court of Appeals' analysis of this issue.
Kony was charged in the Circuit Court of the First Circuit (circuit court) with sexual assault of a minor. The charges consisted of three counts of sexual assault in the first degree and six counts of sexual assault in the third degree. The complaining witness (Minor) lived in the same household with Kony, along with six family members and one other person. Kony was the boyfriend of Minor's half-sister and father to two children in the home. Minor was fifteen years of age at the time of the alleged sexual assaults.
A. Pre-trial motion to exclude expert testimony
Prior to the start of trial, Kony filed a motion in limine to exclude the expert testimony of Dr. Alexander Jay Bivens. Kony asserted that Dr. Bivens' testimony would be irrelevant and that its probative value would be substantially outweighed by the danger of unfair prejudice, specifically Kony's propensity to commit the crime for which he was charged.
At the hearing on the motion in limine,  the State explained that the reporting of the abuse in this case was delayed and that Dr. Bivens would provide expert testimony on why delayed reporting commonly occurs in sexual abuse cases. The State expressed that its questioning of Dr. Bivens would be limited to what factors could hypothetically lead to delayed reporting. The defense expressed a concern that Dr. Bivens would testify about inaccuracies of a witness' testimony; the Court responded that such testimony would not be allowed:
THE COURT: . . . I'm not going to let the State get into that. I mean, he won't have heard the testimony. So, you know, what's his testimony on that going to be? Hypothetically I've had cases before where they, you know, they testified this way. I mean, I'm going to have to go question by question on that one. I take this motion to be though basically to preclude him from taking the stand, preclude the State from putting him on.
[Defense Counsel]: That's correct, your honor. Just, you know, basically he's, you know, from my view, not related to this case and therefore irrevelant [sic].
The circuit court ruled that it would allow Dr. Bivens to testify, but the court reiterated that if defense counsel thought any of the State's questions were objectionable, the court would rule "question by question" on any objections.
I'm going to allow the State to call him on this issue of delayed reporting. And obviously they're going to have to qualify him as an expert and then -- but that's the offer of proof and that's as far as I'm concerned what I'm going to allow as far as the testimony, and aside from that, we're just going to go question by question. [Prosecutor] will ask the question. If you think it's objectionable, you go ahead and object, [Defense Counsel], and I'll rule question by question basically.
B. Testimony adduced by State
At trial, Minor testified that from May to August 2011, Kony sexually assaulted her three times in her room at the shared home. The first incident occurred on the morning of her fifteenth birthday on May 6, 2011, just after midnight. Minor testified that she was asleep in her bedroom with her door locked but the lock could be picked with a fingernail. Minor knew it was Kony because he told her "Don't worry, be quiet, it was just him, " and she also recognized his figure and voice. Minor testified that the second incident occurred approximately two weeks later. Kony came in her bedroom, and he told her that it was him again. During the second incident, Kony told her that there would be problems if her family found out about his "coming in her room." The last incident occurred a few days before Minor reported the events to her mother on August 12, 2011.
Minor indicated that Kony was not in her room for more than five minutes during any of the incidents. Minor testified that she did not scream during the incidents because she "was shocked it happened, " but she told Kony to "get out." She also testified that she was worried about her "family being messed up, " she felt bad for her sister, and she was scared.
Minor testified that the first person she told about the incidents was her cousin who she told "[w]hile it was happening." Cousin explained that she and Minor were "very close" and that Minor "didn't know what to do and what to say to her family because [Minor] said that's her sister's boyfriend." Cousin testified that Minor told her the rape happened a single time and that Kony "tried to do other things like touch her" several other times.
Minor explained that she did not tell her parents or other family members because she was not "close" to any of them. Minor testified that she did not tell her mother until an argument occurred between them. At that time, Minor's mother was accusing her of being "bad" and asked her why she could not be more like her sisters, at which point Minor told her mother about the incidents.
Minor's mother testified that she confronted Kony, who stated that he was "sorry and he didn't know what got into him that made him do that." Kony did not state what he did, but he did tell the mother that he went inside Minor's room and "he was sorry he did it."
After the confrontation, Kony moved out of the home. Weeks later, Minor's father was informed, and he reported Minor's allegations to the police. Father also confronted Kony, and Father testified that during the confrontation, Kony apologized for being inside Minor's room.
C. Dr. Bivens' testimony
Dr. Bivens was qualified, without objection, as an expert for the State in clinical psychology with an emphasis on the dynamics of child sexual abuse. Dr. Bivens testified that he did not have any information about the case. Dr. Bivens explained that he understood he was testifying in order to provide information to the jury about the nature of child sexual abuse to assist the jury in making their own determination about the facts of the case.
The State asked Dr. Bivens where child sexual abuse usually occurs. Dr. Bivens answered in terms of whether the offender was an "incest offender" or an offender outside the family:
[Dr. Bivens:] [T]here have been a couple of -- a couple of significant studies. And when I say "significant, " I mean to say these are studies that are regarded as being done very well on this topic. And what I found was that a hundred percent of incest offenders, offenders offending against family members, committed their -- committed offenses in their own home. And what that means is that a hundred percent of incest victims experience sexual abuse within their own home.
When it's outside the family, about 50 percent of --about 50 percent, a little over 50 percent, 54 percent of offenses occur in the molester's home, and, um, a little less than 50 percent, 46 percent say, occur in the child's home. So as strangers that may seem to the layperson a lot of ...