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State v. McDonnell

Supreme Court of Hawaii

August 28, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
WILLIAM MCDONNELL, Petitioner/Defendant-Appellant


          Craig W. Jerome for petitioner

          Stephen K. Tsushima for respondent



          RECKTENWALD, C.J.

         William McDonnell was found guilty of sexually assaulting his minor daughter (Minor) in November 2013. On appeal to the Intermediate Court of Appeals (ICA), McDonnell argued that the family court improperly admitted the testimony of the State's expert witness, Dr. Alexander Bivens. Dr. Bivens testified with regard to the dynamics of child sexual abuse, including delayed reporting and underreporting by victims of abuse, and "grooming" techniques typically used by abusers. Bivens' testimony included statistics regarding how often abuse occurs in the child's home, and how frequently it involves individuals who are known to the child. McDonnell argued that Dr. Bivens' testimony was irrelevant, was unduly prejudicial, and improperly profiled McDonnell as a child molester. The ICA affirmed McDonnell's conviction, and he now seeks review in this court.

         This case requires us to consider how expert testimony can properly assist a jury in understanding the relationship between victims of child sexual abuse and their abusers. As we explained in State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990), "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse[.]"

         We conclude that the family court did not abuse its discretion in admitting most of Dr. Bivens' testimony since the testimony helped explain the interaction between Minor and McDonnell, and its probative value outweighed its prejudicial effect. While we further conclude that the statistical evidence should not have been admitted, that error was harmless beyond a reasonable doubt.

         Accordingly, we affirm the ICA's judgment on appeal.

         I. Background

         McDonnell was charged with three counts of sexual assault in the first degree[1] (Counts I, II, and III) and three counts of sexual assault in the third degree[2] (Count IV, V, and VI) in the Family Court of the First Circuit[3] for six separate acts that occurred on or about November 1, 2012.

         A. Trial Proceedings

         1. Motions in Limine

         McDonnell filed a motion in limine asking the family court to exclude Dr. Bivens' testimony as irrelevant and overly prejudicial. In response, the State filed a motion in limine asking the court to admit Dr. Bivens "as an expert witness on the dynamics of child sexual assault."

         McDonnell filed a second motion in limine asking that the court exclude evidence regarding the "general area of the dynamics of child sexual assault" as "irrelevant, confusing or misleading" under HRE Rules 401[4] and 403.[5] He noted that Dr. Bivens planned to testify to "actions said to be commonly performed by the so-called typical sexual abuser and the typical characteristics of a sexual abuser, i.e., 'profile evidence, ' as exhibited in the 'abuse process' and 'grooming process.'" He argued that such expert testimony was not relevant, had the potential to bolster Minor's credibility, and risked profiling him as a sex offender.

         The family court held a hearing on the parties' motions in limine. In response to defense counsel's arguments that Dr. Bivens' proposed testimony was based on "statistics for studies which the defendant's not a part of and has [sic] nothing to do with this case, " the family court stated:

Well, isn't it the jurors['] credibility to determine credibility? Because the jurors going to be instructed that the expert testimony can be disbelieved by them, okay. And doesn't that goes [sic] to credibility of the witness, such as like, for example, your client is saying, well, you know, this person has a motive to accuse me of these crimes and, therefore, you want all these letters and e-mails come in, wouldn't Dr. Bivens be the same? His credibility is on trial.

         The family court ruled that Dr. Bivens would be allowed to testify because testimony on the "phenomena of child abuse" is relevant under Batangan. The court noted that, if Dr. Bivens testified to statistics, the defense could "challenge him on those studies."

         2. Trial Testimony: Minor and Mother

         At trial, the State presented Minor and McDonnell's wife, Minor's mother (Mother), among other witnesses. Minor was thirteen years old at the time of trial.

         Mother testified that she and Minor typically slept in a separate bedroom than McDonnell. She testified that Minor fell asleep in McDonnell's bedroom on November 19, 2012, and that McDonnell said not to wake her.

         Minor testified that, while she slept in McDonnell's bed that night, she woke up around 2:00 a.m. because she felt a hand on her thigh. Minor testified that McDonnell moved his hand into her underwear, rubbed her vagina, and inserted a finger into it. Minor testified that she "sat there dumbstruck" and "wanted it to stop." She testified that she turned her back to McDonnell, but he did not stop, so she left the room.

         Minor testified that she went into the bedroom where Mother was sleeping, but did not wake Mother up because she had to work in the morning. Minor testified that, when she woke the next morning, Mother had already left for work. Minor testified that, later that day, she told Mother that McDonnell "had touched [her] that night."[6]

         Mother testified that she then talked to McDonnell about what Minor told her. Mother told McDonnell "don't do that again because it's a crime, " and then told him to "apologize to [Minor]." She testified that McDonnell responded "yes." When Mother asked McDonnell why he did it, he replied, "I don't know, " and added, "I'm so sorry." After that night, they did not talk any more about the incident, and nobody called the police.

         Minor testified to several other incidents where McDonnell touched her in a sexual way. For example, during one incident she "was sitting on his computer ordering this game and then he kind of came up behind me and he kind of like groped my boobs." Minor also testified that McDonnell gave her a "sexual hug" where he "put his hands like down my pants and . . . touch[ed] my butt." In another incident, Minor testified that she asked for a foot massage, and McDonnell moved his hands up her leg and inserted his finger into her vagina. Another time, she asked for a back massage, and McDonnell "massage[d] my butt and then . . . put his finger inside my butt hole." Minor also testified to an incident where McDonnell took pictures of her while she was undressed and "after taking the pictures he like put his mouth on my vagina and started like kissing it and sucking on it." Minor explained that she did not report the abuse to Mother at that time because "I didn't want to see my mom sad."

         Minor also discussed a pattern of trading sexual contact for things that she wanted. She testified that McDonnell "came up with the term 'benefits' to get stuff I wanted." She explained that "benefits" meant that "I would willingly let him touch me to get what I wanted" and that "I wouldn't tell anybody[.]" She would generate a "wish list" of expensive items, and when she asked McDonnell to buy them, "[h]e would kind of pull out the term 'benefits.'"

         Minor testified that the last time McDonnell touched her was on a Saturday or Sunday. According to Minor, McDonnell put his hands down her pants, "touched my butt and kind of like massage[d] it, " and then "tr[ied] to touch my vagina." When McDonnell wanted to touch her the next day, Minor testified that she was "fed up" and "wouldn't do it, " and that he said "you know one day I'll screw you." Minor became "really mad" and responded "one day I'll kill you for all the pain you caused me." She then "slammed the door in his face" and left.

         The following Monday, on January 14, 2013, Minor went to school and told her school counselor about the incidents with McDonnell. Minor's school then notified the police.

         On cross-examination, Minor admitted that after McDonnell was arrested, she "hacked" his computer and made purchases using his Amazon account. Minor also admitted that she told the police detective that she did not look at pornography, and that she was lying when she told the officer that.

         3. Trial Testimony: Dr. Wayne Lee

         The State also presented Dr. Wayne Lee, an expert regarding the "examination of individuals for alleged sexual assault[.]" Dr. Lee testified that he examined Minor on January 14, 2013, and that Minor described "an incident that occurred 48 hours previous to [the] exam between her and [McDonnell]." Dr. Lee testified that he followed "a check off list asking specific questions relative to a sexual assault." He asked Minor whether her genitals were penetrated, and Minor stated that her vagina was penetrated by McDonnell's fingers.

Dr. Lee also testified to other questions on his list:
[Dr. Lee]: The other check marks that she answered in affirmative was whether or not William McDonnell had fondled her. And she said he touched my butt, I said stop. And also with regard to masturbation, I asked her if he had tried to put his hand on her genital area. And her response was yes. And that I asked . . . what she meant by that. She said he was massaging it, meaning her genital area.
[State]: And did she say anything with regard to touching or penetration of her anus?
[Dr. Lee]: When I asked about the penetration of her anus she indicated no.

         Dr. Lee testified that Minor told him that the abuse had occurred "more than 20 times" since September 2012.

         Dr. Lee testified that after going through the questions, he asked Minor "if there was anything else you want to add." Minor then answered that McDonnell "inserted his finger in my asshole twice" since September 2012. During the physical examination, Dr. Lee did not see any injuries or detect any physical abnormalities, but opined that fewer than half of patients "that present like Minor did" would have injuries at the time of examination.

         4. Trial Testimony: Dr. Bivens

         The State called Dr. Bivens, who first testified as to his qualifications. These qualifications included a Ph.D. in clinical psychology, [7] a postdoctoral fellowship in Kaua'i "in a program that serves underserved youth in the community, " and experience in private practice, where he treated "maybe 700 or 800" adolescent patients. Defense counsel reasserted his objection to Dr. Bivens' testimony, and the family court overruled the objection, reasoning:

In following Batangan and State versus Silva . . . the expert testimony in Silva explained the girl's, perhaps, bizarre behavior like going back into the room. I don't know. So, over your objection, there is some relevance in some expert testimony to assist the jurors with scientific and complex type of issue.

         The court thus qualified Dr. Bivens as an expert in "clinical psychology with a subspecialty in child sexual abuse."

         Dr. Bivens testified that he uses the term "molestation" interchangeably with the term "sexual abuse." When asked if molestation usually involves physical force, he responded, "Well, usually not, and so probably 80 percent of the time there's not any real physical force involved." Based on the research and literature on the relationship between victims of child sexual abuse and molesters, Dr. Bivens testified that "85 percent of the time, . . . the child has a pre-existing nonsexual relationship with [his or her] molester."

         Dr. Bivens stated that "there's a documented phenomenon called incest when the molester is living in the child's own home is somehow affiliated with the family, whether they're a direct blood member or stepparent or an uncle that's living in the home." When asked whether "the research say[s] where child sexual abuse usually occurs[, ]" Dr. Bivens responded:

A. Yes, it does. And so there are two studies that I usually rely on, large numbers of -- you know, so large number meaning more than 100 molesters talking about where they commit their crimes. So 100 percent of incest offenders report molesting in their own home, and even non-incest offenders will molest in the child's own home. So it's usually in the child's home or the molester's home. . . .

         Dr. Bivens testified that "the most typical thing for a child to do when [he or she has] been molested is not tell anybody for a long time." Dr. Bivens testified about studies in which a majority of abused children delayed disclosing their abuse for over one month. He also testified about a study in which children did not disclose that their genitalia had been touched by a doctor, noting that there is "some natural tendency that children [would] not . . . want to talk about that type of touching." Dr. Bivens also explained a study on over two hundred incest survivors that indicated that "they were being subjected to sexual relations to a relative, [but that] they let it go on without telling anybody for a significantly long period of time."

         Dr. Bivens described studies identifying the reasons for nondisclosure by child victims of sexual assault. One study found that victims expected themselves to be blamed and therefore "were embarrassed, . . . didn't want to upset anybody, and . . . expected not to be believed." Another study found that victims felt scared, did not want to get in trouble, felt that no one would believe them, embarrassed, and did not want to get anybody else into trouble.

         Dr. Bivens testified that two studies demonstrate that a sexually abused child will most likely report the abuse to mothers and close friends. Regarding what triggers a child to finally disclose the sexual abuse, one study identified "an anger inducing event where the child feels that [he or she is] being subjected to still more unfairness perhaps at the hands of [his or her] perpetrator or someone related to [him or her]." Dr. Bivens described another trigger is "the proximity of the offender, " e.g., "if the offender leaves the child's sphere they may feel more safe, better able to disclose."

         Dr. Bivens was then asked to discuss the "abuse process, " and he explained that there are four primary methods in which molestation is committed: "[s]educing and testing, masking sex as a game, emotional and verbal coercion, and taking advantage of a child in a vulnerable position."

         According to Dr. Bivens, "[s]educing and testing refers to how a molester will establish a healthy touching relationship with a child in advance of any sexual contact." The molester then slowly incorporates sexual touching into the healthy touching relationship. The molester "tests" the child by "monitoring the child's responses for any type of startle or any type of upset."

         Dr. Bivens testified that masking sex as a game is similar to seducing and testing; the only difference is that it starts with "a playful touch relationship, " such as "tickling, wrestling, carrying around, [and] swinging around." Thereafter, the child molester slowly incorporates sexual touching into the playful touch relationship.

         Dr. Bivens described emotion and verbal coercion as often involving a "sort of bargaining or bribing -- if you give me this, I'll give you that." Dr. Bivens gave examples, like "giving gifts or giving treats, " "withholding punishments[, ]" or guilt tripping in order to emotionally and coercively obtain sex from the child.

         Lastly, Bivens discussed "taking advantage of a child in a vulnerable position" as most often referring "to approaching a sleeping child." In those instances, most of the children are in fact awake, "but . . . were playing possum because they didn't know what to do, and the sex offense continues in that fashion."

         As to the completeness of the initial disclosures of sexually abused children, Dr. Bivens identified a study involving college students who had reported being molested as children:

[The college students] were simply asked: What was your initial disclosure like when you first told somebody? How much of what happened did you tell? And about 75 percent said that they just gave some very vague, you know, general descriptions of what had happened -- some touching that was inappropriate, when in fact it may have been much more elaborate than that.

         Another study compared the disclosures made by sexually abused children and the sexual abuse documented on confiscated video tapes. Dr. Bivens testified:

The researchers compared what the children said happened to them with what was actually captured on the videotape. And what they found was that the children, in those three days, reported roughly half of the number of incidents and also half the severity of incidents that was actually represented on the videotapes. . . . And so what they found is that, you know, kids who had been penetrated were not talking about being penetrated. Kids who had been forced to perform oral sex were not disclosing certain of those kinds of details. And so what we know now in that same study some additional researchers came in, and eventually many of the kids were able to get to the point where they could disclose, but it took much more than the initial three days.

         Defense counsel moved to strike this testimony on incomplete disclosures, arguing that it was "extremely prejudicial" by "inviting the jury to speculate" that McDonnell did something more severe than what Minor already disclosed. The court asked whether this testimony would explain to the jury why Minor did not disclose all of the alleged instances of abuse to Dr. Lee. Defense counsel responded that the testimony may be probative in that respect, but was more prejudicial for insinuating "the rule not the exception" is that more abuse occurs than what is disclosed. The court overruled the objection, reasoning that Dr. Bivens said "it could be 50 percent accurate, 50 percent not accurate, " which is not "an overwhelming percentage."

         Dr. Bivens further testified that episodes of child sexual abuse "tend to be a more memorable event itself" and opined that there is "reason to believe that the memories of the event itself tend to be good." However, "the nature of those memories are consistent with other forms of traumatic memory such that the event itself loomed so large that peripheral details tend to blur." Hence, there is "tunnel memory" with respect to recollection of child sexual abuse, "where the event itself is recalled well, but . . . the clothes that [the child was] wearing, maybe the time of day or . . . certain things get to be blurred in the way the memory is reported on by the child."

         When asked whether there is a profile to a typical child molester, Dr. Bivens answered that "there is not" and that it is not possible to look at "demographic characteristics" or "personality characteristics" to determine whether someone is a child molester. Dr. Bivens stated that "[c]hild molesters are defined by the child molestation behavior itself, not by any sort of profiling evidence or anything like that." Dr. Bivens also indicated that he was not familiar with any of the facts of the case and that he had not spoken with any of the witnesses.

         During cross-examination, Dr. Bivens acknowledged that the statistics he cited during his testimony were derived from studies that did not use the same analytical framework or procedure. Dr. Bivens also testified that the studies may have had different criteria for determining which children were actually molested, and some studies would not validate whether the child's report of sexual abuse was actually true.

          5. Closing Arguments, Verdict, and Sentencing

         Following the State's case, [8] the defense rested without presenting any evidence. In its closing, the State argued that Minor's and Mother's testimony demonstrated that McDonnell knowingly engaged in sexual penetration and sexual conduct with Minor. The State recounted Minor's testimony regarding the abuse and argued that Mother's testimony corroborates Minor's testimony. The State cited Dr. Bivens' testimony to explain why Minor delayed disclosing the abuse to her school counselor. The State noted that Dr. Bivens spoke about "triggers" such as an anger-inducing event and that Minor and McDonnell had gotten into an argument before she disclosed to her school counselor.

         The State also cited to Dr. Bivens' testimony about the abuse process, specifically "the emotional and verbal coercion." The State argued that McDonnell conditioned Minor into a "'this for that' type of relationship" and "manipulate[d] her to let him do what he wanted" by giving her things. The State stated that "Dr. Bivens talked about that."

         Defense counsel argued that the evidence presented by the State was insufficient to sustain the charges of sexual assault. Defense counsel argued that "the evidence begins and ends" with Minor and that "her credibility, how much you believe her, is everything in this case." Defense counsel stated that "[w]e would all like to believe that a child wouldn't lie, that a child wouldn't make up this kind of thing, let alone your child[, ]" but that "[w]e know sometimes kids lie." Defense counsel noted that "Dr. Bivens even acknowledged . . . that sometimes there may be people in the studies of kids who make false allegations."

         Defense counsel argued that Minor's story "doesn't make any sense with the physical evidence." Defense counsel argued that Minor's testimony had several inconsistencies and noted that Minor lied about watching pornography and hacked McDonnell's computer after he was arrested to "go on a shopping spree[.]"

         Defense counsel argued that Minor's testimony was not consistent with Dr. Bivens' testimony "about testing and nonsexual touch" because Minor had asked for massages from McDonnell. Defense counsel also emphasized that Dr. Bivens "knows nothing about the case, " has "no publications in the area, " and discussed studies using "some flaws and inconsistent methods." Defense counsel argued that Mother is "just dead set on backing up [Minor's] story out of her . . . feeling of loyalty and love for her."

         In rebuttal, the State argued that Minor's inability to recall certain details did not indicate that Minor was lying. The State noted that "Dr. Bivens told you children remember the main facts, the main stuff that happens when they're molested[, ]" but might not remember "what they were wearing" or "an exact date[.]"

         The jury found McDonnell guilty as charged in Count I of sexual assault in the first degree and counts IV-VI of sexual assault in the third degree.[9] The family court sentenced McDonnell to a term of imprisonment of twenty years.

         B. Appeal to the ICA

         On appeal, McDonnell argued, among other things, that the family court erred in allowing Dr. Bivens to testify because his testimony was inadmissible under HRE Rules 401, 403, and 702.

         The ICA held that Dr. Bivens' testimony was properly admitted, dividing the testimony into three categories. First, the ICA found that the court did not err in allowing Dr. Bivens' testimony about delayed reporting and tunnel memory by child victims. The ICA found that Minor reported two of the alleged incidents soon after they occurred, but also testified to other incidents that were not immediately reported. The ICA noted that Dr. Bivens' description of tunnel memory gave the jury context in which to evaluate Minor's giving of "different accounts as to the date of the initial abuse."

         Second, the ICA found that the family court did not err in admitting Dr. Bivens' testimony regarding incomplete reporting. The ICA reasoned that the testimony was helpful in understanding "not only [Minor's] silence after first disclosing to her mother, but also why she may not have described any details of the abuse initially."

         Third, the ICA determined that Dr. Bivens' testimony regarding the abuse process did not constitute improper profile evidence. The ICA stated that the testimony was "relevant to explain that a child may delay reporting because the molester has normalized the abuse." The ICA found that Dr. Bivens did not profile McDonnell as a sex offender, noting that Dr. Bivens "told the jury he did not know the facts of the case" and made clear that there is no profile for "a typical child molester."

         Because the ICA found Dr. Bivens' testimony to be admissible, the ICA affirmed the family court's judgment as to Count I.[10]

         In his concurring and dissenting opinion, Judge Reifurth agreed with regard to the testimony on incomplete disclosures and delayed reporting. He dissented with respect to the "abuse process" testimony because its probative value was outweighed by its potential prejudicial effect. He warned that "courts must be particularly careful to consider the degree to which common characteristic testimony of this sort undermines the foundational principles of our criminal justice system." He concluded that the family court's error in admitting the testimony was not harmless because the evidence against McDonnell was not overwhelming.

         II. Standard of Review

         A. Admission of Opinion Evidence (Expert Testimony)

         "Generally, the decision whether to admit expert testimony rests in the discretion of the trial court. To the extent that the trial court's decision is dependant upon interpretation of court rule[s], such interpretation is a question of law, which [the appellate] court reviews de novo." Barcai v. Betwee, 98 Hawai'i 470, 479, 50 P.3d 946, 955 (2002) (citations omitted).

         III. Discussion

         On certiorari, McDonnell presents the following question:

Whether the ICA gravely erred in holding that the Family Court did not err in allowing the testimony of Dr. Alexander Bivens, the State's expert on the dynamics of child sexual abuse.

         McDonnell makes three arguments challenging the introduction of Dr. Bivens' testimony. First, he argues that the ICA gravely erred because Dr. Bivens' testimony on delayed reporting, tunnel memory, incomplete disclosure, and the abuse process was irrelevant. Second, he contends that the probative value of the testimony on incomplete disclosure was substantially outweighed by the danger of unfair prejudice. Lastly, he asserts that Dr. Bivens' testimony on the abuse process and use of statistics constituted improper profile evidence and created a danger of unfair prejudice.

         We conclude the ICA correctly held that the family court did not abuse its discretion in admitting the testimony of Dr. Bivens, with the exception of portions of the statistical evidence. However, the admission of that evidence was harmless beyond a reasonable doubt.

         A. The Circuit Court Exercised its Discretion in Admitting Dr. Bivens' Testimony.

         As a threshold matter, we note that the circuit court clearly exercised its discretion in admitting Dr. Bivens' testimony. The Dissent disagrees, citing State v. Hern's observation that "[t]he existence of discretion requires its exercise[, ] and a court fails to properly exercise its discretion when it bases a decision on categorical rules and not on the individual case before it." 133 Hawai'i 59, 65, 323 P.3d 1241, 1247 (App. 2013). Dissent at 9. Hern was a consolidated appeal in which two defendants challenged the dismissal of criminal charges without prejudice. Id. at 60, 323 P.3d at 1242. For the first defendant, the trial court stated that its dismissal was "based on its 'typical practice on [HRPP] Rule 48.'" Id. at 65, 323 P.3d at 1242. For the second defendant, the trial court did not state a reason for its dismissal without prejudice. Id. at 62, 323 P.3d at 1244. The ICA vacated the trial court's judgments: Regarding the first defendant, the ICA concluded that the trial court applied a blanket rule where it should have exercised its discretion; regarding the second defendant, the ICA concluded that the record was inadequate to meaningfully review whether the trial court exercised its discretion, as transcripts from relevant hearings were missing from the record on appeal. Id. The instant case is thus distinguishable from Hern, as the circuit court did not rely on a blanket policy in allowing Dr. Bivens' testimony, and the record on appeal is adequate for this court to review its decision.[11]

         The Dissent asserts that in the present case the circuit court "based its determination on a categorical rule that Batangan deemed such evidence to be somewhat relevant and thus admissible." Dissent at 11. This characterization is not supported by the transcript of the circuit court's ruling on this issue, which states: "In following Batangan and State versus Silva . . . the expert testimony in Silva explained the girl's, perhaps, bizarre behavior like going back into the room. . . . So, over your objection, there is some relevance in some expert testimony to assist the jurors with scientific and complex type of issue." An oral ruling such as this can support multiple interpretations upon close reading, but the fact that the court referenced Batangan does not mean that it abdicated its discretion. Rather, it merely indicates that the court considered relevant precedent when it determined that Dr. Bivens' testimony was admissible.

         B. Dr. Bivens' Testimony Regarding Child Victims of Assault was Relevant Under HRE Rule 702.

         McDonnell argues that delayed reporting, tunnel memory, and incomplete disclosure "played no significant role in this case, " and thus Dr. Bivens' testimony was irrelevant. He also argues that testimony regarding the abuse process and the accompanying statistics "were completely irrelevant to explaining any behavior on the part of Minor." McDonnell further asserts that Dr. Bivens' testimony "did almost nothing to assist the jury in ascertaining truth in relevant areas outside the ken of ordinary laity" because the record does not indicate that "[Minor's] behavior was, to average people, superficially ...

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