TO THE INTERMEDIATE COURT OF APPEALS CAAP-14-0000355; FC-CR.
W. Jerome for petitioner
Stephen K. Tsushima for respondent
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.
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
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
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.
we affirm the ICA's judgment on appeal.
was charged with three counts of sexual assault in the first
degree (Counts I, II, and III) and three
counts of sexual assault in the third degree (Count IV, V,
and VI) in the Family Court of the First
Circuit for six separate acts that occurred on
or about November 1, 2012.
Motions in Limine
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."
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 and
403. 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.
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.
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."
Trial Testimony: Minor and Mother
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.
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.
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.
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."
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.
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."
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.'"
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.
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.
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
Trial Testimony: Dr. Wayne Lee
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
testified that Minor told him that the abuse had occurred
"more than 20 times" since September 2012.
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.
Trial Testimony: Dr. Bivens
State called Dr. Bivens, who first testified as to his
qualifications. These qualifications included a Ph.D. in
clinical psychology,  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
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
court thus qualified Dr. Bivens as an expert in
"clinical psychology with a subspecialty in child sexual
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]
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. . . .
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
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
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."
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
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."
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
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
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."
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.
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.
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."
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."
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
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
5. Closing Arguments, Verdict, and
the State's case,  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
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."
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."
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[.]"
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."
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
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. The family court
sentenced McDonnell to a term of imprisonment of twenty
Appeal to the ICA
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.
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
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."
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."
the ICA found Dr. Bivens' testimony to be admissible, the
ICA affirmed the family court's judgment as to Count
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.
Standard of Review
Admission of Opinion Evidence (Expert Testimony)
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).
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
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.
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.
The Circuit Court Exercised its Discretion in Admitting Dr.
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.
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.
Dr. Bivens' Testimony Regarding Child Victims of Assault
was Relevant Under HRE Rule 702.
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,