DYKMAN, J.
Kenneth Lamb appeals from a judgment convicting him of two counts of first degree sexual assault and one count of enticing a child for immoral purposes, and from an order denying his motions for post-conviction relief. The dispositive [456] issues are: (1) whether the evidence was sufficient to convict on the enticing charge; and (2) whether the testimony of an expert as to the general characteristics of sexually abused children and her own observation of the victim’s behavior in this case was an opinion on the victim’s credibility within the meaning of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).
Because the only evidence was that the victim was either carried into the room where the sexual assaults were committed, or was already in the room when Lamb entered it, we conclude that the state failed to prove an essential element of the enticement charge: that the victim was "persuaded” or "enticed” into the room within the meaning of sec. 944.12, Stats. We therefore reverse that conviction. We also conclude that the therapist’s testimony impermissibly invaded the province of the jury, and that the trial court’s error in admitting it was not harmless. We therefore reverse the sexual assault convictions and remand for a new trial.
Lamb was charged with the three offenses after O., a six year old, reported that Lamb had had sexual contact with him. At trial, O. testified that the incidents with Lamb occurred in the bedroom and bathroom of Kathleen Lamb’s home. Kathleen Lamb testified that Lamb was alone in the house with O. at various times during the period in which the assaults were alleged to have been committed. Lamb denied that any of the incidents occurred. The jury found Lamb guilty on all three counts and the trial court denied his post-conviction motions. Other facts will be discussed below.
[457] I. EVIDENCE OF ENTICEMENT
Section 944.12, Stats., defines the crime of enticement as follows: "Any person 18 years of age or over, who, with intent to commit a crime against sexual morality, persuades or entices any child under 18 years of age into any vehicle, building, room or secluded place is guilty of a Class C felony.” Lamb contends that there was insufficient evidence to convict him of the offense because the evidence was undisputed that he either forcibly carried O. into Lamb’s bedroom or encountered him in the bathroom.
When a defendant challenges the sufficiency of the evidence, the test is "whether the evidence adduced, believed, and rationally considered by the jury was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” State v. Koller, 87 Wis. 2d 253, 266, 274 N.W.2d 651, 658 (1979). If the jury could have drawn the appropriate inference from the evidence to find Lamb guilty, we must sustain the verdict. State v. Alles, 106 Wis. 2d 368, 377, 316 N.W.2d 378, 382 (1982). The state argues that the evidence here supports the inference that Lamb’s actions "operated to persuade rather than force [O.] to acquiesce in [the] acts_” We disagree.
First, we do not consider Turner v. State, 76 Wis. 2d 1, 250 N.W.2d 706 (1977), to be, as the state argues, dispositive. In Turner, the defendant stated that when the victim, a nine-year-old girl who was out "trick-or-treating” on Halloween entered his house, he "'sort of helped her into the bedroom,’” where he sexually assaulted her. Id. at 4, 7, 15, 250 N.W.2d at 708, 710, 713. The court held that the statement permitted the jury to infer that "there was sufficient persuasion [458] exercised ...Id. at 15, 250 N.W.2d at 713. In this case, however, the only testimony on the point was O.’s. He stated unequivocally that, while others in the house were napping, Lamb "would grab me and take me up” to the bedroom. O. also testified that some of the sexual activity took place in the bathroom and that he was either carried there or was already in the room when Lamb came in.
The pattern jury instruction gives the following definition of "persuade” and "entice,” as those terms appear in sec. 944.12, Stats:
The words "persuade” and "entice” have the same meaning and consist of some act or words intended to lure or coax or attract another in order to cause that person to do something the other person would not otherwise do. In determining whether a child was enticed, you may take into consideration, as to each party, age, mental development, relationship to each other, sophistication or lack thereof, and all other facts and circumstances shown by the evidence.
Wis J I — Criminal 1530. The definition is in accord with Webster’s Third New International Dictionary, which defines "entice” as "to draw into evil ways: lead astray: TEMPT: ... LURE,” and "persuade” as "to induce by argument, entreaty, or expostulation ...: plead with: URGE: ... bring about by argument and persuasion_” Id. at 757, 1687.
There was no evidence of enticement. The only evidence is that Lamb picked up O., carried him into a room and assaulted him. O. testified that he did not want this to occur. Lamb did not "coax,” "lure,” "tempt” or "persuade” O.
[459] II. THE THERAPIST’S TESTIMONY
A child and family therapist, experienced in working with sexually abused children, testified about children’s responses to sexual abuse and the emotional and other problems typically associated with abused children.1
The trial court, relying on Haseltine, indicated that it would allow the therapist to testify "as far as whether an incest victim would immediately or not immediately report the incest or may recant any accusation of incest.” The district attorney responded that he "intended to ask [the therapist] about the late reporting question because that’s specifically an issue in this case.”
The district attorney asked the therapist: "Based on your training and experience, what kinds of psychological or emotional problems are commonly seen in sexually abused children?” The therapist testified that such children exhibit poor concentration, low self-esteem, anger, aggression, guilt, anxiety, fear, and problems in school.2 She also testified that [460] sexually abused children frequently draw pictures of people with distorted body images.
The district attorney then asked the therapist what she observed about O. during therapy. The therapist testified that O. exhibited anger and fear toward his father, aggressive behavior, fear of leaving home, bedwetting, school problems, and he drew figures with distorted body images.3 The therapist [461] made no reference to O.’s not having immediately reported the assaults.
Free access — add to your briefcase to read the full text and ask questions with AI
DYKMAN, J.
Kenneth Lamb appeals from a judgment convicting him of two counts of first degree sexual assault and one count of enticing a child for immoral purposes, and from an order denying his motions for post-conviction relief. The dispositive [456] issues are: (1) whether the evidence was sufficient to convict on the enticing charge; and (2) whether the testimony of an expert as to the general characteristics of sexually abused children and her own observation of the victim’s behavior in this case was an opinion on the victim’s credibility within the meaning of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).
Because the only evidence was that the victim was either carried into the room where the sexual assaults were committed, or was already in the room when Lamb entered it, we conclude that the state failed to prove an essential element of the enticement charge: that the victim was "persuaded” or "enticed” into the room within the meaning of sec. 944.12, Stats. We therefore reverse that conviction. We also conclude that the therapist’s testimony impermissibly invaded the province of the jury, and that the trial court’s error in admitting it was not harmless. We therefore reverse the sexual assault convictions and remand for a new trial.
Lamb was charged with the three offenses after O., a six year old, reported that Lamb had had sexual contact with him. At trial, O. testified that the incidents with Lamb occurred in the bedroom and bathroom of Kathleen Lamb’s home. Kathleen Lamb testified that Lamb was alone in the house with O. at various times during the period in which the assaults were alleged to have been committed. Lamb denied that any of the incidents occurred. The jury found Lamb guilty on all three counts and the trial court denied his post-conviction motions. Other facts will be discussed below.
[457] I. EVIDENCE OF ENTICEMENT
Section 944.12, Stats., defines the crime of enticement as follows: "Any person 18 years of age or over, who, with intent to commit a crime against sexual morality, persuades or entices any child under 18 years of age into any vehicle, building, room or secluded place is guilty of a Class C felony.” Lamb contends that there was insufficient evidence to convict him of the offense because the evidence was undisputed that he either forcibly carried O. into Lamb’s bedroom or encountered him in the bathroom.
When a defendant challenges the sufficiency of the evidence, the test is "whether the evidence adduced, believed, and rationally considered by the jury was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” State v. Koller, 87 Wis. 2d 253, 266, 274 N.W.2d 651, 658 (1979). If the jury could have drawn the appropriate inference from the evidence to find Lamb guilty, we must sustain the verdict. State v. Alles, 106 Wis. 2d 368, 377, 316 N.W.2d 378, 382 (1982). The state argues that the evidence here supports the inference that Lamb’s actions "operated to persuade rather than force [O.] to acquiesce in [the] acts_” We disagree.
First, we do not consider Turner v. State, 76 Wis. 2d 1, 250 N.W.2d 706 (1977), to be, as the state argues, dispositive. In Turner, the defendant stated that when the victim, a nine-year-old girl who was out "trick-or-treating” on Halloween entered his house, he "'sort of helped her into the bedroom,’” where he sexually assaulted her. Id. at 4, 7, 15, 250 N.W.2d at 708, 710, 713. The court held that the statement permitted the jury to infer that "there was sufficient persuasion [458] exercised ...Id. at 15, 250 N.W.2d at 713. In this case, however, the only testimony on the point was O.’s. He stated unequivocally that, while others in the house were napping, Lamb "would grab me and take me up” to the bedroom. O. also testified that some of the sexual activity took place in the bathroom and that he was either carried there or was already in the room when Lamb came in.
The pattern jury instruction gives the following definition of "persuade” and "entice,” as those terms appear in sec. 944.12, Stats:
The words "persuade” and "entice” have the same meaning and consist of some act or words intended to lure or coax or attract another in order to cause that person to do something the other person would not otherwise do. In determining whether a child was enticed, you may take into consideration, as to each party, age, mental development, relationship to each other, sophistication or lack thereof, and all other facts and circumstances shown by the evidence.
Wis J I — Criminal 1530. The definition is in accord with Webster’s Third New International Dictionary, which defines "entice” as "to draw into evil ways: lead astray: TEMPT: ... LURE,” and "persuade” as "to induce by argument, entreaty, or expostulation ...: plead with: URGE: ... bring about by argument and persuasion_” Id. at 757, 1687.
There was no evidence of enticement. The only evidence is that Lamb picked up O., carried him into a room and assaulted him. O. testified that he did not want this to occur. Lamb did not "coax,” "lure,” "tempt” or "persuade” O.
[459] II. THE THERAPIST’S TESTIMONY
A child and family therapist, experienced in working with sexually abused children, testified about children’s responses to sexual abuse and the emotional and other problems typically associated with abused children.1
The trial court, relying on Haseltine, indicated that it would allow the therapist to testify "as far as whether an incest victim would immediately or not immediately report the incest or may recant any accusation of incest.” The district attorney responded that he "intended to ask [the therapist] about the late reporting question because that’s specifically an issue in this case.”
The district attorney asked the therapist: "Based on your training and experience, what kinds of psychological or emotional problems are commonly seen in sexually abused children?” The therapist testified that such children exhibit poor concentration, low self-esteem, anger, aggression, guilt, anxiety, fear, and problems in school.2 She also testified that [460] sexually abused children frequently draw pictures of people with distorted body images.
The district attorney then asked the therapist what she observed about O. during therapy. The therapist testified that O. exhibited anger and fear toward his father, aggressive behavior, fear of leaving home, bedwetting, school problems, and he drew figures with distorted body images.3 The therapist [461] made no reference to O.’s not having immediately reported the assaults.
In Hoseltine, a psychiatrist testified as to patterns of behavior incest victims generally exhibit and was then allowed to give his expert opinion that there "'was no doubt whatsoever’ that [the defendant’s] daughter was an incest victim.” Id. at 95-96, 352 N.W.2d at 675-76. We held that the witness’s "opinion that [the defendant’s] daughter was an incest victim is an opinion that she was telling the truth,” and violated the general rule that "[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.” Id. at 96, 352 N.W.2d at 676, citing State v. Middleton, 657 P.2d 1215, 1221 (Or. 1983).
In State v. Jensen, 141 Wis. 2d 333, 415 N.W.2d 519 (Ct. App. 1987) we examined the reasons why an expert’s testimony concerning the behavior of the [462] complaining witness after a disputed assault is inadmissible as evidence that the assault occurred. We said:
[U]nder Haseltine an expert is precluded from testifying that a complainant’s behavior following an alleged sexual assault was proof that an assault occurred. The question of whether the conduct was consistent with that of a sexual assault victim is but another way of attempting to reach the impermissible conclusion that the conduct proves the assault.
In essence [the expert witness] testified that L.J.’s behavior following the alleged sexual assault demonstrated that she had been sexually assaulted. This testimony impermissibly bolstered L.J.’s credibility and her testimony that Jensen had assaulted her.
Jensen, 141 Wis. 2d at 340-41, 415 N.W.2d at 522.
Jensen, and its predecessor, Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673, hold that opinion evidence concerning behavior exhibited by sexual assault complainants is admissible only under limited circumstances.
Depending on the case, the testimony of an expert might aid the jury. For example, an incest victim may not immediately report the incest, or may recant accusations of incest. Jurors might reasonably regard such behavior as an indication that the victim was not telling the truth. An expert could explain that such behavior is common among incest victims as a result of guilt, confusion, and a reluctance to accuse a parent (citation omitted).
Haseltine, 120 Wis. 2d at 97, 352 N.W.2d at 676. [463] Accord People v. Hampton, 746 P.2d 947 (Colo. 1987); State v. Hudnall, 359 S.E.2d 59 (S.C. 1987).4 This is a better rule than one excluding this type of evidence, State v. Saldana, 324 N.W.2d 227 (Minn. 1982),5 or a rule admitting it without a limit. State v. Allewalt, 517 A.2d 741 (Md. 1986).6 This use of this type of [464] evidence prevents false assumptions on the part of the factfinder regarding the alleged victim’s credibility, yet it does not constitute an opinion as to the guilt of the defendant.
In this case, the opinion evidence was used as evidence of defendant’s guilt. Though the state stopped short of asking for the witness’ opinion, the questions as to the behavior of assault victims followed by questions as to whether O. exhibited that sort of behavior left little doubt that the witness had an opinion and what that opinion was. The purpose of this testimony was to convince the jury that defendant was guilty because the witness believed he was guilty. Haseltine and Jensen prohibit the admission of this evidence.
Because there is a reasonable possibility that the error contributed to the conviction, it is not harmless. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231-32 (1985). Therefore we reverse the sexual assault convictions and remand for a new trial.
The dissent would permit an expert witness to give an opinion as to the symptoms he or she believes are exhibited by sexually abused persons, and then give an opinion that the victim exhibited those symptoms. Using the dissent’s analysis, the expert could then be asked whether he or she had an opinion as to whether the victim had been sexually assaulted as long as the expert was not asked what that opinion was. We cannot accept this view because it legitimizes the evidence found objectionable in Haseltine and [465] Jensen by assuming the jury will not draw the very inference the evidence is designed to show. We disavow the dissent’s assertion that we question a jury’s ability to draw conclusions and inferences. That is one of a jury’s functions. Deciding questions of law, however, is a court’s function, and Haseltine and Jensen hold that certain types of evidence are inadmissible. The dissent disagrees with Haseltine and Jensen. However, whether we would reach the conclusions of those cases is irrelevant. We are bound by them. Section 752.41(2), Stats.
CONCLUSION
We reverse the enticement conviction because of the state’s failure to prove an essential element of the charge. We also reverse the sexual assault convictions for the reasons stated and remand the cause for a new trial.
By the Court. — Judgment and order reversed and cause remanded for a new trial.