State v. Seevanhsa

495 N.W.2d 354, 1992 Iowa App. LEXIS 307, 1992 WL 425188

• Court: Court of Appeals of Iowa
• Decided: November 30, 1992
• Docket: 91-1105
• Status: Published

Opinions

OXBERGER, Chief Justice.

Chareun Seevanhsa appeals his conviction, following a jury trial, of incest in violation of Iowa Code section 726.2 (1987). He contends the district court erred in: (1) admitting expert testimony concerning the child sexual abuse accommodation syndrome, and (2) admitting testimony of prior sexual acts.

I. Background Facts and Proceedings

The State charged Seevanhsa with three counts of third-degree sexual abuse and one count of incest. The charges arose from four alleged incidents of incestuous behavior with his daughter, B.S., occurring between late 1987 and May 13, 1990. B.S., age seventeen, had told her high school counselor that her father had been sexually and physically abusing her for eleven years.

Prior to trial, the district court sustained motions in limine filed by both parties. Seevanhsa’s jury trial commenced on April 30,1991. The State elicited testimony from a child protective center coordinator, Katie Boley, regarding child sexual abuse accommodation syndrome (GSAAS). Seevanhsa objected to the State’s presentation of such testimony during the State’s case-in-chief on the basis it impermissibly bolstered the complainant’s testimony. The State made an offer of proof, and the district court overruled the objection, ruling the testimony was admissible to rebut the defendant’s claim during the cross-examination of the victim that B.S. had fabricated the story to escape from her traditional Laotian upbringing. After testifying she had interviewed B.S., Ms. Boley explained the characteristics of the syndrome.

Seevanhsa also objected to B.S.’s testimony regarding alleged incestuous acts pri- or to the crimes charged. The district court overruled these objections. The jury acquitted Seevanhsa on the sexual abuse charges and convicted him on the incest charge. The district court denied Seevan-hsa’s posttrial motions. The district court entered judgment on June 27, 1991, and sentenced Seevanhsa to an indeterminate prison term not to exceed five years.

Seevanhsa appeals.

We review for an abuse of discretion. In order to show an abuse of discretion, one generally must show that the court exercised its discretion “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976) (quoting State v. Burnor, 132 Vt. 603, 326 A.2d 138, 140 (1974)).

II. Admissibility of Expert Testimony Regarding Child Sexual Abuse Accommodation Syndrome

Seevanhsa contends the district court erred in allowing Katie Boley’s testimony regarding the CSAAS. He maintains the State presented Boley’s testimony for the purpose of improperly bolstering B.S.’s credibility. He points out Boley’s testimony coincided with many of the specifics of B.S.’s testimony.

In view of the increasing number of reported cases of child sexual abuse and the accompanying perception that child sexual abuse is a major social problem, prosecutors have increasingly sought to use expert opinion testimony concerning the psychology of the child complainant in their efforts to obtain convictions. See David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology, 1 (1986).

Numerous courts have wrestled with whether and under what circumstances expert testimony regarding CSAAS may be admitted. Our discussion necessarily begins with a discussion of the rules governing admissibility of expert testimony. Iowa Rule of Evidence 702, adopted from Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The advisory note to Federal Rule of Evidence 702 provides guidance in applying this evidentiary rule and states:

Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained lay[person] would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” (citations omitted).

The question of whether expert testimony regarding CSAAS will assist the trier of fact was recently addressed by the Michigan Supreme Court:

Advocates of the use of expert testimony in [child] sexual abuse cases suggest that without expert testimony jurors cannot properly assess an individual’s reaction to a sexual assault.¹ A victim’s reactions to a sexual assault, especially if the assailant is a family member, are unique to the particular crime. This uniqueness puts the evidence beyond the jury’s ability to properly evaluate the facts in issue without the assistance of expert testimony.² In addition, experts generally agree that reactions of sexual assault victims vary significantly from those of a victim of the average crime.³ The findings of professional research suggest that there are many seemingly inconsistent responses to the trauma of the incident which require some form of explanation.

People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 401-402 (1990) (footnotes included).

Additionally, it is generally accepted that the jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission. See People v. McAlpin, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 387, 812 P.2d 563, 568 (1991).

Finally, our supreme court, in State v. Myers, 382 N.W.2d 91, 96-97 (Iowa 1986), reviewed the law in other jurisdictions regarding the admissibility of expert testimony in child sexual abuse cases. The court noted:

In summary, it seems that experts will be allowed to express opinions on matters that explain relevant mental and psychological symptoms present in sexually abused children....

Id. at 97.

We hold expert testimony regarding CSAAS may, in some instances, assist the trier of fact to both understand the evidence and to determine facts in issue.

The question then becomes under what circumstances and with what limitations may expert testimony regarding CSAAS be admitted.

Some jurisdictions allow CSAAS experts to testify regarding the credibility of witnesses. See, e.g., State v. Kim, 64 Haw. 598, 645 P.2d 1330, 1333 (1982). However, this is clearly impermissible in our jurisdiction. See State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986).

Other jurisdictions allow CSAAS experts to testify that the child’s symptoms are consistent with those of a sexually abused child, even though the indirect effect of such testimony bolsters the complainant’s credibility. In State v. Myers, 359 N.W.2d 604, 609 (Minn.1984), the court held admissible expert testimony regarding symptoms of CSAAS present in the alleged victim in that case. While the court acknowledged that helpful, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, it held testimony describing the syndrome and the symptoms present in the victim helped the jury understand the evidence and determine facts in issue. Id. See also State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1218-1220 (1983) (testimony regarding behavior as consistent with syndrome elements held not to invade the province of the jury).

Some courts allow expert testimony regarding CSAAS only to explain to the jury conduct which might otherwise appear unusual or inconsistent. In State v. Moran, 151 Ariz. 378, 728 P.2d 248, 254 (1986), a case factually similar to the case before us, expert testimony was allowed to rebut claims of the victim’s motivation to lie. The court explained:

[The] defendant claimed that the victim’s accusations were prompted by anger over discipline imposed by her parents. Testimony providing the jury with an alternative explanation for the victim’s anger was admissible to assist the jury in determining what had motivated the initial charges against defendant.

Id. See also Wheat v. State, 527 A.2d 269, 273-274 (Del.Supr.Ct.1987) (expert may testify in order to address issues of delayed reporting or recantation but cannot testify regarding victim’s credibility in terms of statistical probabilities); State v. Reser, 244 Kan. 306, 767 P.2d 1277, 1279 (1989) (expert’s testimony served to rebut defense claim of fabrication).

In the case before us, the expert limited her discussion of CSAAS to generalities. She did not testify she believed the complainant was credible nor did she testify that she believed the complainant had been sexually abused. She limited her discussion to an explanation of the symptoms common to children who have been sexually abused.

The defendant complains this testimony impermissibly bolsters the complainant’s testimony. Clearly her testimony in no way directly bolsters B.S.’s testimony, since the expert never gave an opinion as to B.S.’s credibility. Whatever indirect effect the expert’s testimony may have to bolster B.S.’s testimony is not problematic here; the defendant placed B.S.’s credibility in question when he alleged she fabricated sexual abuse allegations in an attempt to escape her father’s insistence upon a strict Laotian upbringing. Once the witness’s credibility is attacked, expert testimony is admissible to rehabilitate the witness. State v. Dodson, 452 N.W.2d 610, 612 (Iowa App.1989).

Boley testified on matters which explained relevant mental and psychological symptoms present in sexually abused children. We hold Boley’s testimony assisted the trier of fact in both understanding the evidence and determining the facts in issue. We hold the trial court did not abuse its discretion in allowing the expert’s testimony.

III. Admissibility of Evidence of Other Acts

Next, Seevanhsa contends the trial court abused its discretion in admitting the complainant’s testimony regarding the defendant’s prior sexual acts with her. See-vanhsa claims the prior sexual acts which the State successfully presented to the jury were both remote in time and insufficiently established by clear proof to warrant admission.

Ordinarily, evidence of other crimes, wrongs, or acts is not admissible if it is offered to show only that the defendant is a bad person and to show he acted in conformity with past incidents. See Iowa R.Evid. 404(b). We have previously recognized a special exception to this rule in sex abuse cases. This exception permits the use of prior acts “to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.” State v. Tharp, 372 N.W.2d 280, 281 (Iowa App.1985) (citing State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981)).

“Remoteness in time of the prior acts ... is a factor to be considered, but not the only factor. If the evidence is highly probative, it may be admitted even though the acts were remote in time.” Tharp, 372 N.W.2d at 281 (citing State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985)). In the present case, the complainant alleged Seevanh-sa had been sexually abusing her throughout a period of approximately ten years. As we stated in Tharp, the fact that the prior acts were remote in time goes to the weight of the evidence, not to its admissibility. Id. at 281-282. The trial court did not abuse its discretion in allowing the complainant’s testimony notwithstanding the remoteness in time of the acts to which the testimony pertained.

Seevanhsa further argues the prior acts were insufficiently established by clear proof to warrant admission. Having thoroughly reviewed the complainant’s testimony, we do not believe the “clear proof” rule precludes admission of the prior acts testimony. “Commission of prior acts need not be established beyond a reasonable doubt. The purpose of the rule is to prevent the jury from engaging in speculation or drawing inferences based on mere suspicion.” Spargo, 364 N.W.2d at 209. “Adding a corroboration requirement to our clear proof rule is not necessary to accomplish the purposes behind the rule when a victim’s testimony, standing alone, satisfies the requirement of clear proof.” State v. Jones, 464 N.W.2d 241, 243 (Iowa 1990).

Here, the complainant’s testimony was sufficiently credible and detailed to inform the jury about the prior acts of sexual abuse. The jury was not put in the position of having to speculate about the prior acts based on mere suspicion. See Id. at 243. Accordingly, the trial court did not abuse its discretion in permitting the complainant's testimony regarding the prior sexual abuse acts.

AFFIRMED.

All Judges concur except SACKETT, J., who specially concurs, and SCHLEGEL, J., who dissents.

1 . "The American Psychiatric Association, in its definition of posttraumatic stress disorder has stated that understanding the development of characteristic symptoms following a psychologically distressing event ... is outside the range of usual human experience_ Diagnostic & Statistical Manual of Mental Disorders § 309.89, n. 15 (3d rev. ed.) (1987). Rape and assault are included within the list of stressors which could produce posttraumatic stress disorder.” People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 401 n. 33 (1990).

2 . "In State v. Middleton [294 Or. 427], 657 P.2d 1215 (Or.1983), the Oregon Supreme Court relied on the responses of the jury pool during voir dire to support its conclusion that the average individual is unfamiliar with the emotional trauma associated with sexual assault..." Id., 456 N.W.2d at 401-02 n. 34.

3 ."Generally, courts draw comparisons to crimes against property. In State v. Myers, 359 N.W.2d 604, 610 (Minn.1984), the court reasoned that jurors have the competence within their common experience to test the credibility of witnesses for ‘most crimes’. For example, ‘[i]f the victim of a burglary failed to report the crime promptly, a jury would have good reason to doubt that person’s credibility.’ ’’