State v. Stowers

690 N.E.2d 881, 81 Ohio St. 3d 260

Opinions

Cook, J.

An expert witness’s testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence. Therefore, the trial court did not abuse its discretion by admitting Dr. Tener’s testimony.

According to the appellate court’s formulation of the issue certified to this court, if the expert testimony at issue is inadmissible, it is because it “impermissibly conveys to the jury the expert’s belief the child was actually abused.” It is permissible, however, for an expert to convey this belief to the jury. Evid.R. 704 provides that opinion evidence is not objectionable solely because it embraces an ultimate issue of fact. We have applied this rule to expert testimony in child sexual abuse cases: “In Boston, this court determined that expert testimony on the ultimate issue of whether sexual abuse has occurred in a particular case is helpful to jurors and is therefore- admissible pursuant to Evid.R. 702 and 704.” State v. Gersin (1996), 76 Ohio St.3d 491, 494, 668 N.E.2d 486, 488, citing State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220.

Despite Boston, Stowers argues that Dr. Tener should not have testified as an expert about the behavior of child sexual abuse victims because there is no child sexual abuse syndrome officially recognized by the psychiatric profession and therefore her testimony lacked a scientific basis. Dr. Tener’s testimony, however, qualifies under Evid.R. 702(B) based upon her “specialized knowledge, * * * experience, training, [and] education regarding the subject matter * * According to Evid.R. 702(C), her testimony must be based on “reliable * * * specialized information” to be admitted, but because her testimony did not involve scientific or technical testing or procedures, the further requirements of Evid.R. 702(C)(1) to (3) are not at issue, notwithstanding Stowers’s argument to the contrary.

“[A] witness qualified as an expert by knowledge, skill, experience, training or education may have her testimony presented in the form of an opinion or otherwise and it need not be just scientific or technical knowledge: The rule includes more. The phrase ‘other specialized knowledge’ is found in the rule and, accordingly, if a person has information which has been acquired by experience, training or education which would assist the trier of fact in understanding the evidence or a fact in issue and the information is beyond common experience, such person may testify. * * * [I]n child abuse cases, experts, properly qualified, might include a priest, a social worker or a teacher, any of whom might have specialized knowledge.’’ (Emphasis added.) Boston at 118-119, 545 N.E.2d at 1231.¹

Through her psychological training and professional experience, Dr. Tener gained specialized knowledge that the average person lacks about behavioral characteristics of child abuse victims. “Most jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse. Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused.” Boston at 128, 545 N.E.2d at 1239.

Stowers next argues that testimony by Dr. Tener linking the behavior of the Stowers children with behavior of other sexually abused children implied that she believed the children’s testimony and her testimony thus served to bolster the children’s credibility in violation of the Boston holding. This argument is similar to the one accepted by the court of appeals in one of the cases cited in conflict, State v. Givens (Nov. 9, 1992), Warren App. No. CA92-02-015, unreported, 1992 WL 329453.² Both Givens and Stowers, however, misinterpret the Boston syllabus. The argument they advance fails to distinguish between expert testimony that a child witness is telling the truth and evidence which bolsters a child’s credibility insofar as it supports the prosecution’s efforts to prove that a child has been abused.

Boston’s syllabus excludes expert testimony offering an opinion as to the truth of a child’s statements (e.g., the child does or does not appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular person). It does not proscribe testimony which is additional support for the truth of the facts testified to by the child, or which assists the fact finder in assessing the child’s veracity.

Therefore, Dr. Tener’s testimony did not violate Boston, though it included an explanation that behaviors like recantation of accusations and delayed disclosure of incidents of sexual abuse are seen in children that have been sexually abused. She testified that even though the children changed their stories, her assessment that they had been abused did not change. Such testimony is permitted to counterbalance the trier of fact’s natural tendency to assess recantation and delayed disclosure as weighing against the believability and truthfulness of the witness. This testimony “does not usurp the role of the jury, but rather gives information to a jury which helps it make an educated determination.” Gersin at 494, 668 N.E.2d at 488.

Stowers further argues that even if Boston and the Rules of Evidence generally allow expert testimony about the behavior of sexually abused children, the interviews were so suggestive that they contaminated the children’s later statements, and that Dr. Tener’s testimony was based on belief in the children’s tainted statements and therefore her testimony should have been excluded. This issue is beyond the scope of the certified question. Nevertheless, our discussion has answered Stowers’s argument by clarifying that the basis of Dr. Tener’s testimony was not her belief in the children’s statements but rather conclusions drawn from her observations of the children’s behavior.

Thus, the trial court did not abuse its discretion by admitting Dr. Tener’s testimony as to the consistency of the Stowers children’s behavior with general behavioral characteristics observed in sexually abused children. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., F.E. Sweeney and Lundberg Stratton, JJ., concur. Douglas, Resnick and Pfeifer, JJ., dissent.

Footnotes

1

. Evid.R. 702 has been amended since Boston was decided, but the amendment “reflect[s] the Ohio Supreme Court’s interpretation of the rule’s pre-amendment language” and “no substantive change from prior law is intended.” Staff. Note (July 1, 1994 Amendment). Also, Evid.R. 102 provides that the Rules of Evidence “shall be construed to state the principles of the common law of Ohio unless the rule clearly indicates that a change is intended.”

2

. In State v. Yarber (1995), 102 Ohio App.3d 185, 656 N.E.2d 1322, the other case cited as in conflict, the expert witness “never testified or inferred [sic] that [the alleged vietimfs behavior was consistent with victims of sexual abuse.” Id. Thus, its holding is unrelated to the issue in this case.