State v. Stowers

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 260

.]




            THE STATE OF OHIO, APPELLEE, v. STOWERS, APPELLANT.
                      [Cite as State v. Stowers, 

1998-Ohio-632

.]
Criminal Law—Sex offenses—Evidence—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.
(No. 96-1871—Submitted October 22, 1997 at the Muskingum County Session—
                               Decided March 18, 1998.)
  CERTIFIED by the Court of Appeals for Tuscarawas County, No. 94AP090066.
                                  __________________
        {¶ 1} Appellant, James Stowers, Jr., was convicted of four counts of rape.
The alleged victims were his children, all four of whom testified at his trial. Three
of the four children changed their stories between their initial questioning and the
time of trial. At trial, the two who had originally claimed their father abused them
testified that he did not, and the one who originally denied being abused by her
father testified that the abuse occurred. The testimony of the fourth child was
inconclusive.
        {¶ 2} The court allowed a clinical psychologist, Dr. Robin Tener, to testify
that the behavior of the children who changed their stories was consistent with the
behavior of other children who had been sexually abused.
        {¶ 3} The court of appeals affirmed Stowers’s conviction, but certified a
conflict with the decisions of the Court of Appeals for the Twelfth District in State
v. Givens (Nov. 9, 1992), Warren App. No. CA92-02-015, unreported, 

1992 WL 329453

, and State v. Yarber (1995), 

102 Ohio App.3d 185

, 

656 N.E.2d 1322

, on
the following issue:
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        “Whether a trial court errs in permitting an expert witness to testify the
behavior of an alleged child-victim of sexual abuse is consistent with the behavior
of children who have been sexually abused, because this impermissibly conveys to
the jury the expert’s belief the child was actually abused.”
        {¶ 4} The cause is now before this court upon our determination that a
conflict exists.
                               __________________
        Robert R. Stephenson II, Tuscarawas County Assistant Prosecuting
Attorney, for appellee.
        Gerald A. Latanich, Joint County Public Defender’s Office, for appellant.
        Mark E. Mulligan, Ottawa County Prosecuting Attorney, urging affirmance
for amicus curiae, Ohio Prosecuting Attorneys Association.
        Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor,
Simon B. Karas, Deputy Chief Counsel, and Alice L. Robinson-Bond, Assistant
Attorney General, urging affirmance for amicus curiae, Ohio Attorney General.
        Gold, Rotatori, Schwartz Co., L.P.A., and John S. Pyle, urging reversal for
amicus curiae, Ohio Association of Criminal Defense Lawyers.
                               __________________
        COOK, J.
        {¶ 5} 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.
        {¶ 6} 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




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                                January Term, 1998




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

.
       {¶ 7} 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.
       {¶ 8} “[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




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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
         {¶ 9} 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

.
         {¶ 10} 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.
         {¶ 11} 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


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 victim]’s behavior was
consistent with victims of sexual abuse.” 

Id.

 Thus, its holding is unrelated to the issue in this case.




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                                  January Term, 1998




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.
       {¶ 12} 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

.
       {¶ 13} 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.
       {¶ 14} 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.




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       MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS, RESNICK and PFEIFER, JJ., dissent.
                               __________________
       ALICE ROBIE RESNICK, J., dissenting.
       {¶ 15} I respectfully dissent from the majority’s holding that “[a]n 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.” This holding is not only imprecise, but is also
incorrect. The majority, when addressing Evid.R. 702, contends that the “further
requirements of Evid.R. 702(C)(1) to (3) are not at issue” since Dr. Tener’s
testimony did not involve scientific or technical testing or procedures. What is the
field of psychology or psychiatry if it is not scientific? Dr. Tener, while making
her observations and comparisons of Mary Sue Stowers with other sexually abused
children, was most certainly engaged in a technical and scientific procedure. But
regardless of that fact, such testimony should be inadmissible until it is
scientifically established that there are proven and accepted behavioral
characteristics of a standard child-sexual-abuse victim. At the present time there is
not a sufficient database to scientifically support such testimony.
       {¶ 16} Not all experts in the field of child sexual abuse agree on standard
characteristic indicators of sexual abuse victims. In fact, some experts have
specifically refuted the claim that there are reliable “indicators” of child sexual
abuse. As Richard A. Gardner, M.D., Clinical Professor of Child Psychiatry at
Columbia University, states:
       “The fact that DSM-III-R [Diagnostic and Statistical Manual of the
American Psychiatric Association] does not recognize [the sex abuse] syndrome
and the fact that it is the only syndrome in the history of psychiatry that includes
all psychological symptoms and behavioral manifestations—both normal and
abnormal—does not deter these evaluators from resorting to this meaningless




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                                 January Term, 1998




statement.” (Emphasis sic.) Gardner, True and False Accusations of Child Sex
Abuse (1992) 294.
        {¶ 17} Because of the multitude of symptoms and indicators, great caution
should be used when allowing expert testimony, since jurors look to scientific
experts to provide reliable evidence of guilt or innocence. In this case, Dr. Tener,
who had extensive experience with child-sex-abuse victims, specifically testified:
        “And with Mary Sue I felt that she had much anger, much anxiety, much
feelings of guilt[.] * * *
        “* * * [M]any children show guilty feelings, a sense of responsibility for
what took place. Mary Sue showed all of the above and I’ve testified repeatedly
about how guilty she felt and wanted me to know that it was not her fault, that she
didn’t know what was going on till she was older, etcetera. These kinds of reactions
are associated with events that you find that people label as wrong, sexual abuse
being one of those kind[s] of events. And I found Mary Sue’s reactions to be quite
consistent with other children who are in the same kind of predicament of having
made a statement about sexual abuse and realizing the ramifications of those
statements.”
        {¶ 18} While it might be expedient to permit experts to solve sexual abuse
cases, the most reliable evidence still comes from the child victim. Judges and
jurors are the best fact-finders as to the credibility of witnesses in determining guilt
or innocence. Until a sufficient database can be established to support so-called
child-sexual-abuse indicators, expert testimony concerning standard indicators
should be inadmissible.      Rather than assisting the fact-finders, such expert
testimony can be misleading, especially since the scientific community is not in
agreement as to what standard symptoms a victim of sexual abuse exhibits.
        {¶ 19} Dr. Tener testified that anger, anxiety, feelings of guilt, and a sense
of responsibility for what took place are standard indicators of child sexual abuse.
However, it should be noted that these are not the only such indicators. Experts




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have cited numerous other indicators or symptoms of child sexual abuse. This
diversity of indicators underscores the state of flux that exists in profiling the so-
called standard indicators of child sexual abuse.
       {¶ 20} In a manual for therapists the following common symptoms of child-
sexual-abuse victims are listed:
•   “Sudden behavioral changes—shyness, regression, withdrawal, aggression,
hyperactivity, secretiveness, clinging behavior.
•   “Fears — of the dark, of being alone, of certain people.
•   “Sleep difficulties — inability to sleep, nightmares, night terrors.
•   “Eating problems — change in eating patterns, loss of appetite.
•   “Sexual acting out — touching others, excessive masturbating, inserting objects
into genitals/rectum, drawing nude figures/explicit genitals, re-enacting sexual acts
with toys.
•   “Soiling/bedwetting (encopresis/enuresis)
•   “Mature sexual language/preoccupation with sexual language.
•   “Age-inappropriate behavior — thumb-sucking in older children, sexual
precocity in younger children.
•   “Avoidance of specific activities — of sports, showers, school attendance.
•   “Somatic problems — headaches, digestive problems.”
Mayer, Child Sexual Abuse and the Courts (1990) 65.
       {¶ 21} Additionally, the manual goes on to list the emotional reactions of
child-sexual-abuse victims:
       embarrassment, ambivalence, distrust, fear, guilt, confusion, depression,
hurt, avoidance, anger, and powerlessness. Id. at 66-67.
       {¶ 22} From the foregoing, it can readily be seen that sexually abused
children exhibit numerous and diverse emotions and reactions. These are the same
emotions and reactions that many nonabused children exhibit.




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       {¶ 23} The symptoms or indicators of child sexual abuse to which Dr. Tener
testified, anger, anxiety, and feelings of guilt, could just as likely arise from other
causes and are not unique to sexual-abuse victims. The judicial system should not
rush to admit such testimony. Rather, we should admit expert testimony only when
it has been “ ‘sufficiently developed, as a matter of commonly accepted scientific
knowledge, to warrant testimony under the guise of expertise.’ ” State v. Koss
(1990), 

49 Ohio St.3d 213, 215

, 

551 N.E.2d 970, 972

.
       {¶ 24} For the foregoing reasons, I would reverse the judgment of the court
of appeals.
       DOUGLAS and PFEIFER, JJ., concur in the foregoing dissenting opinion.
                               __________________




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