NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT D. REECE, )
) Court of Appeals No. A-4680
Appellant, ) Trial Court No. 3KN-S91-
1635CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1372 - October 7, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Carol A. Brenckle, Kenai,
G. Blair McCune, Assistant Public Defender,
and John B. Salemi, Public Defender,
Anchorage, for Appellant. John A. Scukanec,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Robert D. Reece was convicted by a jury of sexual abuse
of a minor in the first degree. He appeals, contending that the
trial court erred in admitting lay opinion testimony concerning
certain characteristics of child sexual abuse victims. Reece
also complains that the trial court prejudiced the jury by
displaying bias in favor of the victim and that the court erred
in excluding exculpatory evidence and in establishing the amount
of restitution to be paid by Reece as part of his sentence. We
affirm.
Reece was convicted for sexually abusing L.E., the
eight-year-old daughter of an acquaintance of Reece, B.W. The
abuse occurred at Reece's Kenai home in July of 1991, when B.W.
left L.E. in Reece's care so that B.W. could travel to Anchorage
for medical tests. After spending several days with Reece, L.E.
telephoned her mother (who had not yet left for Anchorage) and
asked to come home, complaining that Reece had done something to
her "that wasn't right." When L.E. returned home, she told B.W.
that Reece had molested her by inserting his finger into her
vagina and performing cunnilingus on her. A medical examination
of L.E. yielded findings consistent with, but not conclusive of,
recent sexual penetration. Alaska State Trooper Michael J. Gomez
interviewed L.E., who reported at least five instances of sexual
contact by Reece that occurred during her stay with him. The
conduct described by L.E. included digital penetration,
cunnilingus, and masturbation.
Gomez later interviewed Reece. Reece denied sexually
abusing L.E. and suggested that L.E.'s report might have been
prompted by her inadvertent exposure to an adult videotape that
he had at his house during her visit. According to Reece, the
tape portrayed explicit sexual acts similar to those described by
L.E. Reece later gave Gomez a videotape, claiming that it was a
copy of the tape to which L.E. had been exposed.
Reece was tried before a jury presided over by Superior
Court Judge Jonathan H. Link. At trial, L.E.'s description of
Reece's sexual abuse differed somewhat from her earlier accounts.
L.E. did not recall five instances of sexual contact; although
she testified that Reece had penetrated her with his finger, she
was equivocal as to whether he had engaged in cunnilingus. After
L.E. testified, the state called Trooper Gomez to the stand to
describe his interviews with L.E. and Reece. Over Reece's
objection, the court allowed Gomez to testify about the
phenomenon of "minimization." Based on his experience
investigating sexual abuse cases, Gomez testified that children
victimized by sexual abuse "always minimize the extent of what
really took place whenever they're being interviewed. . . .
[T]hey feel so low, their esteem is so down, that they're ashamed
that this happened to them, so they minimize whatever happens."
According to Gomez, "it's not unusual at all for them to play
down what really happened. A lot of times they don't even want
to talk about it." Gomez went on to state his opinion that
L.E.'s conduct was consistent with what he had seen before in his
investigations. In arguing its case to the jury, the prosecution
attributed the inconsistencies between L.E.'s trial testimony and
her more detailed prior statements to minimization.
On appeal, Reece argues that Judge Link erred in
allowing Gomez to testify about minimization and to state his
opinion that L.E.'s conduct was consistent with the conduct of
other sexual abuse victims. Reece maintains that this testimony
amounted to impermissible "vouching" for L.E.'s credibility.
Our previous opinions have held that testimony
concerning behavioral or psychological characteristics of sexual
abuse victims is admissible only in limited circumstances. We
have found such testimony proper when it is offered for the
narrow purpose of "negat[ing] a claim or inference that the
complaining witness' behavior in a given case was inconsistent
with a truthful accusation of sexual abuse." Bostic v. State,
772 P.2d 1089, 1096 (Alaska App. 1989), rev'd on other grounds,
805 P.2d 344 (Alaska 1991). By contrast, we have ruled such
testimony inadmissible when it is used affirmatively, to
establish that an alleged victim is in fact a victim -- that a
particular individual's claim of abuse is truthful because it is
in some characteristic way "consistent" with typical reports of
abuse. "[Our] decisions do not permit testimony offered to prove
that the complaining witness is sexually abused by showing that
the complaining witness exhibits behavior similar to that
exhibited by sexually abused children." Haakenson v. State, 760
P.2d 1030, 1036 (Alaska App. 1988). See also Cox v. State, 805
P.2d 374, 377 (Alaska App. 1991); Nelson v. State, 782 P.2d 290,
298 (Alaska App. 1989); Anderson v. State, 749 P.2d 369, 373
(Alaska App. 1988).
In the present case, the form of Gomez' testimony
concerning "minimization" was arguably improper. Gomez'
testimony was not confined to the limited issue of whether L.E.'s
inconsistencies and minimization were incompatible with a
truthful claim of abuse. Instead, the court expressly ruled that
Gomez could state his affirmative view that L.E.'s conduct
conformed to typical conduct for a sexual abuse victim. In
keeping with the scope of the court's ruling, Gomez, after
describing the phenomenon of minimization, did in fact state his
opinion that L.E.'s conduct was consistent with what he had seen
before in his investigations.
The danger of this testimony is its tendency to
suggest, not merely that minimization is common among sexual
abuse victims -- or, in Gomez' words, that sexual abuse victims
"always minimize the extent of what really took place" -- but
that it is unique to sexual abuse victims. If interpreted in
this manner, Gomez' testimony would have encouraged the jury to
reason that, since minimization is characteristic behavior for a
sexual abuse victim, and since L.E. engaged in minimization, L.E.
must have been the victim of sexual abuse, and her claim of
sexual abuse was therefore probably truthful. To the extent that
Gomez' testimony portrayed L.E.'s minimization of events as
affirmative evidence of her truthfulness in this way, it was
problematic.1
Indeed, Judge Link himself recognized this problem. At
the conclusion of Reece's trial, when the jury began its
deliberations, Judge Link evidently undertook a review of recent
case law and reassessed his earlier decision allowing Gomez to
testify about minimization. The judge ultimately concluded that
Gomez should not have been permitted to state his opinion that
L.E.'s minimization was consistent with behavior typically
encountered in other sexual abuse victims. Nevertheless, upon
carefully considering the circumstance of Reece's case, the judge
further concluded that the error in admitting this evidence was
not substantially prejudicial and did not warrant a mistrial.
Our review of the record convinces us that Judge Link
did not abuse his discretion in determining that the prejudice to
Reece was minimal. Here, as noted by the trial court, Gomez made
it clear that his opinion was simply based on his experience in
investigating sexual abuse cases. Gomez was not presented as an
expert in the identification of sexual abuse victims and did not
pretend to any such expertise. Immediately after Gomez completed
his testimony on direct examination, the court gave the jury an
appropriate cautionary instruction. Moreover, although Gomez
testified that sexual abuse victims commonly engaged in
minimization, he did not characterize minimization as a unique
characteristic that made it possible to distinguish between true
and false claims of abuse. To the contrary, Gomez candidly
acknowledged, "I don't think there is one expert in this world
that could tell whether or not a young child is telling the truth
or not."
The danger of prejudice was further reduced by the
manner in which the state argued Gomez' testimony to the jury.
At no point did the state urge the jury to find that L.E.'s
minimization was affirmative proof of her status as a victim or
of the truthfulness of her claim. Instead, the state relied on
the evidence of minimization for the more limited, and proper,
purpose of rebutting Reece's claim that L.E.'s inconsistent and
incomplete testimony was indicative of fabrication.2 To the
extent Gomez' testimony concerning L.E.'s minimization was
improper, we conclude that there is no reasonable likelihood that
its admission had any appreciable effect on the jury's verdict.
Accordingly, we find no reversible error. Love v. State, 457
P.2d 622, 631 (Alaska 1969).3
Reece's remaining issues require only brief mention.
Reece complains that the trial court prejudiced the jury by
displaying bias in favor of the victim and by commenting
negatively on the case presented by the defense. However, Reece
failed to object or otherwise call his complaints to the
attention of the trial court. Our review of the record convinces
us that there is no plain error.
Reece also complains that the trial court erred in
excluding evidence of his offer to take a polygraph examination
and in refusing to allow admission of the videotape he gave to
Trooper Gomez. The trial court did not err in finding Reece's
offer to take the polygraph to be inadmissible. Haakenson, 760
P.2d at 1034-35; Leonard v. State, 655 P.2d 766, 771 (Alaska App.
1982). Nor did the court err in excluding the videotape on
foundational grounds.4
Finally, Reece challenges the trial court's restitution
award. Our review of the record, however, convinces us that the
court did not abuse its discretion in requiring Reece to
reimburse B.W. for partial moving expenses. The record supports
the court's conclusion that B.W.'s decision to move was prompted
by the sexual abuse for which Reece was convicted and that the
location B.W. chose for a new residence was reasonable. See,
e.g., State v. Brady, 819 P.2d 1033, 1034 (Ariz. App. 1991);
Strough v. State, 501 So.2d 488, 490-91 (Ala. Crim. App. 1986).
We are further convinced that the trial court did not abuse its
discretion in ordering Reece to compensate L.E. for future costs
of counseling. Although Lawrence v. State, 764 P.2d 318, 322
(Alaska App. 1988), disapproved an award for future counseling
expenses that was made in the absence of evidence firmly
establishing the need for and amount of such expenses, here,
L.E.'s future counseling needs and the approximate cost thereof
were adequately established in the sentencing record.
The judgment is AFFIRMED.
_______________________________
1. As we said in Anderson, 749 P.2d at 373:
[W]e have never authorized expert
testimony seeking to establish that a person
is a member of a particular class or group,
i.e., battered women or sexually abused
children, by showing that they exhibit
behavioral characteristics common to that
group. . . . [B]efore such testimony is
admitted, the proponent should establish, in
a hearing out of the presence of the jury,
that the probative value of the testimony
outweighs its possible prejudicial effect.
See, e.g., Alaska Evidence Rule 403. The
supreme court has suggested that in cases
such as this, compliance with A.R.E. 403
should be virtually the equivalent of
compliance with the Frye rule.
2. The prosecutor argued, in relevant part:
[L.E.'s] testimony on the stand, as you
recall, was somewhat guarded because of what
Trooper -- the Troopers indicated that the .
. . reluctance of a child, sexual abuse
victims, to testify, to bring this out, the
minimization, the guilt that they feel.
Trooper Gomez explained, during the course of
his experience, his years of investigation in
matters such as this, that's not something
that's unusual. That's something, rather,
that is probably normal, where a child as
young as [L.E.] to have to do; to face up to
the adults, including her relatives,
including a doctor, including even a social
worker and a -- an Alaska State Trooper, and
relate to them what had occurred.
3. Reece has separately argued that, because Gomez was not
formally qualified as an expert under A.R.E. 702, Gomez should
not have been allowed to state any opinion whatsoever concerning
L.E.'s minimization. However, to the extent Gomez' testimony was
used for the limited purpose of rebutting the negative inference
of fabrication relied on by Reece, Gomez' experience with sexual
abuse investigations was plainly sufficient to allow him to
testify as a lay witness, under A.R.E. 701, that L.E.'s
minimization was not inconsistent with a truthful claim of abuse.
Cf. Shepard v. State, 847 P.2d 75, 81 (Alaska App. 1993)
("psychological evidence whose purpose is merely to establish
that certain testimony is not necessarily untruthful . . . [is
admissible] because the more modest aim of psychological
testimony in such cases is to assist the jury in reaching its own
interpretation of the evidence").
We note that, in addition to allowing Gomez to express
his opinion on minimization, the trial court also permitted him
to describe the process of "grooming" by sexual abusers of their
victims. Gomez briefly described the "grooming" process in his
testimony but expressed no opinion as to whether any conduct by
Reece amounted to grooming. On appeal, Reece has not separately
argued that this aspect of Gomez' testimony amounted to
reversible error. Given the brevity of Gomez' testimony on the
issue and its common sense nature, we find no plain error.
4. In any event, since L.E. admitted viewing portions of
an adult videotape at Reece's home that depicted sexual conduct
similar to the conduct she had reported, exclusion of the
videotape resulted in no apparent prejudice to Reece.
