Rodriquez v. State

• Decision Date: 07 August 1987
• Docket Number: No. A-228,A-228
• Citation: 741 P.2d 1200
• Parties: Carlos RODRIQUEZ, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1200

741 P.2d 1200

Carlos RODRIQUEZ, Appellant, v. STATE of Alaska, Appellee.

No. A-228.

Court of Appeals of Alaska.

Aug. 7, 1987.

Sen K. Tan and Michael L. Wolverton, Asst. Public Defenders, and Dana Fabe, Public Defender, Anchorage, for appellant.

Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Ronald W. Lorenson, Acting Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Carlos Rodriquez was convicted of twenty-five offenses, primarily for acts involving lewd and lascivious acts towards children, former AS 11.15.134, and contributing to the delinquency of a minor, former AS 11.40.130. Most of the counts arose from Rodriquez's either participating or attempting to participate in sexual acts with juvenile males. Twelve complainants testified at trial on a total of twenty-eight counts. Most of the complainants described a pattern in which Rodriquez would invite them to his house, offer them drugs, show them pornographic materials, and then attempt sexual acts with them. The testimony of one complainant provides a typical example.

According to T.J.P., he was thirteen when he met Rodriquez. He had a troubled family background and was already using illegal drugs. When T.J.P. went to Rodriquez's house, Rodriquez gave T.J.P. drugs and told him that he was attractive. Rodriquez also offered to "fix" T.J.P. up with a woman. During one visit, T.J.P. and Rodriquez went down to Rodriquez's basement where he showed T.J.P. a pornographic film. Rodriquez asked T.J.P. if the movie had given him an erection. When T.J.P. said that it had, Rodriquez asked to see it. Rodriquez then opened T.J.P.'s pants and performed fellatio on him. Next, Rodriquez showed T.J.P. a sauna in which there were pornographic materials. Rodriquez and T.J.P. removed their clothing to take a sauna. T.J.P. initially covered himself with a towel, but Rodriquez removed it. Rodriquez then performed fellatio on T.J.P. again. After initially resisting, T.J.P. complied with Rodriquez's request that T.J.P. perform fellatio on him. Finally, against T.J.P.'s resistance, Rodriquez held T.J.P.'s arms and sodomized him.

Following Rodriquez's conviction on twenty-five counts, Superior Court Judge Ralph E. Moody imposed a composite sentence of 133 years with fifty years suspended leaving eighty-three years to serve. Ridriquez now appeals his conviction and sentence, raising several issues.

EXPERT TESTIMONY

At trial, the state presented the testimony of John B. Rabun, Jr., who was offered as an expert on sexually-exploited children. At trial, Rodriquez objected to Rabun's testimony on the ground that no expert testimony was needed because the matters about which Rabun was going to testify were within the common knowledge of the jury. He also contended that the testimony was not relevant. On appeal, Rodriquez raises two objections to the admission of Rabun's testimony. First, he claims that Rabun's knowledge and methods are not generally accepted within the scientific community, and are therefore inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Second, Rodriquez contends that Rabun's testimony was improper testimony by one witness about the credibility of another witness.

Admissibility of expert testimony is governed by Alaska Evidence Rule 702, which provides in pertinent part:

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 decision of whether to allow a witness to testify as an expert is committed to the sound discretion of the trial court. Such decisions are reviewable only for an abuse of discretion. Handley v. State, 615 P.2d 627, 630 (Alaska 1980). In Handley, the supreme court found that it was an abuse of discretion to refuse to allow a psychologist to testify that in his opinion Handley had been in an alcoholic blackout and was unaware of what he was doing when he shot two people. Handley's proposed expert, Dr. John Baertschy, had considerable experience in treating cases of alcohol abuse, and had observed, first-hand, cases of intoxicated people whom he believed were suffering from alcoholic blackouts. Further, Dr. Baertschy had read professional journals relating to the phenomenon of alcoholic blackout. Id. at 629-31. In Handley, the state argued that the alcoholic blackout phenomenon was a novel theory which had not gained general acceptance among psychologists and psychiatrists. In reviewing this objection, the supreme court stated that this contention went to the weight, rather than the admissibility of the evidence. Id. at 630 n. 9.

The real question in admitting expert testimony is whether that testimony will assist the jury in reaching a just verdict. Many times the jury can be aided by background information which might tend to explain certain behavior. In Handley, the court concluded that it was an abuse of discretion to refuse to allow Handley to present evidence of Dr. Baertschy's observations of people whom Dr. Baertschy believed were in an alcoholic blackout, and his testimony indicating that the facts of Handley's case were consistent with an alcoholic blackout. Id. at 631. The court seemed to be willing to allow the testimony concerning alcoholic blackouts even though the theory had not necessarily gained general acceptance among psychologists and psychiatrists.

Rodriquez relies on Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923), where the court held that expert testimony is admissible only if the deductive techniques are shown to have gained general acceptance in the relevant scientific field. A classic example of an application of the Frye test is found in Pulakis v. State, 476 P.2d 474 (Alaska 1970). In Pulakis, the supreme court applied the Frye test to the admissibility of polygraph examinations. The court concluded that the accuracy of the polygraph examination had not gained general acceptance in the relevant scientific community. Id. at 478-79. In Colgan v. State, 711 P.2d 533 (Alaska App.1985), we commented on the problem presented when a witness testifies that another witness is telling the truth. In that case, a family therapist who was counseling three alleged victims of sexual abuse was allowed to testify that in her opinion, the witnesses had been sexually abused. Id. at 533-34. In Colgan, we concluded that Colgan's arguments appeared to have considerable merit and expressed serious doubts about the wisdom of admitting expert testimony of this type. However, Colgan had not objected to the admissibility of this testimony at trial, and we found that admission of this testimony did not amount to plain error. Id. at 534.

It appears to us that there is a significant distinction between presenting a witness, such as a polygraph operator, to testify that a person is telling the truth, and presenting a witness who can state that the behavior of a witness falls within a common pattern. A good example of this latter kind of testimony is presented in State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983). In Middleton, the court allowed testimony concerning the usual behavior of victims of child sexual abuse. The court stated:

If a complaining witness in a burglary trial, after making the initial report, denied several times before testifying at trial that the crime had happened, the jury would have good reason to doubt seriously her credibility at any time. However, in this instance we are concerned with a child who states she has been the victim of sexual abuse by a member of her family. The experts testified that in this situation the young victim often feels guilty about testifying against someone she loves and wonders if she is is doing the right thing in so testifying. It would be useful to the jury to know that not just this victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint, and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness' credibility.

Id. 657 P.2d at 1219-20 (footnote omitted). This result appears to be consistent with other cases. See United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986) (testimony about child victim's credibility improper, but expert testimony about patterns in child sexual abuse victims' stories admissible); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 457-460, 681 P.2d 291, 298-301 (Cal.1984) (evidence of rape trauma syndrome is admissible to disabuse the jury of widely held misconceptions about rape and rape victims, but not admissible to prove that a rape actually occurred in an individual case); State v. Myers, 359 N.W.2d 604, 609 (Minn.1984) (not abuse of discretion to admit expert testimony concerning the traits and characteristics typically found in sexually-abused children).

Testimony by an expert witness that purports to establish by scientific principles that another witness is telling the truth treads on dangerous legal ground. On the other hand, testimony by an expert witness which provides useful background information to aid the jury in evaluating the testimony of another witness is admissible. We conclude that the testimony of John Rabun was this latter type of testimony.

Rabun is a social worker with a master's degree. He has worked with children who have been exploited through child pornography or prostitution and child sex rings. For three years he has managed a Kentucky-based group of law enforcement officers and social workers called the Exploited and Missing Child Task Force. Rabun has worked with street children for about ten years. His knowledge of the behavior...