State v. Braham

• Decision Date: 14 December 1992
• Docket Number: No. 27134-2-I,27134-2-I
• Citation: 841 P.2d 785,67 Wn.App. 930
• Parties: STATE of Washington, Respondent, v. Howard Craig BRAHAM, Appellant.
• Court: Washington Court of Appeals

Page 930

67 Wn.App. 930

841 P.2d 785

STATE of Washington, Respondent, v. Howard Craig BRAHAM, Appellant.

No. 27134-2-I.

Court of Appeals of Washington,

Division 1.

Dec. 14, 1992.

As Amended Jan. 4, 1993.

Dawn Monroe, Washington Appellate Defender, Seattle, for appellant.

Norm Maleng, Pros. Atty., and Sally Olsen, Deputy Pros. Atty., Seattle, for respondent.

PEKELIS, Judge.

Howard Braham appeals from a conviction on one count of first degree child molestation. He argues that the trial court improperly admitted expert testimony about the "grooming process" (techniques that child molesters use to establish a relationship with the victim). We reverse.

I

For approximately 3 weeks in 1989, 3-year old A.H. and her mother, Patricia H., lived with Patricia's sister, Terry, and Terry's husband, Howard Braham.

One evening, when Patricia tried to bring A.H. upstairs to bed, A.H. resisted, saying her "coleta" hurt. ¹ When Patricia asked why, A.H. told her "Uncle Craigie touched me." ² Patricia asked where and A.H. pointed to her vagina. This incident ostensibly had occurred the night before while Braham was saying goodnight to his daughter Meagan, who shared a bedroom with A.H.

Patricia reported this incident to Child Protective Services. In two interviews, A.H. told social workers that Braham had touched her vagina. In response to questioning by Dr. Mary Gibbons at Harborview Medical Center, A.H. indicated that no one had touched her and then said "but Uncle Craigie loves me. He doesn't have to be under arrest. He doesn't do anything." Dr. Gibbons found that A.H. had an "essentially normal genital and anal exam aside from some area where the blood vessels looked a bit unusual between the outside of the genitals and the hymen." Dr. Gibbons concluded that the irregularity could have been caused by sexual abuse but also could have arisen from other causes, such as infection.

A.H. was deemed competent to testify at trial. In addition to Patricia H., the two social workers, and Dr. Gibbons, the State called Lucy Berliner, Director of Research for the Harborview Sexual Assault Center and a clinical assistant professor at the University of Washington, to present expert testimony regarding the recantation of allegations of abuse made by children and the "grooming process" whereby child molesters establish a relationship with the intended victim.

When, during pretrial motions, the prosecutor indicated she would be calling Ms. Berliner to testify as an expert regarding grooming, Braham's attorney objected as follows:

[C]ertainly as to this grooming testimony, there is no indication here that that would be proper or that would be relevant. I think the prosecuting attorney is simply seeking to allow Ms. Berliner--and I have the greatest respect for Ms. Berliner, but she does have a tendency to run on and preach a bit when she is on the stand. And I think that in testifying as to what she believes to be the common grooming process, the jury could be seriously misled and certainly given false impressions as to what in fact the facts were, if any, in this particular case that would support the State's allegations. Therefore I would strenuously object to that type of testimony.

The judge inquired about how the grooming testimony would "be connected with the other evidence which [the State] intend[s] to adduce." The prosecutor argued that the grooming testimony would "be highly relevant" because "the defendant and the victim had a very close relationship":

He was ... almost a father figure to her.... They were very close, and that is one of the components of grooming: that the perpetrator has established a very close bond, especially with a young child, and that facilitates the ability to commit abuse in this case.

The judge granted the motion for leave to allow Ms. Berliner to testify about the grooming process. The prosecutor advised the court that the State would elicit from Ms. Berliner only "general information" about grooming because Berliner had no particular information about the victim.

During the opening statement, the prosecutor told the jury that "Lucy Berliner will ... talk to you about grooming. She will explain that is a process whereby the offender, the defendant in this case, establishes a relationship with their victim in order to groom them, prepare them to make it easier to facilitate the crime."

Ms. Berliner testified about grooming as follows:

[T]hat ... clinical term ... has been applied to what we would call a process of victimization. [W]hat is basically meant by that is that in most cases where sexual abuse happens, it isn't something that just happens suddenly out of the blue. Generally there is a period of time where the person who intends to abuse the child gradually gets the child to feel more comfortable and may gradually sexualize the relationship or form a bond with the child so that the child will either not understand that what's happening to them is wrong or the child will not tell anyone about it after it happens.

Ms. Berliner described her recent study on the subject ³ and then testified, based on the information derived from the study, about the "dynamics" of the victim-offender relationship prior to the initiation of sexual abuse. ⁴ Ms. Berliner also testified about how victims were "targeted or selected." According to the study, offenders would seek a child who "looked lonely or needy or their families were disrupted because they felt those children would be more needing a relationship with somebody who would treat them as if they were special or who would give them attention."

During earlier direct examination of Patricia H., the prosecutor elicited testimony about A.H.'s close relationship with Braham. On cross examination the prosecutor again asked Braham about his close relationship with A.H., seeking to emphasize Braham's role as a "father-figure."

In her closing statement the prosecutor revisited Ms. Berliner's testimony as follows:

Lucy Berliner told you that it is typical in grooming, the offender is going to have a relationship of some kind with the victim. In this case it was almost a father-daughter relationship.... [A.H.] likes Uncle Craigie. He is her daddy at a time when she doesn't have her own dad there. Her mother has had another boyfriend. Her father has been in and out of her life off and on. It is no wonder that Uncle Craigie is a very important figure to her.

Lucy Berliner told you that this is something, this type of relationship an offender is going to look for. [A.H.] fits the profile: Young, articulate, engaging young girl, needy, wanting a father figure, liking the offender, the defendant, and the defendant realizes all this and in play he takes her places, takes her to babysitting, treats her as his daughter.

[T]he elements or characteristics of ... grooming that Ms. Berliner explained to you this morning [are here]. ... [W]hen you consider all the factors of the case, they are substantial circumstantial evidence supporting the fact that in fact the defendant did sexually touch her on her vagina in that bedroom....

The jury found Braham guilty as charged. Braham was sentenced to a 24-month term of confinement and an additional year of community placement. Braham appeals.

II

Braham contends that the expert testimony on "grooming" was erroneously admitted because it is, in fact, a type of "profile" testimony. As such, Braham argues, it carries an unfairly prejudicial opinion on defendant's guilt and hence invades the province of the jury.

As a threshold matter, we must decide whether Braham has properly preserved this argument for appeal. The State insists that Braham failed to object to Berliner's testimony on this ground below. We disagree. The propriety of an evidence ruling will be examined on appeal if thespecific basis for the objection is "apparent from the context." State v. Pittman, 54 Wash.App. 58, 66, 772 P.2d 516 (1989); 5 Karl B. Tegland, Washington Practice: Evidence § 10, at 33-34 (1989).

Here, the specific objection argued on appeal can be inferred from the context of the objection made below. At trial, Braham's counsel objected to the relevance of Ms. Berliner's testimony and specifically declared that if Berliner's testimony was admitted, "the jury could be seriously misled and ... given false impressions." Braham argues on appeal that the probative value of expert "profile" evidence is outweighed by the testimony's unfairly prejudicial impact on the jury.

Although trial counsel did not cite a particular rule of evidence as the basis for his objection, such precision is not necessarily required. See State v. Guloy, 104 Wash.2d 412, 422-23, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). Objecting that "the jury could be seriously misled" invokes Rule 403, which provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." (Emphasis added.) ER 403. Moreover, Washington's general prohibition on expert "profile" testimony is premised precisely on this element of unfair prejudice and the ensuing false impression the jury might derive about the value of the expert's ostensible inference. See State v. Maule, 35 Wash.App. 287, 293, 667 P.2d 96 (1983).

We conclude, therefore, that trial counsel's objection, although not ideal, was specific enough to allow Braham the opportunity for appellate review. The reason advanced for excluding Berliner's testimony--lack of probative value as compared to potential prejudicial effect--is apparent from the context and sufficed to apprise the trial judge of the nature of Braham's objection.

III

As for the substance of the evidence issue, Braham contends the "grooming" testimony permitted here is a species of "profile" testimony which, he claims, is inadmissible in a case such as this. Because some of the components of grooming...