State v. Doan
| Decision Date | 02 February 1993 |
| Docket Number | No. A-91-827,A-91-827 |
| Citation | 498 N.W.2d 804,1 Neb.App. 484 |
| Parties | STATE of Nebraska, Appellee, v. Chester N. DOAN, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Trial: Expert Witnesses. An expert or skilled witness will be deemed qualified if, and only if, he or she possesses special skill or knowledge respecting the subject matter involved so superior to that of people in general as to make his or her formation of a judgment a fact of probative value.
2. Trial: Expert Witnesses: Appeal and Error. A trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous.
3. Trial: Witnesses. It is totally improper for one witness to testify as to the credibility of another witness. The question of any witness' credibility is for the jury.
4. Expert Witnesses: Juries. It is not for an expert to suggest to the jury how a witness' testimony shall be weighed or evaluated.
5. Trial: Expert Witnesses. Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. The witness should not be allowed to express an opinion on an inadequate basis or in respect to facts not disclosed to the jury.
6. Trial: Sexual Assault: Expert Witnesses. In a prosecution for sexual assault of a child, an expert witness may not give testimony which directly or indirectly expresses an opinion that the child is believable, that the child is credible, or that the witness' account has been "validated."
7. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether error in the admission or exclusion of evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to the defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
8. Trial: Juries: Appeal and Error: Words and Phrases. Harmless error exists when a review of the entire record shows that the erroneous admission of the evidence did not materially influence the jury or affect a substantial right of the defendant.
9. Trial: Juries: Evidence: Appeal and Error. Erroneously admitting evidence is harmless when such evidence is cumulative and other properly admitted evidence supports the finding by the jury.
J.S. Barrett, for appellant.
Don Stenberg, Atty. Gen., and David T. Bydalek, for appellee.
Chester N. Doan was convicted by a jury of sexual assault of a child, in violation of Neb.Rev.Stat. § 28-320.01 (Reissue 1989), and sentenced to 3 years' imprisonment. This appeal raises the following four issues: (1) the standard by which a trial court determines whether a witness qualifies as an expert, in this case a counselor of a sexually abused child; (2) the admissibility of expert testimony on behavior typically seen in child sexual abuse victims; (3) the extent to which a counselor can testify to what he or she has been told by a child; and (4) whether a counselor can comment on the credibility of a child-victim by testimony that the child's claim of abuse was "validated."
The child, A.K., was 4 years old during the summer of 1990, and she resided with her parents, who both worked during the day on Tuesdays. On Tuesdays, A.K.'s care from 8 a.m. until approximately 10:45 a.m. was provided by her grandmother Claudia. Claudia would then take the child to A.K.'s great-grandmother Marie, who would care for A.K. from approximately 10:45 a.m. until 2:30 or 3 p.m., when Claudia would return for her. Doan resided with Marie as an untrained "male nurse" and errand runner, in addition to his job at a Holiday Inn in Omaha. However, during the summer of 1990, Doan was not working at the motel, as he had sustained an on-the-job injury in April.
On Tuesday, August 28, 1990, A.K. first claimed during a casual conversation with Claudia that she had been subjected to improper sexual contact by Doan. As they were preparing to go to Marie's, A.K. asked Claudia if Doan would be at her great-grandmother's apartment. Claudia answered that " 'he might be' " and asked whether A.K. enjoyed playing with Doan, to which A.K. responded, " 'Yes, but sometimes Chester pulls his pants down.' " A.K. further told Claudia that Doan had shown her " 'his front' " and that he sometimes put " 'his hand in my pants.' " Claudia called A.K.'s mother, who came immediately and talked with A.K., who reported that Doan would "pull his pants down and rumble his private parts on her back, [and] touch her private parts with his fingers."
At trial, A.K. testified that Doan had pulled down her pants, touched her "private parts" with his hands, and touched her with his private parts. A.K. testified that this had occurred three times, all at her great-grandmother's, either in Marie's bedroom or in the kitchen.
Doan's testimony at trial was that he had not ever touched the child and that he was rarely inside the apartment when the child was there, except for at lunchtime. Marie testified that she was with or watching A.K. at all times and that it was simply impossible for Doan to have ever been alone with A.K.
The State called as its witness Patricia Blau, who first talked with A.K. on January 30, 1991, 5 months after A.K.'s initial report of sexual assault. Blau had received a bachelor's degree in psychology in 1984 from Fort Hays State University in Hays, Kansas, and a master's degree in counseling from the University of Nebraska at Omaha on an unspecified date. She had worked for Systems Associates for 7 years (presumably since her graduation in 1984) and testified that she had been in school most of the time while she was working (allowing the inference that her master's degree was recently conferred). Blau's employer, Systems Associates, provided inpatient and outpatient counseling for individuals, groups, families, and married persons. With respect to her duties, Blau testified that she assesses the needs of people, devises a counseling treatment plan with the assistance of a supervising psychiatrist, and then proceeds with the process of treatment.
The balance of the evidence in the record as to Blau's qualifications is as follows:
Q. Do you subscribe to any professional journals that deal with child sexual abuse?
A. Our office does, yes.
Q. And do you keep up on the current state of the literature in the area of child sexual abuse?
A. Yes.
Q. What percentage of your time would you say you devote to child sexual abuse? In the last seven years what percentage of your time?
A. In the last seven years? In terms of child sexual abuse, probably I've had more experience with that in the last four years. My primary interest before was in suicidology, and then I expanded that out, so the last four years I've been pretty well focused on the sexual aspect of that. Probably 60--50 to 60 percent of my time and my case load deals with people that have been sexually abused, children that have been sexually abused.
....
Q. Can you estimate the number of children you have talked to that have complained of being sexually abused?
A. Probably about 35 to 40.
Blau then testified to the characteristics that are typically seen in sexually abused children as well as the difference between adults and children with respect to perception and verbal skills when responding to questions. Over objection as a conclusion without proper foundation, she confirmed the prosecutor's inquiries as to whether it is not "unusual for a child not to have reported an incident of sexual abuse by a friend immediately" and whether it is not "unusual for a child to not be visably [sic] upset when first reporting sexual abuse by a friend." Blau testified that she evaluates as to "whether or not I believe they've been abused or not." Blau testified over a hearsay objection about the history she had obtained from A.K. The trial court then granted a continuing objection to further testimony from Blau, on grounds of hearsay and insufficient foundation. After that continuing objection was granted, Blau testified further about the history from A.K. and A.K.'s physical appearance and reactions while recounting the alleged abuse, finally stating that she had received "validation" of the child's account of sexual abuse.
Doan assigns the following as error: "The Trial Court erred in overruling the defendant-appellant's objection to the expert testimony," together with a claim of excessive sentence. From this assignment, Doan argues that Blau should not have been allowed to testify, as she was not qualified, and further that his objections to her testimony on grounds of hearsay and lack of foundation should have been sustained.
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