State v. Edelman

• Decision Date: 21 April 1999
• Docket Number: No. 20576,20576
• Citation: 1999 SD 52,593 N.W.2d 419
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Melvin EDELMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 419

593 N.W.2d 419

1999 SD 52

STATE of South Dakota, Plaintiff and Appellee, v. Melvin EDELMAN, Defendant and Appellant.

No. 20576.

Supreme Court of South Dakota.

Argued Feb. 23, 1999.

Decided April 21, 1999.

Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, for plaintiff and appellant.

Joseph H. Kosel, Northern Hills Public Defender's Office, Deadwood, for defendant and appellant.

GILBERTSON, Justice.

¶1 Melvin C. Edelman (Edelman) appeals his conviction of four counts of sexual contact with a minor under the age of sixteen and fifty counts of rape. We affirm.

FACTS AND PROCEDURE

¶2 L.B. was born in 1984. Her mother, C.W., and Edelman began a relationship in 1989 and were eventually married. Edelman lived with C.W. and her family from August 1989 to October 1997. The charges in this case arose from incidents involving Edelman sexually touching and raping L.B. These incidents were charged to have occurred from August 1995 until October 1997. Further facts will be developed in the respective issues.

¶3 The Grand Jury returned an indictment against Edelman on November 20, 1997, charging him with four counts of sexual contact and fifty counts of rape. At the trial Stacey Anderson (Anderson), a criminalist for the State, provided serological evidence which linked Edelman to the crimes. Laurie Grossweiler (Grossweiler) provided evidence regarding DNA testing which could not exclude Edelman as a source of DNA on L.B.'s sheets. Dr. Mark Perrenoud (Perrenoud), a psychologist, testified as to the general characteristics of sexually abused children and Child Sexual Abuse Accommodation Syndrome (CSAAS).

¶4 The jury found Edelman guilty on four counts of sexual contact with a child under sixteen, SDCL 22-22-7 ¹ and fifty counts of rape, SDCL 22-22-1(2). ² Edelman appeals raising the following issues:

1. Whether the testimony of the State's three expert witnesses was proper to present to the jury.

2. Whether there was sufficient evidence to convict defendant of all charges in the indictment.

STANDARD OF REVIEW

SB11[1-4] Expert testimony admissibility is governed by SDCL 19-15-2 (Rule 702). It is well settled that the trial court has broad discretion in regard to the admission of expert testimony. State v. Bachman, 446 N.W.2d 271 (S.D.1989); United States v. Purham, 725 F.2d 450 (8thCir.1984). Absent a clear showing of abuse of discretion, the trial court's decision will not be reversed. State v. Logue, 372 N.W.2d 151 (S.D.1985).

State v. Raymond, 540 N.W.2d 407, 409 (S.D.1995).

Our standard of review of a denial of a motion for judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute the crime, the question is 'whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.' State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).

State v. Thompson, 1997 SD 15, p 34, 560 N.W.2d 535, 542-3 (citing State v. McGill, 536 N.W.2d 89, 91-2 (S.D.1995)).

ANALYSIS AND DECISION

¶5 1. Whether the testimony of the State's three expert witnesses was proper to present to the jury.

¶6 It is not uncommon to use experts to assist a jury in comprehending evidence presented during trial, particularly evidence such as DNA, blood or psychological evidence. SDCL 19-15-2 provides:

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.

¶7 Edelman questions whether the testimony of the State's three experts was proper to present to the jury. He claims the trial court abused its discretion in allowing the testimony of each of these witnesses. We will examine the testimony of each expert below.

[p 8.] a. Dr. Mark Perrenoud--Characteristics of sexually abused children

¶9 Dr. Perrenoud a psychologist from Rapid City, South Dakota, was called as a witness by the State. ³ Perrenoud has a master's degree in counseling, a doctorate in counseling/psychology and has been a licensed psychologist since 1992. His specialty is working with children and teenagers. He also spends a good part of his practice working with juvenile sexual offenders and rape victims. Prior to his testimony, he did not counsel L.B. or have any contact with her.

¶10 Edelman claims the trial court erred in allowing the testimony of Perrenoud to be presented to the jury over his objections for two reasons. First, Edelman claims a paper by Roland Summit on Child Sexual Abuse Accommodation Syndrome (CSAAS) and its conclusions, mentioned by Perrenoud, was not grounded in science but instead were a mere "intellectual exercise." Second, he claims Perrenoud's testimony improperly bolstered the credibility of L.B.'s testimony.

[p 11.] i. Foundation of the CSAAS testimony

¶12 On brief and at oral arguments, counsel for Edelman took issue with Perrenoud's testimony regarding CSAAS. Counsel claims the initial report by Roland Summit that first defined CSAAS was only an "intellectual--not a scientific--endeavor" and the syndrome is not based on scientific principles and therefore was not proper expert testimony.

¶13 South Dakota has adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for the admission of expert scientific testimony in a criminal trial. State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994). What is required is that the "trial judge ... simply determine that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." State v. Moeller, 1996 SD 60, p 52, 548 N.W.2d 465, 479 (citing Hofer, 512 N.W.2d at 484 (other citations and internal quotations omitted)). "Pertinent evidence based upon scientifically valid principles will satisfy those demands." Id. Under Daubert, general acceptance in the scientific community is not required. Id.

¶14 Edelman claims the testimony concerning the CSAAS does not rest on a reliable foundation but instead is an intellectual exercise and not a scientific endeavor. Therefore, he argues the testimony by Perrenoud concerning CSAAS does not meet the Daubert test and the trial court should not have allowed the testimony. Moeller, 1996 SD 60 at p 52, 548 N.W.2d at 479.

¶15 We have allowed testimony on the characteristics of child sexual assault victims. See State v. Floody, 481 N.W.2d 242 (S.D.1992) (testimony of social services worker as to the characteristics of a sexually abused child did not invade the province of the jury); State v. Spaans, 455 N.W.2d 596 (S.D.1990) (expert testimony regarding the symptoms of child sexual abuse is permissible); State v. Bachman, 446 N.W.2d 271 (S.D.1989) (testimony offered to inform the jury of the characteristics displayed by one sexually abused did not reach an ultimate fact and did not invade the province of the jury and therefore met the requirements in the Frye test).

¶16 Contrary to what the State and the defendant's counsel said in oral arguments, the trial transcript establishes Perrenoud did not say the Roland Summit study was only "an intellectual exercise and not recognized" in his scientific community. Instead Perrenoud called the Roland Summit report a "landmark report." He did say that the report had potential for abuse and similar to any other generalization, the CSAAS concept has been overused or abused. There was no testimony by Perrenoud in which he said CSAAS is not accepted in his field.

¶17 Moreover, we are also persuaded by the rationale of other courts who have allowed CSAAS testimony by an expert within proper limits. See State v. Curry, 187 Ariz. 623, 931 P.2d 1133 (App. 1996) (prosecution's expert witness testimony on CSAAS was properly admitted); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995) (expert may testify as to similarities between the victim's behavior and other child sexual abuse victims, however, expert may not vouch for victim's veracity or testify as to defendant's guilt); State v. J.Q., 252 N.J.Super. 11, 599 A.2d 172 (A.D. 1991) (psychologist testimony about child sexual abuse syndrome admissible to explain the victim's secrecy and delayed reporting but may not be used to say the child was telling the truth). ⁴ State v. Doan, 1 Neb.App. 484, 498 N.W.2d 804 (1993) ("In light of the state of social science research and case law as of this writing, we hold that CSAAS evidence is generally reliable to explain secrecy, belated disclosure and recantation by a child sex abuse victim; that syndrome evidence including CSAAS is not reliable to prove that sex abuse, in fact, occurred; and that an expert social science witness has neither the legal authority nor the scientific qualifications to opine as to the truthfulness of the statement of another witness."); But see Commonwealth v. Evans, 412 Pa.Super. 332, 603 A.2d 608 (1992) (admission of testimony concerning CSAAS was reversible error).

¶18 We believe Perrenoud did assist the trier of fact to understand the evidence. He educated the jury as to the general characteristics of CSAAS and he explained why these behaviors occur. The trial court did not abuse its discretion in allowing CSAAS testimony.

[p 19.] ii. Perrenoud did not bolster L.B.'s credibility

¶20 The trial court limited the scope of Perrenoud's testimony only allowing him to testify as to the general characteristics of sexually abused children. In his...