State v. Engelby

Decision Date12 June 2020
Docket NumberSCWC-15-0000724
Citation465 P.3d 669
Parties STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Jason ENGELBY, Petitioner/Defendant-Appellant.
CourtHawaii Supreme Court
I. INTRODUCTION

Jason Engelby was found guilty by a jury of two counts of Sexual Assault in the First Degree for molesting a minor child (Child), the daughter of a close friend, when Child was nine and ten years old. Engelby appealed, and the Intermediate Court of Appeals (ICA) affirmed. On certiorari, we must assess Engelby's claim that Dr. Alexander Bivens, the State's expert witness in child sexual assault dynamics, impermissibly bolstered Child's credibility.1

The testimony that Engelby seeks to challenge now was not introduced during the State's case-in-chief. Rather, during its cross-examination of Dr. Bivens, the defense initiated a discussion about the credibility of alleged victims of child sexual assault, apparently to develop a theory that Child's memories of the alleged assaults may have been suggested to her by someone else. Specifically, the defense elicited testimony from Dr. Bivens that distinguished the circumstances in which a child would intentionally make false allegations about sexual assault from the circumstances in which a child would be susceptible to the implantation of false memories by third parties. The State further developed that testimony on re-direct examination, without any objection by the defense.

Having used Dr. Bivens’ testimony on children's general credibility to his own advantage, and having failed to object when the State elicited further testimony on re-direct examination, Engelby should not now be able to challenge that testimony on the basis of impermissible bolstering. Accordingly, we affirm the ICA's judgment on appeal.

II. BACKGROUND

The State charged Engelby with two counts of Sexual Assault in the First Degree in violation of HRS § 707-730(1)(b).2 The charges alleged that Engelby had molested Child on multiple occasions between December 1, 2011 and December 4, 2012.3

A. Hawai‘i Rules of Evidence Rule 104(a) Hearing

Both parties had filed motions in limine prior to trial to determine whether Dr. Bivens was qualified to testify as an expert witness and, if so, what the appropriate scope of his testimony would be. The State moved for the court to qualify Dr. Bivens as "an expert witness on the dynamics of child sexual assault," and asserted that Dr. Bivens’ testimony would address the dynamics of child sexual assault and cover patterns of behavior exhibited by child victims of sexual assault "which [might otherwise seem] inconsistent with [the] behavioral norms of other victims of assault[,]" such as delayed reporting and tunnel memory.4 Engelby requested the court to conduct a hearing "to determine the qualifications and relevance of [Dr. Bivens’] testimony."

Following the parties’ opening statements and testimony from the State's first witness, Detective Brian Tokita with the Honolulu Police Department (HPD), the circuit court conducted a Hawai‘i Rules of Evidence (HRE) Rule 104(a) hearing outside the presence of the jury to determine these issues.

The defense objected to Dr. Bivens testifying at trial. First, the defense explained that it was "not challenging [ ] any of the contents of [Dr. Bivens’] curriculum vitae." Instead, the defense challenged his proffered testimony by arguing that it would be irrelevant and unduly prejudicial, improperly bolster the State's witnesses, usurp the function of the jury, and improperly profile Engelby as a child molester. The defense explained:

We are objecting based on not just [State v. ] Batangan, [71 Haw. 552, 799 P.2d 48 (1990),] but we're objecting for irrelevance.
We are objecting that it would be unduly prejudicial to Mr. Engelby because it would be considered improper bolstering, and also we would object that it would also be improper profiling, and profiling of what a person who would commit these kinds of offenses may or may not be, and we would argue that that would be inherently prejudicial.
Also, we object that it would be usurping the function of the jury, that the jury can determine, from listening to the witnesses, whether or not they choose to feel someone's credible or not, and it would violate my client's rights under the due process clause.

The defense contended that delayed reporting in cases of child sexual abuse was "part of the general knowledge of the public," and that expert testimony on that topic was therefore not necessary. The defense also questioned whether Dr. Bivens was qualified to address tunnel memory, and requested that the term "grooming" be "in limined" out.

In response, the State asserted that Dr. Bivens’ testimony was relevant, and that testimony on "the dynamics of a sexual assault by a family member or someone close to the family" would assist the jury in understanding how children might experience and react to sexual abuse within the home. The State explained that this dynamic was not familiar to lay people, and that children's reactions in this type of situation might differ from the reactions that a person of ordinary understanding might otherwise expect. The State also clarified, inter alia, that it sought to elicit testimony from Dr. Bivens about delayed reporting and tunnel memory, that Dr. Bivens "would not be commenting on anyone's credibility or believability[,]" and that it would make clear to the jury that Dr. Bivens had no familiarity with the case or its witnesses.

The circuit court ruled that Dr. Bivens’ testimony was relevant, noting that:

The Court is not in agreement with the defense in terms of this being general knowledge to which the jury does not need assistance .... [T]he Court does believe that ... the testimony of an expert would be of assistance to the jury with respect to specifically, the behaviors that are associated with this type of offense for delayed reporting and, perhaps, inconsistent reporting.

The circuit court further ruled:

[Dr. Bivens can] testify to his experience and research on delayed disclosure ... [,] children's reaction[s] to the event[s,] and [ ] explanation[s] of the manner[s] of disclosure and the reasons for the delay[s].
At this point[,] the court will leave outstanding the testimony associated with tunnel memory, unless and until [Dr. Bivens] can be qualified that he's able to testify as to tunnel memory[.] [Additionally,] I'll grant the [defense's] oral motion to in limine out the word "grooming" in [Dr. Bivens’] testimony.
B. Dr. Bivens’ Testimony

Dr. Bivens was the next witness called by the State. After Dr. Bivens testified as to his credentials and qualifications, the circuit court qualified Dr. Bivens as an expert witness in clinical psychology "with [an] emphasis in the general dynamics of child sexual assault."

1. Direct Examination

Dr. Bivens first explained that, in the context of child sexual assault, studies consistently showed "that sexual abuse most often occurs in the context of a preexisting relationship, preexisting nonsexual relationship between the adult and the child." Furthermore, he explained that in his own practice, he could only recall "a couple of cases ... [of] stranger abuse[,]" and that "[m]ost often, [the molester would be] someone [that the child] ... knew well" and that the child and family trusted.

Relating to delayed disclosure, Dr. Bivens testified that "[d]elay[ed disclosure] [was] the rule, [rather than] the exception" for children who had been sexually assaulted, and that "the most common thing [for children to] do when molested [was to] not say anything for a long time." He explained that it was not atypical for children to wait months or years to disclose their abuse, and also not atypical for them to "allow the abuse to continue ... for a long period of time before disclosing." He explained, "[t]he closer the relationship between the abuser and the child, the longer it [would] take to disclose."

Dr. Bivens further discussed the most common reasons for children's delayed disclosures, including fear of not being believed, embarrassment, and not wanting to harm anyone, as well as the types of situations that would prompt disclosure. He then explained that children most often disclosed to their "mothers and close friends[,]" and that children's initial disclosures often contained incomplete information.

Dr. Bivens also explained that he was familiar with research on the topic of tunnel memory and that he dealt with patients "every week" within his clinical practice who were experiencing tunnel memory. Based on this testimony, the circuit court ruled that Dr. Bivens had adequately laid a foundation to testify on this topic.5 With regard to tunnel memory, Dr. Bivens then explained that while "the details of the sexual abuse" would be remembered well by victims, peripheral details, such as "the dates and times" of the occurrences, "[would be] remembered less well."

Dr. Bivens also discussed the typical interactions children had with their molesters, including: (1) "loving, seductive relationship[s]"; (2) "playful relationship[s] that [would] begin[ ] to involve sexual touching"; (3) "coercive relationship[s]"; and/or (4) "feeling taken advantage of[,]" in which the touching would occur while the children were sleeping. Dr. Bivens also testified that "there are two places where child sexual abuse most often occurs, and that it is the child's own home and in the molester's own home."

The State did not ask Dr. Bivens to comment on children's credibility on direct examination, and Dr. Bivens did not do so. Further, Dr. Bivens emphasized that he had never spoken with nor met the witnesses in the instant case and was unfamiliar with the case's facts. He explained, "I've just been talking about general dynamics. And, in fact, the material that I've shared today is very similar to the general dynamics training that I do. It's just [in] a longer format when I do that training."

2. Cross-Examination

The subject of children's credibility was first raised on...

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