State v. Gersin

• Decision Date: 28 August 1996
• Docket Number: No. 94-2739,94-2739
• Citation: 76 Ohio St.3d 491,668 N.E.2d 486
• Parties: , 65 USLW 2192 The STATE of Ohio, Appellant, v. GERSIN, Appellee.
• Court: Ohio Supreme Court

Page 491

76 Ohio St.3d 491

668 N.E.2d 486, 65 USLW 2192

The STATE of Ohio, Appellant, v. GERSIN, Appellee.

No. 94-2739.

Supreme Court of Ohio.

Submitted Jan. 24, 1996.

Decided Aug. 28, 1996.

SYLLABUS BY THE COURT

A defendant in a child sexual abuse case may present testimony as to the proper protocol for interviewing child victims regarding their abuse.

Appellee, Gary Gersin Sr., was convicted of four counts of gross sexual imposition for acts allegedly perpetrated against his daughter, Theresa. Gersin's contact with Theresa came to light while Theresa was in the care of her half-brother, Gary Gersin, Jr., who had custody of Gersin's three youngest children. An incident occurred between Gersin and Theresa when Gersin went to Gary Jr.'s home to pick up Theresa for unsupervised visitation.

Theresa told Gary, Jr. about the incident. Gary, Jr. and his wife, Michelle, told Gersin that he could not take Theresa that day, and contacted the Lake County Department of Human Services. A social worker and a police officer came to the house to talk to Theresa, and they suggested that visitation be terminated temporarily. Gary, Jr. and Michelle were instructed to go to the police station with Theresa to fill out a report.

Gary, Jr. and Michelle took Theresa to the police station the next day, June 25, 1992. Theresa was introduced to the different officers and given a toy badge. Deputy Tim DiPadova eventually interviewed Theresa, but terminated that interview when she began to get sick. A doctor diagnosed Theresa as suffering from an anxiety reaction.

In August, after Gary, Jr. decided to go forward with a complaint against his father, Peggy Taylor, the Executive Director of the Lake County Sexual Assault Center, interviewed Theresa in two separate one-hour interviews.

At trial, Theresa, Deputy DiPadova, and Taylor all testified for the prosecution. Gersin attempted to introduce testimony from Dr. Richard Klein. Gersin's counsel explained to the trial judge the purpose of Klein's testimony in a bench conference:

"I had asked him to come and testify as to the proper approach to use with children whenever you're interviewing them for sexual abuse purposes. Basically, laying out what the proper procedure is, that in a custody area one must be extra careful because of increase in the possibility of false accusations; that there was [sic ] some things that were not done that should have been done in order to evaluate this situation under certain conditions.

" * * *

" * * * Let me just add for the record that among the other things that I had discussed from talking to, not only this psychologist but other psychologists in preparing for this case, that part of the problem with children in this age is that when the proper interview process is not followed, or the children are being influenced, or even if you want to use the word brainwashed, the problem is they reach the point where they actually believe something happened when it didn't but that's because of their perception of it. That's the information the adults were giving them."

The trial court did not allow Klein to testify, based on this court's decision in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, which held that an expert may not testify as to the veracity of a child witness. The court of appeals reversed that ruling, finding the proposed testimony distinguishable from that sought to be introduced in Boston. The court of appeals found that the testimony concerned not Theresa's veracity, but rather the method and technique used by prosecution witnesses to elicit Theresa's story.

The matter is now before this court upon the allowance of a discretionary appeal.

Charles E. Coulson, Lake County Prosecuting Attorney, Ariana E. Tarighati, Michael D. Murray and Julie E. Mitrovich, Assistant Prosecuting Attorneys, for appellant.

Talikka, Ischie, Talikka & Wilson and Kristi S. Talikka, Painesville, for appellee.

David H. Bodiker, Ohio Public Defender, and Barbara A. Farnbacher, Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public Defender Commission.

E. Charles Bates, Defiance, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.

PFEIFER, Justice.

It is tragic that child sexual abuse cases are so prevalent that a body of law has been created which addresses their unique issues. Today, we are faced with yet another such case, and hold that a defendant in a child sexual abuse case may present testimony as to the proper protocol for interviewing child victims regarding their abuse. Rather than infringing upon the fact finder's role, such testimony assists the trier of fact, and therefore is consistent with this court's holding in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220.

In Boston, this court held that "[a]n expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." Id. at syllabus. To allow an expert to so testify, this court held, " 'infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility.' " Id. at 128-129, 545 N.E.2d at 1240. This court emphasized that " '[i]n our system of justice, it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.' " Id. at 129, 545 N.E.2d at 1240. We do not retreat from those statements in this case.

Boston also stands for the proposition that expert testimony can be helpful to a jury in a child sexual abuse case. In Boston, this court determined that expert testimony on the ultimate issue of whether sexual abuse has occurred in a particular case is helpful to jurors and is therefore admissible pursuant to Evid.R. 702 and 704. This court reasoned that "[m]ost jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse. Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been...