State v. Graham

• Decision Date: 15 October 1990
• Docket Number: No. 23445-5-I,23445-5-I
• Citation: 59 Wn.App. 418,798 P.2d 314
• Parties: STATE of Washington, Respondent, v. Lewis G. GRAHAM, Appellant.
• Court: Washington Court of Appeals

Page 418

59 Wn.App. 418

798 P.2d 314

STATE of Washington, Respondent, v. Lewis G. GRAHAM, Appellant.

No. 23445-5-I.

Court of Appeals of Washington Division 1.

Oct. 15, 1990.

Publication ordered Nov. 13, 1990.

Dawn Monroe, Appellate Defender, Seattle, for appellant.

Lynn Moberly, King County Prosecutor's Office, Seattle, for respondent.

BAKER, Judge.

Lewis Gerald Graham appeals his conviction of two counts of second degree statutory rape and one count of third degree statutory rape. He alleges the trial court erroneously admitted certain expert witness testimony, and that the State committed prosecutorial misconduct. We affirm.

I. FACTS

In February of 1988, C.S., then 15, told a counselor that she had been sexually abused by her stepfather, Lewis Graham. As reported, the first incident occurred shortly before C.S. reached age 13. One night, after C.S.'s sisters had gone to bed and while her mother was at work, Graham felt C.S.'s breast through her nightgown as the two watched television. The following night, again while C.S.'s mother was out, Graham entered C.S.'s bedroom and had sexual intercourse with her. A pattern of abuse evolved which included sexual intercourse three or four times a week until Graham moved out of the house at the end of that year.

Though living elsewhere, Graham periodically babysat C.S. and her sisters when their mother worked nights. On those occasions Graham usually spent the night and frequently had intercourse with C.S. Another incident occurred in the summer of 1986 while travelling in Graham's van. One night Graham parked his van alongside the road and had intercourse with C.S. while her sisters slept. C.S. described another incident which occurred later in 1986 when Graham had sexual intercourse with her at Graham's house.

For a period of time in early 1987, C.S. and her sisters lived with Graham. C.S., then 14, had her own bedroom. Graham slept on the couch. As in the past, Graham frequently had sexual intercourse with C.S. after her younger sisters were asleep. Several months later the two younger girls returned to live with their mother. C.S. remained with Graham. However, in June of 1987, C.S. left Graham's home to live on the streets.

In November 1987, C.S. confided in her grandmother that she did not wish to continue the way she was living. Her grandmother then arranged for C.S. to be placed in a residential treatment center for adolescents in Oregon. In February of 1988, C.S. disclosed to her roommate that she had been sexually abused by Graham. At the roommate's urging she revealed the incidents of abuse to Dale Schumacher, a counselor at the center. Schumacher reported the matter to the authorities in Washington.

Graham was subsequently charged and convicted of two counts of second degree statutory rape and one count of third degree statutory rape. Former RCW 9A.44.080; former RCW 9A.44.090. This appeal followed.

II. EXPERT TESTIMONY

Graham first contends that the trial court erred by admitting certain expert testimony. Dale Schumacher testified that a delay by young women in reporting sexual abuse is not uncommon. Graham argues that Schumacher's testimony was improper because it was not based on a theory generally accepted in the scientific community--a test of admissibility commonly known as the Frye standard. ¹ See ER 702.

At trial, Graham made an issue of the delay between the last alleged incident of sexual abuse, occurring in June of 1987, and when C.S. first told others of the abuse in February of 1988. In rebuttal, the State called Schumacher. She testified concerning her relationship with C.S. and about her experiences with young women who have been sexually abused. Schumacher told the jury that based upon her training and experience, sexually abused girls often delay the reporting of sexual abuse. She testified that all of the girls with whom she had worked waited a period of time before disclosing their abuse. The State's direct examination elicited the following testimony:

Q. Based upon your own experience, as well as the information from the literature and the workshops that you have taken, in your opinion, is it uncommon that a young girl would wait some time before disclosing sexual abuse?

A. It is not at all uncommon that they wait.

Q. Okay. Based upon your experience with the girls who have reported sexual abuse to you, how many of those have waited a significant amount of time?

A. All of them.

Q. A hundred percent?

A. Yes.

Q. And in this particular case, C. waited eight months to report?

A. Yes.

. . . . .

Q. Based upon your own experience with girls who have reported sexual abuse to you, what would you feel the most common time period is that you have seen?

A. I would say about a year.

Q. And in your opinion--again based upon the girls you have counseled, and the literature you have read and the workshops you have attended--why is it that the delay is so common?

. . . . .

THE WITNESS: From my experience and in my opinion, the victims are generally very confused. They often don't know what has been happening to them during the time that it is happening. Their trust has been shattered, in adults in particular, and they generally don't report abuse until they feel that they are in a safe place where they can do that. And that can take a long time.

ER 702 governs the admissibility of expert testimony and 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.

Expert testimony is admissible under this rule when (1) the witness qualifies as an expert, (2) the opinion of the expert is based upon an explanatory theory generally accepted in the scientific community, and (3) the expert testimony is helpful to the trier of fact. State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312 (1984). See also, Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Ms. Schumacher's qualifications as an expert have not been challenged on appeal.

Graham relies upon State v. Black, 109 Wash.2d 336, 745 P.2d 12 (1987) to support his contention that Ms. Schumacher's testimony was scientifically unreliable. However, Black is not applicable. The issue in Black involved the admission of expert testimony on "rape trauma syndrome". The proponents of the syndrome recognize it as a collection of clinically identifiable behavioral reactions to forcible rape. The State sought to prove the victim was raped because she displayed certain symptoms. The evidence was admitted and the defendant was found guilty. The Supreme Court found rape trauma syndrome scientifically unreliable as a means of proving lack of consent in rape. Black, 109 Wash.2d at 348, 745 P.2d 12. The court noted the syndrome's many critics, the lack of any general acceptance for the theory in the scientific community, and pointed out that the theory was not intended to be a forensic fact-finding device. Black, 109 Wash.2d at 347, 745 P.2d 12.

Graham argues that Schumacher's delay phenomenon testimony was merely another form of rape trauma syndrome evidence. He claims admission of the evidence amounted to saying "C.G. was abused and ... Mr. Graham is the one who did it." However, unlike the evidence at issue in Black, the expert testimony admitted in the instant case was not offered to prove that the abuse occurred, rather that delay is not inconsistent with the presence of abuse. The court aptly summed up the testimony's purpose after questioning Schumacher during the State's offer of proof:

THE COURT: Isn't it correct from what you have said, in determining the truth, the fact that it was reported the day before doesn't mean it happened, and the fact that one waits 10 years doesn't mean it happened, but it is not inconsistent with it happening in either case? Is that basically what you are saying?

A. Yes.

The thrust of Graham's cross examination of C.S., indeed the entire thrust of Graham's defense, was designed to demonstrate to the jury that C.S. was not telling the truth. He stressed her delay in reporting the alleged abuse, inferring that the delay was evidence that she was in fact not abused. The State was properly permitted to rebut that inference through Schumacher's testimony.

Graham also contends that the admission of Ms. Schumacher's testimony was improper because it amounted to an expression of the witness's opinion on the issue of guilt, and thus invaded the province of the jury. We disagree. In State v. Madison, 53 Wash.App. 754, 770 P.2d 662, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989), this court discussed the value of expert testimony concerning the delay in reporting sexual abuse.

To an average juror, it may appear that a delay in reporting [sexual abuse] by either an adult or a child, or a recantation of previous allegations, strongly indicates that the alleged event never happened. The testimony approved in ... [State v.] Petrich [, 101 Wash.2d 566, 683 P.2d 173 (1984) ], and that presented in this case, "will assist the trier of fact to understand the evidence or to determine a fact in issue". ER 702.

Madison, 53 Wash.App. at 765, 770 P.2d 662.

Moreover, in Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984) the court ruled that once a witness's credibility is at issue, evidence tending to corroborate the testimony may be obtained from an expert witness. Petrich, 101 Wash.2d at 575, 683 P.2d 173. Because Graham denied the acts charged, C.S.'s credibility was at issue during the trial.

While Schumacher's testimony was intended to help the jury understand the evidence, it was not, as Graham contends, offered as commentary upon his guilt. At no time did the witness directly or indirectly offer her opinion as to the truthfulness of C.S.'s allegations. See Madison, 53 Wash.App. at 760, 770 P.2d 662; State v....