State v. Hulbert

• Decision Date: 19 February 1992
• Docket Number: No. 90-452,90-452
• Citation: 481 N.W.2d 329
• Parties: STATE of Iowa, Appellee, v. Bart HULBERT, Sr., Appellant.
• Court: Iowa Supreme Court

Page 329

481 N.W.2d 329

STATE of Iowa, Appellee, v. Bart HULBERT, Sr., Appellant.

No. 90-452.

Supreme Court of Iowa.

Feb. 19, 1992.

Linda Del Gallo, State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Julie Ann Halligan, Asst. Atty. Gen., and Lawrence A. Stumme, County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and ANDREASEN, JJ.

NEUMAN, Justice.

This case is before us on further review from a court of appeals decision that reversed defendant Bart Hulbert's criminal convictions for sexually assaulting his ten-year-old daughter. The court of appeals' reversal rested on its view that Hulbert was unfairly prohibited from tendering expert testimony that would show he did not fit the psychological "profile" of known child molesters. Because we believe the district court's evidentiary ruling fell within its sound discretion, we vacate the court of appeals opinion, reinstate the convictions, and remand to correct a sentencing error conceded by the State.

The charges against Hulbert stem from a conversation between his daughter, N.H., and her school guidance counselor following a fourth-grade program about "good, bad, and confusing touches." N.H. revealed to the counselor, and later to child abuse investigators, several incidents of sexual contact with her father. At the time, Hulbert and N.H.'s mother were separated; Hulbert had custody of N.H. and her younger brother.

After further investigation, including interviews with Hulbert himself, the State charged him with violating Iowa Code sections 709.1 and 709.3 (1989) (second-degree sexual abuse), 709.8 (lascivious acts with a child), and 709.12(1) (indecent contact with a child). Prior to trial, Hulbert successfully moved in limine to exclude from evidence a videotaped interview between N.H. and child protective worker Kathryn Lee. The case proceeded to trial. The State rested its case on the testimony of N.H., the guidance counselor, investigator Elizabeth Branstad, the Bremer County Sheriff who interviewed both Hulbert and his wife, N.H.'s mother (Pamela Hulbert), and Dr. Kathleen Opdebeeck (pediatrician and director of the Child Protection Center in Cedar Rapids). The defense responded with testimony from Hulbert's mother and stepfather concerning defendant's close relationship with N.H. and their view that she could be a temperamental child who was, on occasion, untruthful. Also called were the school principal and a cousin who testified regarding Hulbert's history as an interested parent concerned for his daughter's welfare.

Defendant also offered the expert opinions of Dr. Ralph Underwager, a psychologist with extensive background in the evaluation and treatment of sex abuse victims and perpetrators. Based on his research and professional experience, the psychologist offered his opinion about the "good touch, bad touch" curriculum and the interview techniques generally employed by child abuse investigators. He was not allowed, however, to critique the videotaped interview between N.H. and Kathryn Lee because it was not in evidence. Nor was he permitted to express his view that the results of Hulbert's psychological tests did not match those of the typical abuser.

The jury convicted Hulbert of second-degree sexual abuse, lascivious acts, and indecent contact. The court sentenced Hulbert to concurrent indeterminate terms of twenty-five years on the sex abuse conviction and five years on the lascivious acts conviction. Expressing concern about the "present status of parole" and "the time necessary for [Hulbert] to complete the sexual offenders' program," the court ordered the two-year sentence on the indecent contact conviction to run consecutively to the other sentences. Further facts will be detailed as they pertain to the issues raised on appeal.

I. Psychologist's testimony. Hulbert's appeal raises two issues concerning the limits placed on Dr. Underwager's testimony: (1) the court's refusal to allow his critique of the Kathryn Lee interview of N.H., and (2) its refusal to permit opinion testimony about whether Hulbert fit the profile of a child molester. Because the court of appeals' reversal rested on the second issue, we shall address it first.

A. Profile. Through the testimony of Dr. Underwager, Hulbert sought to introduce results of psychological tests showing that he was a normally functioning individual whose test results did not match the psychological pattern or profile of known sex abusers. In an offer of proof, Underwager testified that child molesters are: (1) almost exclusively male; (2) immature and incapable of maintaining adult heterosexual relationships, socially inept, and withdrawn; (3) unable to control their impulses; and (4) often demonstrate a high level of anger. Hulbert, on the other hand, tested within normal limits on a battery of tests for traits of coping ability, social skill, self-concept, honesty, openness, loyalty, conflict avoidance, idealism, sensitivity to others, and love for his children. When asked to compare Hulbert's test results with those of known sex offenders, Dr. Underwager testified in the offer of proof that he could find no similarity between the two profiles.

The court sustained the State's motion to exclude this evidence on the ground it was not a proper subject of expert testimony and would invade the jury's exclusive domain regarding issues of credibility. On appeal, Hulbert claims the evidence would have aided the jury's understanding of the behavioral and psychological traits of known molesters, thereby raising a reasonable doubt regarding his guilt. He also contends the testimony should have been admitted as relevant evidence of good character and his nondisposition to commit the charged offenses.

We begin our analysis by noting that the admissibility of opinion evidence falls squarely within the trial court's sound discretion. State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). Reversal is justified only when that discretion is abused; that is, when the court's decision rests on clearly untenable grounds. Id. Our jurisprudence has generally reflected a liberal view about psychological evidence, vesting the trial courts with broad discretion in its admission "guided by the question of whether the expert's opinion will be helpful to the jury in performing its function." State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985); see State v. Gettier, 438 N.W.2d 1, 4, 6 (Iowa 1989) (within court's discretion to admit expert testimony regarding classic psychological symptoms of traumatic stress syndrome); State v. Hood, 346 N.W.2d 481, 485 (Iowa 1984) (no abuse of discretion where court admitted psychological evidence of "passive-dependent" personality relevant to codefendant's inability to form requisite criminal intent); State v. Tonn, 441 N.W.2d 403, 405 (Iowa App.1989) (citing Myers for proposition that experts are generally allowed to express opinion on matters relevant to mental symptoms present in sexually abused children).

Our cases also hold, however, that expert psychological evidence may not be used to merely bolster a witness's credibility. This is because veracity is not a "fact in issue" subject to expert opinion. Myers, 382 N.W.2d at 97. Assessment of a witness's credibility is uniquely within a lay jury's common understanding. Halstead, 362 N.W.2d at 507. Thus neither prong of the rule permitting expert testimony could be met by the offer of such evidence; the specialized proof would neither "assist the trier of fact to understand the evidence [nor] determine a fact in issue." Iowa R.Evid. 702.

Nor may such opinion evidence be employed as a direct comment on the guilt or innocence of the defendant. Myers, 382 N.W.2d at 95. Such opinions would replace, not aid, the jury's function. Id. Our court of appeals recently noted this distinction in State v. Dodson, 452 N.W.2d 610 (Iowa App.1989), in which the defendant challenged the admissibility of psychological testimony offered to explain the behavior of child witnesses who are the alleged victims of abuse. Noting that the probative value of "accommodation syndrome" evidence is limited because, according to this psychological theory, abused and nonabused children often behave similarly, the court wisely observed that "[t]here is a very fine line between an opinion that is helpful to a jury and an opinion that merely conveys a conclusion concerning defendant's guilt." Id. at 612.

Our concern is whether Dr. Underwager's proposed testimony crosses this fine but essential line. It is clear that Hulbert had the right, as a criminal defendant, to offer evidence of his own good character for the purpose of proving it unlikely that he committed the crimes charged. State v. Hobbs, 172 N.W.2d 268, 271 (Iowa 1969); Hood, 346 N.W.2d at 485; Iowa R.Evid. 404(a)(1). Ordinarily this proof would be offered through the testimony of laypersons in the community who are aware of the defendant's "real" character either by direct knowledge or reputation. Hobbs, 172 N.W.2d at 271. This is the kind of character evidence Hulbert produced through the testimony of N.H.'s school principal and his cousin--that he is a caring and devoted parent, concerned only with the welfare of his child and thus unlikely to commit the unspeakable acts alleged here. Consistent with the general rule, this evidence related to opinions formed prior to commission of the offenses. Id. at 274.

By contrast, Dr. Underwager's proposed "professional" character evidence was based on Hulbert's performance on after-the-fact interviews and standardized test scores. We have upheld the admission of similar evidence where it related to a personality disorder suffered by a criminal codefendant that would potentially negate the intent element in a prosecution for first-degree murder. See Hood, 346 N.W.2d at 485. But here the proffered testimony bears on Hulbert's freedom from mental disorder. To highlight his normalcy, Hulbert seeks a...