State v. Jensen

• Decision Date: 11 August 1987
• Docket Number: No. 86-1915-CR,86-1915-CR
• Citation: 141 Wis.2d 333,415 N.W.2d 519
• Parties: STATE of Wisconsin, Plantiff-Respondent. v. Lew JENSEN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 519

415 N.W.2d 519

141 Wis.2d 333

STATE of Wisconsin, Plantiff-Respondent. v. Lew JENSEN, Defendant-Appellant.

No. 86-1915-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 15, 1987.

Opinion Released Aug. 11, 1987.

Opinion Filed Aug. 11, 1987.

Review Granted.

Glenn L. Cushing, Asst. State Public Defender, Madison, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Sharon Ruhly, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Before CANE, P.J., MYSE and DYKMAN, JJ.

MYSE, Judge.

Lew Jensen appeals a judgment convicting him of sexual assault, contrary to sec. 940.225(1)(d), Stats., and an order denying his motion for postconviction relief. Jensen argues that the trial court erroneously permitted a guidance counselor to testify as an expert and express an opinion that the complainant's behavior was consistent with that of a sexually abused child. He also argues that the trial court erred by submitting his written confession to the jury for their use during deliberations. We conclude that the court properly permitted the guidance counselor to testify as an expert and that the court's error in permitting him to express an opinion that connected the complainant's behavior with that of a sexually abused child was harmless. We also conclude that sending Jensen's written confession to the jury room was harmless error. The judgment and order are affirmed.

Lew Jensen was charged with sexually assaulting his eleven-year-old stepdaughter, L.J. At trial Thomas Bosman, L.J.'s school guidance counselor, testified that L.J.'s "acting out" behavior at school following the alleged sexual assault was consistent with that exhibited by a sexually abused child.

At trial, the state also introduced into evidence Jensen's written confession to the charged sexual assault. Jensen testified that the confession was untrue and that he had made it because he believed that only by doing so could he retain custody of L.J. The court sent Jensen's confession to the jury for their use during deliberations.

Jensen contends that the trial court erred by permitting Bosman to testify as an expert in the behavior exhibited by sexually abused children. We disagree.

A trial court has broad discretion in determining whether a witness has sufficient knowledge, skill, experience, or training to qualify as an expert. Hampton v. State, 92 Wis.2d 450, 455-56, 285 N.W.2d 868, 871-72 (1979); sec. 907.02, Stats. We will uphold the exercise of that discretion unless the circumstances demonstrate that the court's determination was manifestly wrong and constituted an abuse of discretion. Id.

The trial court could reasonably determine that Bosman was qualified as an expert in the behavior exhibited by sexually abused children. Bosman holds a master's degree in guidance and counseling and a bachelor's degree in elementary education. He has also earned fourteen credits beyond his master's degree and has undergone specialized training regarding sexual abuse of children. Bosman testified that he had been employed as a guidance counselor for fifteen years and that during the last four years he had been involved in investigating one to two suspected cases of sexual child abuse per year. Based upon Bosman's training and prior experience, the trial court did not abuse its discretion by permitting him to testify as an expert in the area of sexual child abuse. See State v. Haseltine, 120 Wis.2d 92, 95 n. 5, 352 N.W.2d 673, 675 n. 5 (Ct.App.1984).

Next, Jensen contends that the trial court erred by permitting Bosman to opine that L.J.'s behavior at school following the alleged sexual assault was consistent with that of a sexually abused child. The prosecutor asked Bosman: "[i]n your opinion ... are the kinds of acting out behavior that the teachers described to you that they were seeing in [L.J.] consistent with children who were victims of sexual abuse?" Bosman replied "Yes." Jensen claims that this testimony impermissibly bolstered L.J.'s credibility because it implied that she was telling the truth about the alleged sexual assault. See id. at 97-98, 352 N.W.2d at 676; sec. 906.08, Stats. We conclude that the admission of this testimony was harmless error.

Determining whether an expert's opinion should be admitted into evidence is a matter resting within the trial court's discretion. State v. Friedrich, 135 Wis.2d 1, 15, 398 N.W.2d 763, 769 (1987). A trial court abuses its discretion, however, when it misapplies the law. State v. City of La Crosse, 120 Wis.2d 263, 268, 354 N.W.2d 738, 740 (Ct.App.1984).

In Haseltine, 120 Wis.2d at 96, 352 N.W.2d at 676, we concluded that an expert should not be permitted to testify that a complainant had been sexually assaulted based upon the victim's subsequent conduct because no expert "should be permitted to give an opinion that another mentally and physically competent witness is telling the truth." An opinion that the complainant was sexually assaulted or is telling the truth is impermissible. Id. We also noted, however, that such testimony would be admissible if its purpose was to explain what otherwise would be ambiguous or contradictory conduct by a complainant:

Depending on the case, the testimony of an expert might aid the jury. For example, an incest victim may not immediately report the incest, or may recant accusations of incest. Jurors might reasonably regard such behavior as an indication that the victim was not telling the truth. An expert could explain that such behavior is common among incest victims as a result of guilt, confusion, and a reluctance to accuse a parent.

Id. at 97, 352 N.W.2d at 676 (citation omitted). Under this exception, such testimony does not involve an expert's opinion that a sexual assault had occurred. Rather, such testimony is limited to explaining that certain conduct is the natural product of a victim's psychological condition.

Under Haseltine, an expert's opinion that a complainant has been sexually assaulted is inadmissible. A complainant's conduct may not be used to prove that an assault has occurred but an assault may be used to explain a complainant's later ambiguous or contradictory conduct.

The line drawn between the two considerations in Haseltine is not always readily perceived and, under the best of cases, the danger that the jury will regard a complainant's conduct as proof of an assault is always present. In order to minimize this danger and keep the Haseltine considerations clearly distinguished, we suggest that such opinion testimony be elicited in the form of a hypothetical question coupled with a cautionary instruction to the jury. ¹ The instruction should warn the jury that the complainant's conduct may not be used as evidence that an assault has occurred and that if the hypothesis is infirm, the expert's opinion is equally infirm. See Wis.J I--Criminal 205 (1987).

By using the hypothetical form coupled with a cautionary instruction, the danger that the jury will regard the expert's opinion as evidence that the complainant had been sexually assaulted will be reduced. Although there remains a potential danger that the jury will reason that the complainant's subsequent conduct proves the assault, a hypothetical question focusing on the complainant's conduct will not only lessen this danger but also reduce the possibility that the expert will inadvertently stray into the prohibited area.

As a foundation for admitting an expert's opinion on this issue, evidence must be introduced of an assault and the complainant's ambiguous or contradictory conduct. See Novitzke v. State, 92 Wis.2d 302, 305-07, 284 N.W.2d 904, 906-07 (1979); Schulz v. St. Mary's Hosp., 81 Wis.2d 638, 648-49, 260 N.W.2d 783, 785-86 (1978). In cases where such an inquiry is appropriate, the expert's opinion must focus on the complainant's conduct. Both the court and counsel should take steps necessary to ensure that the expert's opinion is not used for an impermissible purpose.

Here, Bosman's testimony falls closely between the two considerations in Haseltine. Although Bosman opined that L.J.'s acting out was consistent with that exhibited by a sexually abused child, that opinion was directed at explaining L.J.'s unusual conduct in school following the alleged sexual assault. Nevertheless, under Haseltine an expert is precluded from testifying that a complainant's behavior following an alleged sexual assault was proof that an assault occurred. The question of whether the conduct was consistent with that of a sexual assault victim is but another way of attempting to reach the impermissible conclusion that the conduct proves the assault.

In essence, Bosman testified that L.J.'s behavior following the alleged sexual assault demonstrated that she had been sexually assaulted. This testimony impermissibly bolstered L.J.'s credibility and her testimony that Jensen had assaulted her. Accordingly, the trial court erred by permitting Bosman to express an opinion on this issue. We conclude, however, that this error was harmless.

An error is harmless if there is no reasonable possibility that it contributed to the conviction. State v. Grant, 139 Wis.2d 45, 406 N.W.2d 744, 748 (1987). A reasonable possibility is that which undermines a court's confidence in the outcome of the case. Id. In making this determination, a court examines the error in the context of the entire trial. Id.

The outcome in this case was not undermined by Bosman's testimony that L.J.'s acting out behavior was consistent with that of a sexually abused child. The chief issue at trial was L.J.'s credibility in light of her testimony that Jensen had assaulted her. The emphasis of Bosman's testimony was to explain L.J.'s unusual conduct in school following the alleged sexual assault, not to prove that she had been sexually assaulted. Given the context in which this testimony was introduced, it is unlikely that the jury drew the impermissible conclusion that L.J.'s later conduct was proof that an...