State v. Konechny

• Decision Date: 01 June 2000
• Docket Number: No. 25384.,25384.
• Citation: 3 P.3d 535,134 Idaho 410
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Zdenek Gusdav KONECHNY, Defendant-Appellant.
• Court: Idaho Court of Appeals

3 P.3d 535

134 Idaho 410

STATE of Idaho, Plaintiff-Respondent, v. Zdenek Gusdav KONECHNY, Defendant-Appellant.

No. 25384.

Court of Appeals of Idaho.

June 1, 2000.

Lynn, Scott, Hackney & Jackson, Boise, for appellant. J. Gardiner Hackney Jr. argued.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

LANSING, Judge.

The principal issue in this case concerns the evidentiary foundation that must be laid for the admission of a mental health professional's opinion that a child has been subjected to sexual abuse. Because we conclude that such testimony was admitted in this case without an adequate foundation to show either the witnesses' qualifications to render such opinions or the reliability of their opinions, we vacate the judgment of conviction and remand the case for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Zdenek Gusdav Konechny was charged with two counts of lewd and lascivious conduct with a child under sixteen, Idaho Code § 18-1508, based upon the allegations of his stepdaughters, A.B. and C.D.¹ A.B. was five years old and C.D. was seven years old at the time of the alleged offenses. In December 1997, while A.B. and C.D. were visiting their natural father and his family, the girls disclosed to their fifteen-year-old stepsister that Konechny had inappropriately touched them. According to A.B. and C.D., Konechny had on several occasions, while alone with them, manually touched them on their genitalia. The police were contacted on the day of disclosure, and the children subsequently participated in a number of interviews at the Children at Risk Evaluation Services (CARES) agency.

Konechny denied the charges, and a jury trial was conducted. During the trial, the State's witnesses included two counselors, Heidi Hart and Penny McKay, each of whom had treated one of the claimed victims. The counselors were allowed to testify, over Konechny's objection, that the girls had been sexually abused. Hart, who was C.D.'s counselor, testified as follows:

Q: This opinion that you have with regard to [C.D.], whether or not she's been a victim of sexual abuse, what is your opinion?

[Defense objection overruled.]

A: I believe that C.D. is a victim of sexual abuse.

Q: What is that based upon?

A: That is based upon reading the CARES interview and her disclosure there and my time with [C.D.] in our sessions and being able to talk with primarily the father who is the one that has transported her to the sessions, so what he's observing, and periodically phone calls with the mother.

Counselor McKay, who had been treating A.B., also rendered an opinion that sexual abuse had occurred:

Q: Basically from your visits with [A.B.] and your training and experience, do you have an opinion on whether or not you believe she was the victim of sexual abuse?

A: Yes.

[Defense objection overruled.]

Q: What's that based upon?

A: Based upon my experience, my training and the consistency of the child.

Q: Over the sessions that you have had with her?

A: Yes.

Q: What is your opinion?

A: That she was sexually abused.

The jury found Konechny guilty of both counts, and the district court sentenced him to concurrent unified sentences of ten years, with two-year minimum terms of incarceration. On appeal, Konechny raises a number of challenges to the district court's decisions admitting and excluding evidence at trial, including the district court's decision overruling Konechny's objections to the testimony of the counselors.

II. ANALYSIS

A. Admission of Opinion Testimony of State's Experts

Konechny asserts that the foundation for the counselors' testimony was inadequate with respect to both the qualifications of the witnesses as experts and the scientific bases for their opinions.² When a trial court's decision to admit or exclude expert testimony is challenged on appeal, we review the decision for an abuse of discretion. State v. Merwin, 131 Idaho 642, 645-46, 962 P.2d 1026, 1029-30 (1998); State v. Winn, 121 Idaho 850, 855, 828 P.2d 879, 884 (1992); State v. Dragoman, 130 Idaho 537, 542, 944 P.2d 134, 139 (Ct. App.1997).

The Idaho Supreme Court has held that "an expert can render an opinion that a child has been sexually abused if he is qualified by knowledge, skill, experience, training, or education." State v. Hester, 114 Idaho 688, 692, 760 P.2d 27, 31 (1988). See also State v. Lewis, 123 Idaho 336, 351, 848 P.2d 394, 409 (1993). However, on several occasions both the Supreme Court and this Court have held that such opinions were not admissible because the witness's testimony lacked a demonstration of either the requisite expertise on the part of the witness or a reliable basis for the opinion or both. See State v. Zimmerman, 121 Idaho 971, 978, 829 P.2d 861, 868 (1992); State v. Pugsley, 128 Idaho 168, 175-76, 911 P.2d 761, 768-69 (Ct.App. 1995); State v. Allen, 123 Idaho 880, 884, 853 P.2d 625, 629 (Ct.App.1993); State v. Johnson, 119 Idaho 852, 857, 810 P.2d 1138, 1143 (Ct.App.1991). The issues raised by Konechny's appeal require that we now examine and express with more specificity the foundational prerequisites for the admission of an expert's opinion that a child has been sexually abused.

1. Qualifications of the State's expert witnesses

We consider first Konechny's challenge to the qualifications of Hart and McKay to render opinions as to whether a child has been sexually abused.

The admissibility of expert testimony is governed by Idaho Rule of Evidence 702, which 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.

This rule requires that an expert be "qualified." The five sources of expert qualifications identified in the rule, knowledge, skill, experience, training, or education, are disjunctive. State v. Hopkins, 113 Idaho 679, 681, 747 P.2d 88, 90 (Ct.App.1987). Therefore, academic training is not always a prerequisite to be qualified as an expert; practical experience or specialized knowledge may be sufficient. West v. Sonke, 132 Idaho 133, 139, 968 P.2d 228, 234 (1998); Hopkins, supra. However, there must be some demonstration that the witness has acquired, through some type of training, education or experience, the necessary expertise and knowledge to render the proffered opinion.

In this case, the State provided little in the way of foundational information to qualify the counselors as expert witnesses in the field of diagnosing child sexual abuse, i.e., determining whether a child has in fact been subjected to sexual molestation. Hart testified that she had a bachelor's degree in an unspecified field and had received a master's degree in education. She had been licensed as a counselor since 1994. After an internship at the Sexual Abuse Now Ended (SANE) program, Hart began working there full time in 1994. She briefly described her work experience at SANE as including the treatment of adult sex offenders and the assessment of juvenile offenders in preparation for trial. At the time of Konechny's trial, Hart's work focused on counseling victims of sexual abuse. She had attended 350 hours of conferences dealing with the treatment of sexual abuse and had conducted twenty-four counseling sessions with C.D. At no point during her testimony did Hart detail any training, experience, skill, knowledge, or education in identifying or diagnosing children who have been subjected to sexual abuse. To the contrary, the foundational evidence presented only a background in counseling or treatment.

We recognize that there is overlap between the realms of psychological diagnosis and treatment. However, the two roles are not identical and do not inherently call for the same skills. Indeed, a number of courts and scholarly publications have suggested that the roles of therapist and forensic diagnostician should not be served by the same person. According to Lisa R. Askowitz & Michael H. Graham, The Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 CARDOZO L. REV.2027 (1994), one common concern about utilizing a therapist as an expert diagnostic witness stems from a mental health professional's training "to rely heavily on the reported feelings of the child and to base therapy on an assumption that abuse has occurred." Id. at 2091. The authors continue:

Mental health professionals who enter the forensic arena . . . are asked to shift from their more familiar role as the child's helping agent and instead seek to uncover truth, whatever its implications for the child's treatment. The mental health professional thus becomes a potential adversary to the child, and his or her engrained tendency to support or empathize may cloud objectivity.

The American Academy of Child and Adolescent Psychiatry suggests that the mental health professional who seeks to determine whether a child has been abused for forensic purposes and the professional who treats the child should be two different individuals in order to clarify roles and preserve confidentiality in treatment. In contrast to the role of the child's therapist, it is the job of the evaluator to look for the objective truth by collecting extensive data from all parties in the case without concern for the psychological impact of his or her testimony on the parties. Although mental health professionals try to avoid dual relationships in the same case, more and more treating clinicians are subpoenaed to testify for the prosecution in child sexual abuse prosecutions. It is imperative that prosecutors, defense attorneys, and judges understand the differences between these two distinct roles.

Id. at 2092 (quotation marks and footnotes omitted). See also Guidelines for the Clinical Evaluation of Child and Adolescent Sexual...